FAQ: The First Amendment in Public Schools

Note: The following information is not intended as legal advice.

 

In the United States of America, students do not lose their constitutional rights "at the schoolhouse gate." The protection of students' rights to religious liberty, free speech and privacy—in and out of school—is essential to adhere to the Constitution while ensuring that schools provide a quality education that includes training in our democratic system and values.

 

Does the Establishment Clause apply in public schools?

Yes. The First Amendment's Establishment Clause speaks to what government, including public schools, may or may not do. It does not apply to the private speech of students. Student religious expression, may, however, raise Establishment Clause concerns when such expression takes place before a captive audience in a classroom or a school-sponsored event.

More info: https://www.aclu.org/issues/religious-liberty/government-promotion-religion
http://www.aclu-in.org/issues/freedom/religious-liberty/368-religion-in-public-schools 

May students share their religious faith in public schools?

Yes. Students are free to share their faith with their peers, as long as the activity is not disruptive and does not infringe upon the rights of others.

More info: https://www.aclu.org/aclu-defense-religious-practice-and-expression
https://www.aclu.org/aclu-defense-religious-practice-and-expression-public-schools 

 

Is it constitutional for a public school to require a "moment of silence?"

Yes, if, and only if, the moment of silence is genuinely neutral. A neutral moment of silence does not encourage prayer over any other quiet, contemplative activity.

More info: https://www.aclu.org/aclu-history-defending-separation

 

May students form religious or political clubs in secondary public schools?

Yes, if the school allows other extracurricular groups. Although schools do not have to open or maintain limited open forums such as clubs. But, once they do, they may not discriminate against a student group because of the content of its speech.

More info: https://www.aclu.org/know-your-rights/lgbt-high-school-students-what-do-if-you-face-harassment-school 
Federal Equal Access Act: https://en.wikipedia.org/wiki/Equal_Access_Act 

 

Do outside groups have the right to distribute their material on campus?

No. Adults from outside the school do not have the right to distribute materials to students in a public school.

More info: https://www.aclu.org/joint-statement-current-law-religion-public-schools 

 

May students distribute religious or political literature at school?

Yes. Generally, students have the right to distribute religious or political literature on public school campuses, subject to reasonable time, place and manner restrictions. This means the school may specify at what times the distribution may occur (e.g., during lunch hour or before or after classes begin); where it may occur (e.g., outside the school office) and how it may occur (e.g., from fixed locations as opposed to roving distribution). These restrictions should be reasonable and must apply evenly to all non-school student literature.

More info: https://www.aclu.org/joint-statement-current-law-religion-public-schools 

 

May schools enforce speech codes on school grounds?

Yes, within limits. A school may restrict student speech only where the school has a specific fear of substantial disruption of the educational environment or intrusion upon the rights of others. Public schools have discretion in implementing speech codes, especially those involving harassment. Such codes are usually part of an effort by school officials to create a nondiscriminatory, safe environment where all students are comfortable and free to learn. School officials should take care to respect the individual student's right to express religious or political views or to discuss values and morality.

More info: https://www.aclu.org/your-right-free-expression 

 

May schools regulate off-campus speech and speech on the Internet?

No, with exceptions. Punishing students for off-campus, online speech, including on Facebook or other social media could violate students' First Amendment right to free speech and Fourth Amendment right to be free from unreasonable searches and seizures, unless that activity causes a "substantial disruption" in school or school-related activities

More info: https://www.aclu.org/issues/free-speech/internet-speech 

 

May schools enforce dress codes and hairstyles?

Yes, within limits. Your school does not have the right to use its dress code policy to disfavor a specific message or single out one particular group of students. Your school cannot stop you from wearing something simply because it does not like the message your clothing conveys. But your school can prohibit you from wearing clothing or other items that promote drug use, or that convey "indecent, obscene, or lewd" messages or cause a "substantial disruption" in school or school-related activities. A student's choice of hairstyle or color may also represent either a First Amendment free-expression issue or a Fourteenth Amendment liberty or equal-protection interest.

More info: https://www.aclu.org/issues/free-speech/student-speech-and-privacy/student-dress-code 

 

Even more information!

 

The ACLU defends basic freedoms, every day, for every American. Support us with your tax deductible gift today.