Marilyn Gardner, Lawyer, spent years teaching Advanced School Law at the Doctoral Level. Her focus was court decisions at all levels of government which have had an impact on the governance of schools and what school personnel can do in terms of the operation of schools, curriculum, instruction, assessment and school personnel, and treatment of candidates. Marilyn would always stress that failure to comply with school law can have far reaching and costly implications. In this section, Marilyn Gardner teaches about Students' Freedom of Speech.

1. K-12 Law School Series
Students’ Freedom of Speech
Marilyn Gardner, lawyer, spent years teaching Advanced School Law at the university doctoral
Level. Her focus was court decisions at all levels of government which have had an impact on
the governance of schools and what school personnel can do in terms of the operation of schools,
curriculum, instruction, assessment and school personnel, and treatment of candidates. Marilyn
Gardner, Lawyer, would always stress that failure to comply with school law can have far
reaching and costly implications.
The K-12 School Law Series curriculum focuses on the Pearson Educational
Leadership Series books which focus on the major areas of school litigation and promotes an
understanding of the principles of law that guide the governance and operations of schools while
equipping school authorities with appropriate knowledge, skills and disposition to fulfill their
obligations to school-aged youngsters.
In her research, she identified four Pearson Educational Leadership Series books
(​https://www.amazon.com/School-Law-Public-Schools-Educational/dp/0137072759​) that are
valuable resources on these topics. They cover many facets of K-12 School Law and are
important resources to empower school administrators and staff. They are:
● Law and Ethics in Educational leadership, David Stader ISBN: 978-0-13-268587-0
● School Law and the Public Schools, Nathan Essex, ISBN: 978-0-13-707275-0
● A Teacher’s Pocket Guide to School Law, Nathan Essex, ISBN: 978-0-13-335191-0
● School Law: Cases and Concepts, Michael W. LaMorte, ISBN:978-0-13-707247-7
Pearson’s resources (​https://www.pearson.com/us/sign-in.html​) focus on the major areas
of school-related litigation and the implications of court rulings for school leaders, teachers as
well as the related changes in policy affecting the school environment. School staff will be
empowered to deal in legally defensible ways with school- and community-based situations and
remain current with school related law and policy.
Topic: ​Students’ Freedom of Speech
Pearson Educational Leadership Series
● Sample Scenarios from: ​Law and Ethics in Educational leadership, David Stader
(ISBN: 978-0-13-268587-0) and School Law and the Public Schools, Nathan Essex,
ISBN: 978-0-13-707275-0
I believe there is one word that captures the rights to Student’s Freedom of Speech and that is
the word “Civility.” That is Civility is the controlling factor in student’s freedom of speech.

2. You are going to hear a lot about the ​landmark case of ​Tinker v. Des Moines Independent
Community School District​,
Let’s go back to 1968 and the Vietnam war. Three students wear black armbands to school
protesting the government’s policies in Vietnam. The students were suspended without any
evidence that their protest created a disturbance.
It is interesting that school officials did not prohibit the wearing of other symbols with political
or controversial messages.
For the very first time, the Supreme Court of the United States ruled that students did not “shed
their constitutional rights to freedom of speech or expression at the schoolhouse gate” and that
professional educators must respect the civil rights of students in public schools. This case
allowed students to wear black armbands to protest the Vietnam War in the absence of a
reasonable forecast of substantial disruption in the school.
However, in the 1986 case ​Bethel School District No. 403 v. Fraser​, the Ninth
Circuit court used this same standard to uphold a student’s right to deliver a lewd
speech at a high school assembly. The ruling was eventually reversed by the United
States Supreme Court, giving school administrators the right to control student speech
within certain parameters.
It is critical for principals and administrators to understand those parameters.
Civil Discourse: Balancing Freedom and Responsibility in a Democracy
Let’s use a scenario to study this issue,
You are a principal at a high school and you have just had a report from a speech teacher that a
student delivered an inappropriate speech in her ninth-grade class.
The assignment allowed students to select a topic to speak on and students were encouraged to
be as creative as possible using “moving word pictures” to “express a controversial image or
viewpoint.” The teacher gave you a copy of the speech, which contained elaborate, graphic, and
explicit sexual metaphors.
During questioning, the student does not deny writing and delivering the speech, but defends its
content as “fulfilling the intent of the assignment.” Namely, she argues that the speech “caused
the listeners to visualize the most moving and controversial images” they could imagine. You
have decided to suspend the student for three days, as per your school discipline guidelines.
An attorney representing the family has contacted you threatening a lawsuit based on your
infringement of the student’s First Amendment right of freedom of speech and expression. How
do you respond?

3. Let’s look at three questions
Question 1
Is the student’s speech protected by the First Amendment?
Question 2
Does the school determine when a student’s speech is inappropriate? Do the courts
define what speech can or cannot be controlled?
Question 3
Does the case ​Tinker v. Des Moines​, protect lewd speech in the absence of a substantial
disruption caused by the speech?
Question 1
Is the student’s speech protected by the First Amendment?
Question 1 Hint
You have to think about two things. Does the First Amendment freedom of speech apply to
student speech in the public school?
Does the freedom of speech in the public school extend to allowing controversial or lewd
speech?
The correct answer is no.
While the First Amendment does offer students the protection to advocate unpopular and
controversial views in schools and classrooms as ruled by ​Tinker v. Des Moines​, it does not offer
the same protection of speech to students as it does to adults.
In the 1986 case ​Bethel School District No. 403 v. Fraser​, gave schools a much broader right to
prohibit the use of vulgar, lewd, or offensive speech by students in the public school.
Question 2
Does the school determine when a student’s speech is inappropriate? Do the courts
define what speech can or cannot be controlled?
The answer is yes and yes. Yes, the ​school determines when a student’s speech is inappropriate
and yes, the courts define what speech can or cannot be controlled?
Here we have to refer to a third case when answering this question.
In the ​Miller v. California, ​413 U.S. 15, 93 S. Ct. 2607 the courts applied a three-part test when
determining what speech can be restricted to public school students?

4. The court determined that protections of adult speech are not the same as protection in public
school. Schools can prohibit vulgar and offensive language that does not rise to the legal
definition of “obscene” as defined in the 1973 case ​Miller v. California, ​413 U.S. 15, 93 S. Ct.
2607.
Question 3
But then the question is, does the case ​Tinker v. Des Moines ​protect lewd speech in the absence
of a substantial disruption caused by the speech?
In response, we have two things to think about:
Does a substantial disturbance have to result from a speech or expression to be prohibited by
school officials?
Did this argument arise in the ​Bethel School District No. 403 v. Fraser ​case?
To find detailed explanations of the Court rulings in these scenarios and others as well as the
guidelines principals and administrators should be following when it comes to student freedom
of speech refer to: ​Law and Ethics in Educational leadership, David Stader (ISBN:
978-0-13-268587-0) and School Law and the Public Schools, Nathan Essex, ISBN:
978-0-13-707275-0​.