Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
The term “hate speech” is generally agreed to mean abusive language specifically attacking a person or persons because of their race, color, religion, ethnic group, gender, or sexual orientation. Although the First Amendment still protects much hate speech, there has been substantial debate on the subject in the past two decades among lawmakers, jurists, and legal scholars.
FIRST AMENDMENT AND SEXUALLY EXPLICIT CONTENT IN SCHOOLS
In 1989, the 11th U.S. Circuit Court of Appeals upheld a Florida school board’s removal of a previously approved classroom text because of its perceived vulgarity and sexual explicitness (Virgil v. School Board of Columbia County). Books recommended on this website for removal from the schools are specifically in regards to sexually explicit content.
Conversely, in 1995, a federal district court in Kansas found that a local school board violated the First Amendment when it voted to remove a novel depicting a lesbian romance. In Case v. Unified School District No. 233, the federal court determined that the actual motivation of the board members was that they “disagreed with ideas expressed in the book” and thus “intended to deny students . . . access to those ideas.” The court looked to the highly irregular and erratic manner in which the book was removed as evidence of the board’s improper motivation. The court also noted that the fact the book was available from other sources did not “cure defendants’ improper motivation for removing the book.”
Fortunately, there are many books and resources available at Central Bucks School District and many other schools that express LGBTQ ideology. These books are more than appropriate resources as they DO NOT contain sexually explicit content, vulgarity, racism (based on race, color, religion, ethnic group, gender or sexual orientation) or religious discrimination.
Most recently, however, the Eleventh Circuit in 2009 held that “the First Amendment does not require a school board to leave on its library shelves a purportedly nonfiction book that contains false statements of fact.” In American Civil Liberties Union of Florida, Inc. v. Miami-Dade County School Bd., civil liberties organizations and a local parent challenged the Miami-Dade School Board’s decision to remove the book A Visit to Cuba, and its Spanish-language counterpart ¡Vamos a Cuba!, from its classrooms and libraries. The school board argued that the book did not accurately portray the politics of the country nor the “harsh realities that exist there.” The majority applied Pico and found that the book was not removed over a disagreement of the ideas, but rather because it was factually inaccurate and thus educationally unsuitable.
Accordingly, books containing factually incorrect statements, or racism against religious groups or racism based on being born white, or sexually explicit content, or vulgarity, or pedophilia DO NOT fall under the protection of First Amendment rights.
SCHOOL BOARD AND PARENT FIRST AMENDMENT RIGHTS
The First Amendment ensures that parents and community members will be able to speak freely at school board meetings. Since 2020, there has been significant and heated debates as to the overreach of School Boards censoring parents and with the media adding fuel to the fire. Pennsbury School District’s School Board in Bucks County PA, is made up of a panel with no diversity in leadership and has been repeatedly censoring parents.
In October 2021, provisions of Pennsbury School Board Policy 903 and 922 were challenged in a federal lawsuit brought by four parents and community members who were repeatedly censored at school board meetings. They are represented in the case by attorneys from the Institute for Free Speech, a nonpartisan First Amendment advocacy group that defends political speech rights.
In mid November, a federal judge ordered Pennsbury’s partisan school board to allow parents and community members to criticize school policies and officials by name at public meetings. The court cited abundant evidence in its opinion that the Pennsbury School Board has abused its policies governing speech at meetings to discriminate against speakers based on their viewpoints. The ruling is an important step towards holding school boards everywhere accountable for their treatment of parents and citizens during public comment periods. It also sends a signal to school officials across America that First Amendment rights must be respected at board meetings.
“Public speech at school board meetings is in fact protected by the First Amendment,” wrote Judge Pratter of the United States District Court for the Eastern District of Pennsylvania.
The court’s order prohibits the Pennsbury School Board from enforcing a variety of restrictions on speech at public meetings while the case proceeds, including bans on speech deemed “personally directed,” “personal attacks,” “abusive,” “verbally abusive,” “irrelevant,” “disruptive,” “offensive,” “inappropriate,” or “otherwise inappropriate.” It also orders the Board to stop requiring speakers to announce their home address before making remarks.
STUDENT FIRST AMENDMENT RIGHTS
The First Amendment includes several specific freedoms that are particularly relevant to K-12 students.
Prohibited Speech: School officials cannot formally restrict most student speech. As a general rule, the U.S. Constitution protects student speech that does not “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” In addition, school officials bear the burden of justifying any restrictions on student speech. Nevertheless, “the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” Schools also can punish lewd or offensive speech that occurs at school. But when the school’s concerns are not legitimate, its authority to restrict student speech ends.
Compelled Speech: School districts cannot compel student speech on any topic. “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.” West Virginia v. Barnette (1943)
Retaliation: Teachers and other school officials cannot retaliate against students who engage in protected speech in the classroom, on school grounds, or off school grounds. Although the test varies slightly by circuit, the federal appellate courts have held that students can sue for First Amendment retaliation if they were engaged in protected speech, the school took an adverse action, and the student’s speech was a motivating factor for the school’s action. The school’s adverse action must be something that would deter a student of ordinary firmness from engaging in that speech again. Giving a student poor grades or reviews is a clear example. Notably, the Eighth Circuit recently held that “the stress, anxiety, and ostracization arising from a teacher’s false attribution of racist utterances to a middle-schooler” also “might fit the bill.”
- Students Don’t Have to Leave Their Faith at Home, Alliance Defending Freedom
- 4 Things You Can’t Say in the K-12 Classroom, Foundation for Individual Rights in Education
- K-12 Expression and the First Amendment, Foundation for Individual Rights in Education
- Free Speech and Mental Health in School, Foundation for Individual Rights in Education
- Know Your Rights: Religious Freedom, American Civil Liberties Union
- Know Your Rights: Students’ Rights, American Civil Liberties Union
Students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”Tinker v. Des Moines Independent Community School District (1969).
“This ‘freedom to differ’ in public schools ‘is not limited to things that do not matter much’; it is ‘the right to differ as to things that touch the heart of the existing order.’”W. Va. State Bd. of Educ. v. Barnette (1943).