By Jack Hill

According to the First Amendment of the United States Constitution, citizens have the guaranteed right to express themselves. However, the ability of ordinary citizens to vocalize their thoughts is very different from that of a student. Furthermore, the First Amendment is more applicable in public schools, since they are funded by the government. Private schools, being independent institutions, leave students with fewer rights under the First Amendment. But is there truly a difference in freedom of expression between the two schooling systems? And how is access to freedom of expression challenged by students in school?

The First Amendment reads: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

The First Amendment not only prevents Congress from creating laws that prevent free expression but also ensures that right for the people anywhere and everywhere within the United States. Yet, when a student steps onto the campus of a school, especially a private school, they sign away many of their rights to express themselves unrestricted, understanding that any words or actions that a student expresses are subject to disciplinary action at the discretion of the school. The United States Supreme Court (SCOTUS) has ruled in a series of cases that in public schools students have certain rights, but others have been curtailed. Unlike public schools, however, private schools are not an extension of the government, and therefore those First Amendment rights granted to public school students do not necessarily apply in private schools. 

The US Supreme Court in Washington, DC. Photo courtesy of iStock.

In February 1969, SCOTUS issued one of its most significant rulings on First Amendment rights of expression in public schools. In the case, Tinker v. Des Moines, Mary Beth Tinker, a thirteen-year-old high school student, and a group of friends were all suspended from school after wearing black armbands to protest the Vietnam War. As the case reached SCOTUS, it became one of the most anticipated and influential rulings on the rights of students. SCOTUS ruled that the school’s suspension of students for wearing these armbands was a violation of their First Amendment rights, stating that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” 

Tinker v. Des Moines was the ruling SCOTUS used as a standard, but despite numerous cases, it wasn’t until 2021 that SCOTUS ruled in favor of students again in the battle for First Amendment rights in public schools.  B.L. (Brandi Levy) v. Mahanoy Area School District involved a cheerleader and some vulgar language via the social media platform Snapchat. In the incident, Levy shared very colorful language on Snapchat while using her phone at home. Levy’s snapchat said “**** School, **** softball, **** cheer, **** everything,” expressing her frustration after not making her high school’s cheerleading team. The snapchats, which eventually got back to the school, earned Levy a one-year suspension from the cheer team. Levy and her parents took the suspension to court, arguing that she couldn’t be punished for her words, since she was not at school. In June 2021, SCOTUS ruled in favor of Levy, with Justice Stephen Breyer writing for the majority that it “might be tempting to dismiss B. L.’s words as unworthy of … robust First Amendment protections,” but concluded, “sometimes it is necessary to protect the superfluous in order to preserve the necessary.” Breyer later identified a government interest that the school administration overlooked, preparing students for life after school, maintaining that “the school itself has an interest in protecting a student’s unpopular expression, especially when the expression takes place off-campus.” 

While both Tinker v. Des Moines and B.L. v. Mahanoy Area School District were significant wins for the freedom of expression in public schools, SCOTUS has not permitted unlimited First Amendment rights to public school students. In the case of Tinker v. Des Moines, the court referred to the black armbands as a “nondisruptive, passive expression of a political viewpoint.” With this statement, SCOTUS created the standard for expression that says that school officials cannot censor student expression unless the expression causes a substantial disruption of school activities, or will invade the rights of others. This standard has also been maintained by other Supreme Court rulings. In the case of Bethel School District No. 403 v. Fraser, the Supreme Court ruled that a school did not violate the First Amendment rights of a student by suspending him after he expressed vulgar language in an assembly. Bethel School District No. 403 v. Fraser reaffirms that while students do have some right to freedom of expression, their ability to do so is only to an extent and cannot be disruptive in any way to both education and the school environment. 

Court cases such as Tinker v. Des Moines and Bethel School District No. 403 v. Fraser both occurred before the advent of the internet in the 1990s, but as the world continues to change, and platforms such as social media manifest themselves into the lives of American high schoolers, the words and actions of students off-campus are becoming less private. Cases such as B.L. v. Mahanoy Area School District are gathering national attention and could soon be critical in the debate on rights of expression in high school. B.L. v. Mahanoy Area School District was distinctive in that it not only happened off-campus, unlike Tinker v. Des Moines, but it also happened on social media, which poses a new challenge to what should and should not be punishable by a school. The ability to document what is posted on social media opens the door for punishment for off-campus decorum. Yet, the internet has benefited free expression in many ways by allowing anyone of age with technology to share their thoughts, opinions, and views on social media. It’s undeniable that social media has become one of the most influential aspects of free speech in recent years, and its role in the day-to-day lives of not just high schoolers, but anyone, has become critical. 

All the US Supreme Court rulings apply to public schools, since public school systems are part of the government. But when it comes to private schools, none of the Supreme Court rulings apply. Rules that define what is and is not allowed in private schools are not typically negotiable due to the fact that attending a private school is a choice. Therefore, the rights to expression in a private school are entirely up to the institution, and the rights given in the First Amendment are not guaranteed.

The difference in protection under the First Amendment for a public school student and a private school student fundamentally comes down to the fact that in Virginia, access to public education is a right, and attending a private school is a choice. It is stated in Article VII, Section I of the Constitution of Virginia that “The General Assembly shall provide for a system of free public elementary and secondary schools for all children of school age throughout the Commonwealth, and shall seek to ensure that an educational program of high quality is established and continually maintained.” This means that, in Virginia, all children of age have a constitutional right to education. However, when it comes to private education in Virginia, there are no rights for access to private schooling.

Parents choose private education for a variety of reasons: smaller class sizes, special programs, increased safety, or including a specific religion into a child’s daily curriculum. The decision to send a child to private school over public school is a choice, making private education a privilege. 

Collegiate’s Head of Upper School Patrick Loach described himself as someone who believes that “all schooling is a privilege, not a right.” He believes that “a student is a representative of the school, whether on or off-campus,” and that specifically at Collegiate, “students should be guided by the core values of the school.” These values are honor, love of learning, excellence, respect, and community. At Collegiate, students are expected to embody these core values in their day-to-day lives. Similar to public schools, private schools have handbooks. The Collegiate Family Handbook contains all the school rules and policies, and any infractions to these can lead to consequences. Parents are required to sign an acknowledgment that they understand the Handbook when enrolling their child. 

According to the Collegiate handbook, “Students may be disciplined for any conduct, on or off school grounds, which is illegal, contrary to School policies, disruptive of the educational process, or which endangers persons or property, as long as they are enrolled at the School.” Similar to public schools, Collegiate can punish students for their decorum off-campus and on social media if the school deems it to be disruptive, inappropriate, or a poor representation as a whole. This decision ultimately comes down to the administration. 

Photo courtesy of iStock.

Collegiate senior Eric McDaniel (‘22), believes that the right of a private school to enforce rules and punish students for actions on campus, as well as any illegal activities, is reasonable. However, McDaniel feels that sometimes Collegiate oversteps in their approach to decorum. McDaniel, who runs a popular Instagram account called Eric.Slam that highlights sporting events, has had several run-ins with the administration over his content. McDaniel stated that sometimes “Collegiate censors harmless student posts that they claim poorly represent the school because they are worried about their reputation.” McDaniel is specifically referring to Instagram, in which a post by a Collegiate student that is either on campus or is in any way tied to Collegiate is subject to being asked to take down by the school, which McDaniel feels is too far. As someone who has been asked on numerous occasions to take posts down, McDaniel feels that the school oversteps at times. What McDaniel calls “harmless entertainment,” such as a post about Collegiate students showing up to school in all grey outfits dubbed “groutfits,” is seen by the school as poor representation, and the administration asked McDaniel to take it down. Tyler Brand (‘23) agreed with McDaniel that sometimes he feels that Collegiate oversteps, explaining that unless Collegiate is specifically referenced and it will seriously damage the school’s reputation, Collegiate shouldn’t be able to tell a student to take a social media post down. “It’s our own opinions and pictures,” he said. 

What’s distinctive about private schools from public schools, however, is that the pendulum swings both ways. Since a private school creates its own rules and regulations, it may also permit activity and expression that is unprecedented in public schools. Loach explained that while Collegiate maintains its high standards of decorum and sticks strongly to the core values of the school, it also sometimes cuts students slack and opens the door for opportunities for expression in ways that can’t necessarily happen at a public school. An example of this at Collegiate is the Senior Speech program. Seniors at Collegiate are required to give a Senior Speech, a five-minute speech to the Upper School community about a topic of their choosing. The ability for a school to freely allocate resources like this to students and provide them with speaking opportunities, such as the Senior Speech program, is not something available to most public school students. 

While the rules and enforcement of school policies may be different between public and private schools, the First Amendment rights of each of the two groups are in many ways quite similar. The freedom for students to express themselves is a ongoing debate that is perpetually challenged all over the United States, leaving the door open for future change.

Featured image courtesy of iStock.