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September 20, 2017
Student Free Speech Rights
As students return to school from their summer break to begin a new academic year, it is important to highlight one of the more challenging issues school districts face today - namely, student free speech rights. Under the First Amendment to the United States Constitution, Congress is prohibited from passing a law " abridging the freedom of speech." As interpreted by the U.S. Supreme Court, the First Amendment applies to state and local governmental entities, including local school districts. For that reason, school districts must consider First Amendment implications when making decisions regarding student speech. Districts must also be cognizant of Massachusetts law, which is more protective of student free speech rights.  
The Supreme Court set the standard for the legality of non-school sponsored student speech under the First Amendment in 1969 when it decided Tinker v. Des Moines School District, 393 U.S. 503 (1969). In Tinker, several students who wore black armbands to protest the Vietnam War were suspended. The Supreme Court found that the students' suspensions were unlawful, and held that students are permitted to express their opinions without "'materially and substantially interfer[ing] with the requirements of appropriate discipline in the operation of the school' and without colliding with the rights of others." Students' free speech rights, however, are not unlimited. Indeed, in the second notable Supreme Court case on this issue, Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986), the Supreme Court upheld the suspension of a student who gave a "vulgar and plainly offensive" speech during an assembly, notwithstanding the fact that the student's speech did not disrupt or substantially interfere with the school's operations. The Supreme Court reasoned that "schools, as instruments of the state, may determine the essential lessons of civil, mature conduct cannot be conveyed in a school that tolerates lewd, indecent, or offensive speech."
Massachusetts law, however, affords public school students in secondary schools more protection than the First Amendment.  General Laws Chapter 71, ยง 82 states:
The right of students to freedom of expression in the public schools of the commonwealth shall not be abridged, provided that such right shall not cause any disruption or disorder within the school. Freedom of expression shall include without limitation, the rights and responsibilities of students, collectively and individually, (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. Any assembly planned by students during regularly scheduled school hours shall be held only at a time and place approved in advance by the school principal or his designee.              
As a result, Massachusetts law protects secondary students' vulgar speech, except when the speech causes disruption or disorder.   Pyle v. School Committee of South Hadley , 423 Mass. 283, 287 (1996)  (holding rights of students wearing vulgar t-shirts were violated when they were suspended by the school district).

Districts are encouraged, when confronted with questionable issues involving student speech, whether in verbal or electronic form, to ensure they comply with the First Amendment and Massachusetts standards.
Please contact any member of our Education Law Team if you have any questions regarding this update.

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Mirick O'Connell is a full-service law firm with offices in Worcester, Westborough and Boston, Massachusetts.  The Firm's principal practice groups include Business; Creditors' Rights, Bankruptcy and Reorganization; Elder Law; Family Law and Divorce; Intellectual Property; Labor, Employment and Employee Benefits; Land Use and Environmental Law; Litigation; Personal Injury; Public and Municipal Law; and Trusts and Estates.
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