School and Free Speech Rights

In this Time of Civil Unrest, Is Your School Violating Your Free Speech Rights?

In this moment of intense political turmoil following the killing of George Floyd, we are seeing reports from Pennsylvania and around the country about schools taking disciplinary action against students for social media posts — sometimes posts that are years old —  that are perceived as racially offensive. We have also seen accounts of student reporters being blocked from covering protests. As so often happens in times of extreme political and social pressure, schools may be ignoring students’ rights in the name of expediency. If you or someone you know is facing threats to your rights, here are a few things you need to know.

1. Students have free speech rights.

At public schools and colleges, students have First Amendment rights. That means your school can’t just suspend, expel or otherwise discipline you for expressing your opinion, even if other people find that opinion offensive. Schools are often more concerned with their public image than with respecting students’ rights, especially when — as now — they are under a tremendous amount of pressure to deal with serious issues like racism on campus. So whether you are under investigation for a social media post, or for attending or attempting to cover a protest, you have rights that deserve protection.

2. Students have due process rights.

Students at public schools and colleges also have due process rights. Broadly speaking, this means that your school can’t suspend or expel you without first giving you a meaningful opportunity to defend yourself. So if you are punished by your school without first being given any kind of disciplinary proceeding, this is a red flag that the school may be violating your due process rights.

3. Just because it is offensive, does not mean it is harassment.

Often, when speech or expression is offensive to people based on legally protected characteristics like race or sex, a school will say that it can take action because the speech is harassment. But most offensive speech does not rise to the level of harassment as defined by law. According to the U.S. Supreme Court, student-on-student harassment is conduct “so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.” Most of the time, a single social media post — especially a post that is not targeted at a specific person — does not rise to this level and is not, legally speaking, harassment. Your school may be using the term “harassment” as cover to punish you for constitutionally protected speech.

4. The right to free speech is more important than ever now.

If you have been accused of posting or saying something offensive and are facing disciplinary action, you may be tempted to just accept the punishment. You probably feel horrible about what happened, your words may have been taken completely out of context, and you may be worried that fighting back will just make people angrier at you. But it is precisely at moments like this that our First Amendment rights are the most critical. If the government — and make no mistake, public schools and universities are part of the government — can punish citizens for expressing unpopular opinions, or can punish them without due process of law, then everyone’s rights are at risk. Even if you have said something you are ashamed of, it is important to fight for your rights. In doing so, you are helping to protect everyone.

If you are facing disciplinary action for a social media post or other protected speech, you may need a lawyer to protect your First Amendment and due process rights. If you have any questions, please do not hesitate to reach out to us.