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Youth & Militarism

Say What?: High School Student Rights


As a student or young person, you've undoubtedly had people – teachers, parents, coaches – tell you what you could do or say about something. You may even have had someone tell you that you couldn't express your opinion, especially about a controversial subject, such as violence among young people, war, or government policy. But you do have a right to your opinions and a right to (respectfully) share them with others – even in your public school.

This is especially important to know today: concerns over "school safety," especially following high-profile school shootings, have led some schools to try to restrict or punish the speech or actions of students even further. Schools may especially fear anything that they think could lead to violence – for instance, fights between people or groups with very different opinions. Concerns over "school safety" have led some schools to try to restrict or punish the speech or actions of students even further.

You do have rights, although the full story is a little complicated. You can't just do or say anything you want at any time you want (more on this later). There is no one set of rules that says what rights public school students do and don't have. Local laws are often different from federal laws: state laws and school board regulations vary from place to place. (Private schools have more room to set their own guidelines.) What follows is not advice that should dictate your strategy but an outline of what some of the current rights are. In fact, many successes have occurred when students have tested the application of such guidelines and rulings.

Rights Under the First Amendment

The Constitution (and the Bill of Rights), the highest law in the United States, guarantees certain rights to US citizens. The First Amendment ensures the rights to free expression and free association – the right to say or write what you want and to form clubs or groups.

Public school administrators, officials, and teachers can't just ignore this constitutional protection completely. But what does it mean for high school students? While the specifics may vary from place to place, it basically means that students can:

  • say and write their opinions (even on controversial subjects);
  • form clubs and organizations;
  • take part in demonstrations and rallies; and
  • express their opinions through leaflets, buttons, armbands, and t-shirts (although with dress codes and uniforms, some of these may be more complicated).

What is a "public forum?"

A student publication is a public forum when school officials have given student editors the authority to make their own content decisions or when by policy or practice the publication has unrestricted use by students. A 1988 Supreme Court decision basically said that something is not a public forum when it is overseen by a faculty member, is supposed to teach particular knowledge or skills, or uses the school's name or resources. Public forum also applies to other types of access to school resources, such as facilities. Yes, this is confusing!

Students have the right to express their opinions in "public forums," to participate in extracurricular activities, and to produce "underground" newspapers or other materials that do not have official school support.

These means of expression and association cannot, however, "materially and substantially" disrupt class or other school activities. You can't organize a club and expect that it would meet during math class, pass out leaflets during class time (unless you have the teacher's permission, of course), or hold a rally that blocks the entrance to the school. You can also probably be censored for "obscene or indecent" language.

Schools can also establish restrictions about when, where, and how materials (like flyers) can be distributed. In general, it is best to do so during lunch or before or after school, in a place that doesn't block the free flow of traffic. Sometimes school officials may ask to see materials ahead of time and to know how you plan to give them out. This may be a time when they would tell you if your ideas break any of the school's guidelines.

Schools are not allowed to censor only one side of a controversial subject. If, for instance, your school invites in a military recruiter to talk about why the military is good, the school cannot prevent someone with an opposing point of view from also having the same opportunity.

One of the issues that has gained increasing attention in the past few years is Web use and the creation of Web pages. Several schools have tried to suspend or expel students for Web pages that they have designed outside of school. Several courts have overturned these punishments, saying that schools can't censor free speech that takes place outside of school – even if the topic is school.

Supreme Court Rulings

Two important court rulings are significant for students:

Tinker v. Des Moines Independent School District (1969): In 1965, Des Moines (Iowa) schools suspended two teenagers for wearing black armbands to protest the war in Vietnam. The case went all the way to the Supreme Court. The Court ruled that in public schools, which are run by the government, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It said that schools could only limit students' freedom of expression if their writings or behaviors were very disruptive to the functioning of school or invaded the rights of others.

Hazelwood School District v. Kuhlmeier (1988): A Missouri school censored articles in the school newspaper about teen pregnancy and the effects of divorce on children. In this Supreme Court case, the decision allowed public school administrators to censor student work in the school-sponsored newspaper because the issues were considered controversial. In effect, the court ruled that censorship can occur when the material is not in a public forum.

Schools may be able to censor school publications or activities like radio programs, newspapers, plays, or art exhibits. But, they cannot censor underground newspapers or other forms of expression.

The Hazelwood ruling may seem to contradict the earlier ruling in the Tinker case and in some ways it does. But it is also different. In this case, the school officially sponsored and supported the publication. And, in instances like this, the school must demonstrate some educational reason for censoring. This ruling has often been broadly interpreted. It is unclear how this ruling applies to extracurricular activities.

The Equal Access Act (1984)

The Lambda Legal Defense and Education Fund has more information on the Equal Access Act (including the relevant sections of the law and court cases) and other resources for defending groups such as Gay/Straight Alliances.

This federal law protects student groups in public high schools. It applies to schools which meet these conditions: the high school is public, it receives federal financial assistance, and it allows any noncurriculum-related student group to meet (in the school) outside of school time. (This last condition is called a "limited open forum" and is rather complicated; see the Lambda Legal Defense and Education Fund for more information.) If these three conditions apply, a school can't tell students they can't meet just because the school doesn't like what the students are meeting about. For instance, this law has helped young people who have had difficulty starting Gay/Straight Alliances in their schools.

Different States' Rights and Restrictions

California:

In California, students' rights are specifically protected. Some of these are spelled out in the law; others are interpreted from the law. Each school district and county board of education is supposed to have rules and regulations stating these policies.

The "Student Free Expression Law" says that students have the right to free speech in areas such as:

  • the use of bulletin boards;
  • the distribution of printed materials or publications (such as newspapers or yearbooks); and
  • wearing buttons or badges.

The Committee Opposed to Militarism and the Draft has prepared a brochure (available on-line) specific to California. See: http://www.comdsd.org/youth.htm

This means that students also have the right to:

  • hand out leaflets;
  • circulate petitions;
  • conduct polls;
  • organize clubs or sponsor speakers or activities; and set up information tables.

What is prohibited by California law:

  • Obscene materials;
  • Libelous or slanderous material; and
  • Material that encourages students to commit unlawful acts or acts that would substantially disrupt school.

Kansas:

Kansas has a similar lawto California. It goes further, saying that material "shall not be suppressed solely because it involves political or controversial subject matter."

Massachusetts:

Massachusetts spells out what students' rights are: the "Massachusetts Student Free Expression Law" says that students have the right "(a) to express their views through speech and symbols, (b) to write, publish, and disseminate their views, (c) to assemble peaceably on school property for the purpose of expressing their opinions."

Schools are not allowed to censor only one side of a controversial subject.

Michigan:

Michigan has a policy that doesn't specifically say what rights students have, but it sets guidelines for making rules fair. These apply to much more than issues of free speech and association but of course can help protect students in these cases as well.

Michigan Board of Education: Fair School Rules:

  • School policies have to clearly say what is allowed and what is not.
  • School rules can't be so complicated the average student won't understand them.
  • Rules have to be related to valid educational purposes.
  • Rules can't restrict activities that are constitutionally protected.
  • School policies have to tell you what the punishment is for breaking the rules.
  • The punishment can't be more serious than the misconduct, nor harsher than what the school district itself is authorized to do.
  • A copy of the rules and procedures must be made available to all students.

Other states

Other states, such as Colorado and Iowa, also have "High School Free Expression" laws that give students more free speech rights than the Constitution requires. (You can read these laws if you scroll to the bottom of http://www.splc.org/resources/high.school/hazelwood.html and follow the links.) Some states, such as Pennsylvania, have department of education regulations that may protect student rights.

What You Can Do to Exercise Your Rights and Who Can Help You

Just because you're a public school student doesn't mean that you don't have rights! In many places, laws and policies specifically say that you the right to express your opinion. In other places, you may have to refer to the US Constitution.

If you feel that your rights are being violated, you should ask to see a copy of the school district's or board's policy on students' First Amendment rights. (The principal should have a copy.) Often, letting officials know that you know that students have rights and reminding them of this by having them read the policy is enough. Other times, you may have to take your concerns to someone in the district and ask for her or his assistance. Here are some other groups that can help you:

American Civil Liberties Union (ACLU):

The ACLU advocates for individual rights which should be protected under the US Constitution. It educates, lobbies, and takes on court cases on a broad array of issues. The ACLU has a section on its website specifically for young people. It answers questions about rights, including privacy concerns (in school, when stopped by the police, etc.) and your right to a hearing and punishment that is not too harsh; gives examples of recent cases; and has a student organizing guide. Local chapters of the ACLU can also help you to research laws in your area or provide other support.

Student Press Law Center:

The SPLC is a nonprofit organization dedicated to providing legal help and information to the student media and journalism educators. Their website features a wide range of information about legal rights of students and student publications.

The Lambda Legal Defense and Education Fund:

The LLDEF works for the civil rights of lesbians, gay men, and people with HIV/AIDS through litigation, education, and public policy work. Their website includes information for securing civil rights and improving the school climate.

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