Q: I am currently a high school student and I am also a minor. Due to the COVID-19 crisis, our school is online and we are using a website called Office 365 and Teams, which is provided by the school. I have changed my profile picture on those websites to an LGBT flag being burned.
A student complained about my profile picture and a teacher told me to take it down and I respectfully told her I was not going to take it down because that would be in violation of my First Amendment rights. She notified administration and administration told me they would change the password of my school account obviously so they could change my picture. When I saw the message I immediately called and complained to the tech department and to the administration, specifically the principal. They told me that my picture would remain until they reached a decision. Today, they decided to block my school account, and I basically cannot do any school work now. I called and they told me I had the choice to come to school so my account could be unblocked with a requirement that I will not upload that picture again or else I will need to do my school work in packets.
Before they blocked my account, they also changed my profile picture, which I immediately changed back to the LGBT burning flag. They are demanding I take down a picture which I am using as a form of expression and speech against the LGBT movement, and also I am using that profile picture because the LGBT movement is against my religion. What my school is doing is very unconstitutional.
A: Your inquiry raises some interesting questions regarding the First Amendment and what is commonly referred to as “student speech.” While students do not “shed their constitutional rights to freedom of speech and expression at the schoolhouse gate,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), the First Amendment rights of public school students “are not automatically coextensive with the rights of adults in other settings.” Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986). First Amendment questions involving student speech are necessarily fact-specific, and it is often hard to predict exactly how a court might come out in connection with certain restrictions.
School officials cannot restrict speech based on its content unless they can reasonably forecast that the student expression will cause substantial disruption or material interference with school activities. This was the holding in Tinker v. Des Moines Indep. Comm. Sch. Dist., in which a high school adopted a no-armband rule (students could wear other symbols, however) after learning some students were planning to wear black armbands to school to protest the Vietnam War. The Supreme Court found that the policy violated the First Amendment because “the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred.” Id. at 514.
School officials may, however, impose reasonable time, place and manner restrictions on speech in public schools so long as those restrictions are (1) content neutral (i.e., they apply to speech equally without regard to its content); (2) narrowly tailored to serve a significant state interest; and (3) leave open ample alternative means of expression. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).
The First Amendment rights of students in a school setting are very fact specific, and we cannot provide legal advice regarding specific situations. Speaking generally, however, while it is possible that the school’s actions here constitute an unconstitutional content-based restriction on speech, it is equally possible that the school found that your speech would cause a “substantial disruption or material interference” with school activities.
Bryan Cave Leighton Paisner LLP is general counsel for the First Amendment Coalition and responds to FAC hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation. No attorney-client relationship has been formed by way of this response.
One Comment
Same result if the student had replaced the profile photo with a photo of someone else–perhaps another student, or a well-known celebrity, or a comic book figure? Apart from concerns about disruption, does the school have a reasonable interest in ensuring that the profile photos displayed online do in fact depict the student?
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