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First Amendment Rights of Students

- by Brian S. Batterton
Legal & Liability Risk Management Institute | School Resources & Training Institute

School administrators are often forced to decide whether a student’s writing, speech or conduct is “protected speech” according to the First Amendment or a violation of school rules deserving of discipline.   Imagine yourself as a school administrator being notified by a teacher that he or she has just discovered, written in a student’s notebook, the following:

As I walk to school from my sisters  [sic] car my stomach ties itself in nots. [sic] I have nervousness tingling [sic] up and down my spine and my heart races. No one knows what is going to happen. I have the gun hidden in my pocket. I cross the lawn and hed [sic] to my locker on A hall. Smiling sweetly to my friends hoping they don't notice the cold sweat that has developed on my forehead [sic]. I'm walking up to the front office when the bell rings for class to start. So afraid that I think I might pass out. I ask if my mother dropped off a book I need. No. My first to [sic] classes pass by my heart thumping so hard I'm afraid every one can hear it. Constantly I can feel the gun in my pocket. 3rd period, 4th, 5th then 6th period [sic] my time is coming. I enter the class room my face pale. My stomach has tied itself in ___ knots ___ be able to untie them. Then he starts taking role. Yes, my math teacher. I lothe [sic] him with every bone in my body. Why? I don't know. This is it. I stand up and pull the gun from my pocket. BANG the force blows him back and every one in the class sit [sic] there in shock. BANG he falls to the  floor and some one lets out an ear piercing scream. Shaking I put the gun in my pocket and run  from the room. By now the school police officer is running after me. Easy I can out run him. Out the doors, almost to the car. I can get away. BANG this time a shot was fired at me. I turn just in time to see the bullet running at me. Almost like its [sic] in slow motion. Then, the bell rings, I pick my head off my desk, shake my head and gather up my books off to my next class.i

This is exactly what a teacher at Georgia high school found when he confiscated a notebook from a student who had passed the notebook to a classmate.  The teacher took this notebook to a school administrator and later, a school police officer.  The next day, a meeting was held with the student and her parents, which resulted in the student being sent home.  The math teacher referenced in the student’s writing was consulted and shown the narrative; he said that he felt “shocked” and “threatened” and was uncomfortable with the thought of having that student in his class.  After a meeting between school administrators and the school principal, it was decided that the student violated three school rules.  The primary rule at issue was the rule titled “Threat of bodily harm” which states, in pertinent part “A student shall not attempt to cause physical injury, threaten bodily harm, or behave in such a way as could reasonably cause physical injury to a school employee: (a) on the school grounds at any time.”ii 

The principal subsequently suspended the student for ten (10) days and recommended her expulsion, but he deferred the decision to expel to an independent arbiter.  The arbiter agreed and the student was expelled after a disciplinary hearing.  The student appealed to the Fulton County Board of Education, and they upheld the suspension but reversed the expulsion.  Two years later, the parents of the student filed suit on her behalf in federal district court alleging that her rights guaranteed by the First Amendment to the United States Constitution had been violated.  Some time later, the district court granted summary judgment in favor of the Board of Education and other defendants.

There were two issues before the court in this suit.  The first issue was whether the district court erred when it found that the defendants did not violate the plaintiff’s First Amendment rights and thus, granted summary judgment for the defendants.  The second issue was whether district court erred when it held that the plaintiffs were not entitled to have the plaintiff’s school record expunged of documentation relating to her suspension.

In its analysis of this case, the Eleventh Circuit Court of Appeals first noted that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”iii  Next, the court stated that, in the Eleventh Circuit, school officials must have the ability to control speech within the school as long as the speech poses a material and substantial disruption that is more than a brief, easily overlooked, de minimis impact.iv 

In light of the above rules, the court then considered that, in an eight year period prior to this incident, there have been at least sixteen student perpetrated school shootings.  With this in mind, they noted that safety has always been a concern in schools.  In fact, the No Child Left Behind Act of 2001, in § 901, allows students who attend persistently dangerous schools to transfer to a school that is considered “safe.” 

In light of the violent writing at issue in Boim, and the fact that the notebook was passed to another student, the court found that the plaintiff’s conduct was reasonably likely to cause a material and substantial disruption to the maintenance of order and decorum within the school.  The court found it immaterial that the student stated that she did not intentionally disseminate the notebook.  Simply by failing to exercise strict control over the notebook, the student increased the likelihood that disruption would result.  Further, there is climate of increased government oversight regarding school violence; this indicates that schools have a compelling interest to act quickly to prevent violence in school.  Thus, the court held that the defendants in this case did not violate the student’s First Amendment rights.

As to the second issue of whether the plaintiff was entitled to have her disciplinary record expunged, the court held that, since the conduct of the defendants did not violate the First Amendment, there is no violation in failing to expunge her disciplinary record in relation to this incident.

Therefore, summary judgment was appropriate for all defendants.


i Boim v. Fulton County School Dist. et al., 494 F.3d 978, 980-981 (11th Cir. 2007)

ii 981

iii Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969)

iv Boim, 494 F.3d at 983 (citing Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004)

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