School Protest Laws: Are They Different in High School and College?

"A male face with a taped mouth and a red cross on it symbolizing censorship.Censorship is all around.Freedom of speech is the political right to communicate one's opinions and ideas via speech. The term freedom of expression is sometimes used synonymously, but includes any act of seeking, receiving and imparting information or ideas, regardless of the medium used. In practice, the right to freedom of speech is not absolute in any country and the right is commonly subject to limitations, as with libel, slander, obscenity, copyright violation and incitement to commit a crime."
By Christopher Coble, Esq. on September 25, 2019 12:48 PM

Ahead of the Global Youth Climate Strikes that took place worldwide over the weekend, Florida high school senior Elijah Ruby handed out fliers on campus advertising the event. According to the Miami Herald, Ruby had previously been a part of his school's Maritime Magnet program with a maritime industry-related curriculum that encouraged environmental stewardship of coral reefs and oceans.

But Ruby says a school administrator suspended him over the fliers, and told him he'd also be banned from the school's prom and other class events. That ban was eventually rescinded, but Ruby's case raises questions about what kind of student speech and protest is acceptable on public school campuses, and whether that changes when students move on to college.

High School Speech

"Schools have processes in place regarding approvals for the distribution of materials, including fliers, on campus," a spokesperson for Broward County School District told the Herald, regarding Ruby's suspension. "Students are also expected to adhere to guidance provided to them regarding the distribution of these materials. Any disciplinary measures are in accordance with the Code Book of Student Conduct."

While schools do have some authority over student speech, the Supreme Court has famously ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." High school students generally have the right to peaceful protest, so long as their behavior (or lack thereof) is not disruptive or aggressive. When it comes to speech, and handing out flyers, the line between discourse and disruption can get murky.

Ruby said he had previously posted fliers, had them removed by the school, and been warned against handing more. The school district told the Herald that disciplinary action was taken "only because of the student's noncompliance of the request from the school's administration and misrepresentation of the School District." The district claimed Ruby's flyers implied that "the District was organizing the strike," and if he had "reprinted and redistributed the flyers without the misleading impression that the District was organizing the strike, the administration would not have taken disciplinary action."

In some cases, a high school or school district's interest in stemming the spread of misinformation may trump a student's free speech interest.

Higher Education Speech

As a general rule, colleges and universities have less control over students' free speech rights than elementary and high school teachers and administrators. Institutions of higher learning are no longer seen as "in loco parentis" (or in place of parents), and students are viewed as adults.

Even schools that have tried to pass regulations limiting hate speech on campus have been rebuffed, with courts citing that free speech principles "acquire a special significance in the university setting, where the free and unfettered interplay of competing views is essential to the institution's educational mission."

Anyone who's even visited a college campus is familiar with the ubiquity of flyers posted, wallpaper-like, from dining hall to dorm. Still, it's not a bad idea to run the content of a flyer by administrators first, or make sure you've the proper permits.

And if you've been punished for speech at school -- whether in high school or higher ed -- contact an experienced education attorney regarding your legal options.

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