Don't kids have 1st Amendment rights?

A spirited classroom debate concerning physics and religion is probably not what legislators had in mind when they passed laws against student bullying, and the First Amendment protects such speech. But an escalated, unmonitored, and protracted oral fight

Question: I'm a junior at a public high school in Los Angeles. Our school has a policy against bullying and a bunch of rules that students, teachers, and the administration have to follow. My AP physics class was discussing a recent discovery about gravitational radiation from the Big Bang. One student started arguing that the evidence of the Big Bang supported his belief in an "intelligent designer" of the universe. I argued against this and said it proved only the existence of intelligent physicists. The teacher stepped in and cautioned me against "bullying" the other student about his religious beliefs! I wasn't raising my voice or anything and the other student was arguing just as much as I was! Don't I have a right to state my opinion? If this is a political or religious issue, isn't my argument protected by the First Amendment?

Answer: We'll get to the answers shortly but first, applause to you and your classmates for grappling with difficult, literally cosmic issues! As for your (and the other student's) rights, the answer is, in part, that you are all covered by constitutional protections. But, there are many conditions and caveats that arise within the context of a school.

What is Bullying?

Although "bullying" is defined by each school's policy according to state law, it essentially refers to behavior between or among students that is unwanted, aggressive or otherwise offensive, and arises within a real or perceived power imbalance. For more information about bullying, see our article, Teen Cyberbullying and Harassment.

The incident you describe does not appear to fit that definition. You may want to ask to see the school's anti-bullying policy if you have not already done that.

School responsibility to prevent and address bullying

Your school has an obligation under California law to establish policies and procedures that define bullying and set out how students can report bullying, the steps that will be taken to protect those who report, how reports are investigated, and what happens if investigators find bullying has occurred. (Cal. Ed. Code §234.1.)

The California law protects students from bullying based on religion. But, the law also refers to intimidation, harassment, discrimination, and violence in the definition of prohibited conduct. The spirited classroom debate you describe does not appear to be the type of conduct the California legislature intended to address by enacting the law.

Special obligations of public schools

In addition to its obligations under state law, any school receiving federal funds must institute and follow a policy that complies with federal guidelines prohibiting discrimination, harassment, or intimidation based on certain protected characteristics (such as religion). Public schools such as your high school fall within this group. Again, however, your argument with your classmate does not fit the definition of bullying set out in those guidelines.

First Amendment Rights and Students

The First Amendment to the U.S. Constitution guarantees freedom of expression. Students in public schools are clearly covered by the First Amendment. In 2011, the U.S. Supreme Court reaffirmed the First Amendment Rights of minors in a decision holding that a California law that restricted minors' access to violent video games violated the First Amendment. (Brown v. Entertainment Merchants Association, 131 S.Ct. 2729 (2011).)

But, the Supreme Court has also made clear that students do not enjoy the full extent of First Amendment rights that adults do. In several decisions, the Supreme Court has balanced the free speech rights of students against the legitimate need of school officials to maintain a safe, functional, and productive educational environment. After all, a school is not a public square where people come and go at will and are allowed, in general, to speak freely. A school has a particular mission—to educate students—and the First Amendment allows schools to institute policies and rules that promote that mission, even at the cost of a reasonable limitation on student expression.

Under the Supreme Court's decisions, a school may not interfere with a student's right of free expression unless that speech:

  • will "materially and substantially disrupt" the school environment
  • is done in a manner that is lewd or vulgar
  • is presented as if endorsed by the school, or
  • promotes illegal drug use.

This is not necessarily a list of the only limitations a school may constitutionally impose on student expression. First Amendment law is a dynamic area of law and we can expect future decisions by courts on student free speech parameters.

Under these acceptable limitations, if your debate with your classmate had prevented the class from its mission of physics instruction, the school could have legitimately intervened. Or, if you had taken the debate out into the hall and escalated it to a shouting match that disrupted classes, the school could have stopped you.

However, a reasonable debate in class about a topic in course materials is probably protected speech.

See a Lawyer

It sounds as if the incident in your class is unlikely to lead to further action. But, if the school takes action against you, talk to your parents about seeing a lawyer with experience in civil rights law.

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