Students’ Rights

Lauren Berta, Editor-in-Chief

Hang on for a minute...we're trying to find some more stories you might like.

Email This Story

What rights do students have?


Recently, it has become important to know what rights students do and do not have when they enter the school building. This school year, students have tried to exercise their right to protest and their right to freedom of speech; however, these students have faced consequences for their actions. Now, more than ever, it is important to know what rights students actually have.

All of our rights stem from the Constitution, in particular, the Bill of Rights and the other amendments. One of the most well-known amendments is the First, which guarantees freedom of religion, speech, press, peaceful assembly and petition. Every citizen of the U.S. gets these rights, but there are special exceptions for minors.

Schools have legal obligations to educate minors, but they also have the responsibility to protect them. Sometimes these responsibilities conflict, creating gray area where students are unsure of what rights they actually have in school. Each case where students feel their rights are violated, is a balancing act of students’ rights to free speech and the school’s legal responsibilities.  

Tinker v. Des Moines


The 1969 Supreme Court case Tinker v. Des Moines Independent Community School District has set a precedent for student’s free speech rights. In the case, a group of students wore black armbands to school to protest the United States’ involvement in the Vietnam War. As a result, the students were suspended. Their parents sued the school system, claiming the school was violating their right to free speech. At the Supreme Court, the justices decided that the armbands were free speech and suspending them had violated their constitutional rights. Justice Abe Fortas wrote the famous line, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”


Bethel School District v. Fraser


Despite Justice Fortas’ decision that students still have their rights in school, a student’s constitutional rights can be limited if their actions are interfering with another person’s rights. In some cases, students’ right to receive an education trumps a few students’ right to free speech. The Supreme Court set a precedent for this in Bethel School District No. 403 v. Fraser. In this court case, a student gave a speech at a school assembly that included what the school deemed to be lewd or inappropriate language. The school suspended the student for language which “substantially interferes with the educational process.” The court ruled in favor of the school and decided that the school did have the right to discipline the student. The court drew a distinction between the armband featured within Tinker v Des Mois, which was understood to be non-interruptive political speech, and the inappropriate joke the student made at the assembly.


Hazelwood School District v. Kuhlmeier

Another Supreme Court case that limited students’ right to free speech was Hazelwood School District v. Kuhlmeier.  In this case, Kuhlmeier, the school principal, censored two stories from the school newspaper. The students sued on the grounds that their First Amendment right to free speech, in this case freedom of the press, had been violated. The court ruled in favor of the school principal, saying that the school does not have to support certain types of speech. The court also said that since the newspaper was a school sponsored publication, distributed to the school’s students, the school could reserve the right to censor it to uphold the shared values of the community. The First Amendment right to free speech was not abridged as long as the censorship was “reasonably related to legitimate pedagogical concerns,” according to Justice Byron R. White. Pedagogical means relating to teaching, so the phrase Justice White used here, “pedagogical concerns” is one element where teachers and administrators draw their authority to regulate students’ freedom of speech.


New Voices Act


While the Hazelwood case established schools’ authority to censor students in areas of journalism, many states have created laws limiting their ability to do this. One law, which exists in various forms within 13 states, is the New Voices Act. This legislation makes it harder to censor student journalists. It limits censorship to cases where the student speech is “libelous, an invasion of privacy or creates a ‘clear and present danger’ or a ‘material and substantial disruption’ of the school,” according to The New Voices Act has not been passed in Indiana as of yet, but has been proposed three times in the state legislature. It will be up for vote again next session and might change what powers school districts have over students’ free speech.


Dress Code


Another element of the Hazelwood case is the phrase “legitimate pedagogical concerns” which has been used to justify different rules and pieces of legislation since. One example of this is in the dress code. Students who ask a teacher or administrator about why certain types of clothing are prohibited, might get the answer: ‘It’s disruptive to the school environment.’ Both the Bethel School District case and the Hazelwood School District case established a precedent for this supposition, both favoring the school district. At first Tinker v. Des Moines might look like the exception because it favored the student, but if you look closely it also gives certain liberties to the schools. While the decision itself sided with the students, the majority opinion of the court, lays the groundwork for cases where the court would not side with the students. Fortas specified that the schools could suppress speech as long as they could prove that the speech would interfere significantly to the operation of the school.

With the example of dress code, the school can regulate how students dress if it detracts from the learning environment. Many states have laws that allow school boards to make dress code rules. That being said, if the school could not prove that the clothing substantially affected the work environment of the school, then there could be grounds that a student’s free speech is being limited. Modern day dress codes, including rules prohibiting things like cleavage, midriffs or leggings, have not been addressed by the Supreme Court to date.


Unprotected Speech


According to the Supreme Court, in Tinker v. Des Moines, the speech was political speech deserving of protection, but the speech in Bethel School District v. Fraser was not deemed political speech and not deserving of protection. In the Hazelwood School District v. Kuhlmeier case, the speech was not protected. These cases establish that the Supreme Court has the right to define what speech is protected and what is not. The types of speech that are not protected by the First Amendment fall under certain categories. Most people know that child pornography, speech violating copyright rules, defamation (lying to harm someone’s reputation) and perjury (lying under oath in court) are illegal, but other areas include: obscenity, blackmail, fighting words (speech used to incite violence or to encourage the audience to break the law) or threats. All of these are instances where free speech does not apply, but for anybody under the age of eighteen, the rules on what they can say are even stricter in a school setting.


Morse v. Frederick


An example of ‘fighting words’ in a school setting is Morse v. Frederick. In this case, a student held up a banner with the words “Bong Hits 4 Jesus” at a school sponsored event. The school suspended the student for ten days. The student sued because the school violated his First Amendment rights. The Supreme Court ruled that the school could suspend the student because the message encouraged the use of illegal drugs. The message did not qualify as political speech and was therefore not protected. The court upheld the school rule prohibiting students from displaying messages in support of drug use as constitutional. In this case, the court established that the free speech rights of students of public schools are not as far reaching as the free speech rights of adults. While Tinker v. Des Moines did set a precedent for the protection of students’ free speech rights, this does not always have to be applied to modern situations and new cases.




Free speech was an important issue this year with the national walkout and its involvement of Homestead students. Students who walked out on March 14, a month after the Parkland shooting, did receive disciplinary action for their protest. While the walkout may not be strictly an expression of speech, it was a form of protest, and protest is protected along with speech in the First Amendment. But here is where students’ constitutional rights collide with the restrictions on them as a minor. Minors are required to be in school by federal law, so in this area, the school can assert authority. Homestead students who walked out were given truancies, and were punished according to the normal punishment for a truancy. If a student had multiple truancies before the walkout or had received infractions before, than their punishment for the walkout truancy might be considerably harsher than someone whose walkout truancy was their first offense. Because these punishments had nothing to do with the actual speech or the nature of the protest (the endorsement of common sense gun control), the school is within its rights to punish the students for not being in class. Students who participated in the walkout felt like their safety was being threatened.

“I felt that it was the time to take action when students lives were endangered,” Eilidh Drummond (11) said.

It was important to them because they could see the devastation guns caused in schools after Parkland.

“I wanted to bring awareness to the topic because no child or parent should worry about getting shot in a public place,” Emma Gillam (11) said. “Whether you believe in completely getting rid of guns or just reform, they shouldn’t have to worry about getting murdered in school. It is a terrible reality that we have to live with and we should confront the problem.”


In Loco Parentis


When students were considering walking out March 14th, some people thought administration should just let students walk. At first this seems like a viable option, but there are some significant conflicts that prevent this issue from being cut and dry. Schools, including individual teachers and administrators, have what is called “in loco parentis.” This is latin for “in the place of a parent.” While students are on school grounds, the school has a legal responsibility to protect them as their parents would. This means punishing students as their parents would or restricting certain behaviors of which parents would not approve. In loco parentis is controversial because it does limit students’ rights at certain points.


Private Schools


There is a distinction between public and private schools. The rights guaranteed to citizens in the Bill or Rights are what are called ‘negative rights.’ What this means is that citizens do not necessarily have the right of free speech, Congress is just prohibited from preventing citizens from exercising that right. Negative rights prevent the federal government from doing something to citizens. This can be seen in the actual language of the Constitution; the First Amendment begins with, “Congress shall make no law,“ or the Second Amendment when it says the people’s right to bear arms “shall not be infringed.”

A public school is one funded by the government and is technically government property, which means at a public school, the rights guaranteed to citizens in the Bill or Rights apply. However, a private school is one that is not funded by the government nor is it government property. This is why private schools can enforce a dress code–the Constitution provides citizens protection from the federal government only.


Who Makes the Rules


The rules in the code of conduct for a school are approved by the school board. The school board annually reviews the handbooks for elementary, middle and high school. The school board also receives legal counsel so that the rules they make do not conflict with any federal laws or state statutes.

“The handbooks are the product of years of experience under multiple administrations, with alterations done to address new issues and updates,” Meagan Milne, president of SACS Board of School Trustees, said.

Students can find the school handbook on the Homestead SACS page under ‘Resources’ and ‘For Students.’ As long as the rule coincides with the school board’s policy, an administrative body has the freedom to create individual rules for their school. This includes dress code or cell phone policy.

“Things like attendance policies and consequences are mostly local unless designated by statue,” Park Ginder, principal, said.

Print Friendly, PDF & Email

Leave a Comment

If you want a picture to show with your comment, go get a gravatar.