Free Speech in Schools: A Guide for Black Students and Parents

Free speech in schools

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Earlier this month, an 11-year-old boy from Lakeland, Florida was arrested after refusing to say the Pledge of allegiance. The boy, a sixth-grader, told his teacher that he viewed the pledge as racist. According to school officials, the boy became unruly when asked to leave the classroom. Police charged the boy with “disruption of a school facility and resisting an officer without violence.”   He was also suspended for three days.

Though what happened in Florida this month is shocking, it’s not the first time it’s happened. In light of current events, it likely won’t be the last. Colin Kaepernick’s courageous decision to kneel in protest during the National Anthem moved young people. While they may not “take a knee,” they show solidarity by refusing to stand for the Pledge of Allegiance. Students have also participated in walk-outs or other protests. Unfortunately, some schools overreact when students protest. Even worse, while students of all races have become more socially active, African American children are more likely to be punished, priming them for the school-to-prison pipeline.

Fortunately, no matter how school officials feel about student activities, a student’s right to protest is protected by the U.S. Constitution. This post will explain what African American parents (and students) need to know about free speech in schools.

Free Speech in Schools: The Basics

The First Amendment says, “Congress shall make no law . . . abridging the freedom of speech.”  Of course, the phrase “speech” refers to both written and spoken words.   But the term also applies to conduct that is intended to send a message. For example, when sprinters Tommie Smith and John Carlos raised black gloved fists at the 1968 Olympics, they used no words, yet their actions spoke volumes.

Though the First Amendment applies to many types of conduct, it does not apply in all places. The Supreme Court has consistently held that the amendment applies only to government actors. Because public schools are run and funded by the government, they must comply with the First Amendment. By contrast, private schools have no such obligation.

Finally, though parents may be surprised to learn this, the First Amendment does not have an age limit. For years, the Supreme Court has held that public school students have First Amendment rights. Of course, because schools have to maintain order and decorum, students’ rights in the classroom are somewhat more limited than in other areas.

Free Speech in Schools: The Flag and the Pledge

First Amendment law is notoriously tricky and free speech cases are full of contradictions. Nevertheless, there are some clear rules about free speech in schools.

The Supreme Court has clearly stated that children cannot be forced to say the Pledge of Allegiance. Though the pledge is making headlines now, the rule against forced pledges dates back to 1943. In that year, the Supreme Court decided West Virginia v. Barnette. West Virginia required all students to say the pledge. Jehovah’s Witness parents complained that their children would be punished for their religious beliefs. The Court strongly rejected West Virginia’s arguments, stating:

“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. If there are any circumstances which permit an exception, they do not now occur to us.”

In other words, the government cannot force a person to speak against their will.

Though some argue that the failure to recite the Pledge or stand for the anthem is unpatriotic, many types of “unpatriotic” conduct are protected by the First Amendment – even burning the flag. The First Amendment does not allow the government to approve speech it likes while shutting down critical messages.

Free Speech in Schools: The Right to Protest

The Constitution grants rights to all U.S. citizens, even the young. In the late 1960s, three students protested the Vietnam War by wearing black armbands to school. They were silent and caused no disruption, but the school still suspended them. Their parents sued. In Tinker v. Des Moines, the Supreme Court ruled in favor of the students. The Court explained that school officials cannot ban student speech simply because they disagree with it. However, the Court cautioned that schools retain the ability to discipline students for conduct that would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

Over the years, the Court has struggled to define what conduct interferes with school discipline. Nevertheless, Tinker and other cases illustrate that the First Amendment does not end when the school bell rings.

What Parents (and Students) can Do

When a student’s free speech rights are suppressed, students and parents may wonder what to do. Though each scenario is different, here are a few things that might help.

  • Make a record. Because schools and students often disagree about the facts, getting evidence of what happened is extremely important. Older students should use their phones to record any issues (or ask their friends to do so). If phones are not available, parents should ask the child to tell them what happened. Ask for the names of any teachers or students who witnessed the incident.
  • Call the school. Parents should talk to teachers and administrators. Let them know that you support your student’s right to free speech. Give them the opportunity to clarify or apologize.
  • Call a lawyer. If you are dissatisfied with the school’s response or believe that it might violate the Constitution, you will need to take further action. Constitutional law is complex, so you should get professional legal help. Use The African American Attorney Network to find African American attorneys in your area.


DISCLAIMER: Nothing contained herein should be construed as legal advice or the creation of an attorney-client relationship.  Should you need legal advice please seek the assistance and advice of an attorney in our directory or one that you locate by other means.