Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the government for a redress of grievances. -First Amendment of the United States Constitution ratified December 15, 1791.
A. The First Amendment: The first provision of the Bill of Rights establishes the rights essential to a democratic society and most cherished by Americans: the right to speak and worship freely, the right to assemble and petition government, and the right to a free press. It embodies human rights that are celebrated throughout the world. The United Nations Universal Declaration of Human Rights states, in fact, that “Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.” Few other countries, however, provide the level of protection for free speech that the First Amendment to our Constitution guarantees.
The potential for tyranny by the state and abuse of government authority particularly worried framers of the Bill of Rights. In a letter to James Madison, December 20, 1787, Thomas Jefferson argued, “…a bill of rights is what the people are entitled to against every government on earth, general or particular, and what no just government should refuse or rest on inference.” Thus, before enumerating rights, the language of the First Amendment begins by prohibiting certain government conduct that would obstruct certain rights–i.e., “Congress shall make no law respecting….” These strictures, like most aspects of the Constitution, control only what the government may do, and have no effect on private individuals or businesses, which can do many things government officials cannot do.
Since public schools and public libraries are public institutions, they are bound by the obligations imposed by the First Amendment as well as many other provisions of the Constitution. However, as this manual will make clear, the First Amendment applies somewhat differently in schools than it does in many other public institutions.
B. The Public Schools: Public schools are the institution which in some respects most embody the goals of the First Amendment: to create informed citizenry capable of self-governance. As many commentators have observed, a democracy relies on an informed and critical electorate to prosper. As Noah Webster observed in 1785: “It is scarcely possible to reduce an enlightened people to civil or ecclesiastical tyranny.” And on the eve of the Constitutional Convention in 1787, Benjamin Rush stated that “…to conform the principles, morals, and manners of our citizens to our republican form of government, it is absolutely necessary that knowledge of every kind should be disseminated through every part of the Unites States.” Not surprisingly, universal access to free public education has long been viewed as an essential to realize our democratic ideals. According to the Supreme Court in Keyishian v. Board of Education, 1967:
The classroom is peculiarly the “marketplace of ideas.” The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers “truth out of a multitude of tongues, [rather] than through any kind of authoritative selection”
Schools must, of course, convey basic and advanced skills and information across a range of subject areas and activities, and they must do so for students of different backgrounds and abilities. They must also help students learn to work independently and in groups, and they must accomplish all of this in a safe environment that promotes learning. Given the complexity of these responsibilities, school officials are generally accorded considerable deference in deciding how best to accomplish these goals.
Recent Supreme Court decisions have made clear, the right to free speech and expression can sometimes be subordinated when necessary to achieve legitimate educational goals. (See discussions of Hazelwood School District v. Kuhlmeier and Bethel School District v. Fraser, in Fact Sheet #4.) A school is not comparable to a public park where anyone can stand on a soapbox, or a bulletin board on which anyone can post a notice. While students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” (Tinker v. Des Moines), speech is not quite as free inside educational institutions as outside.
This does not mean that students and teachers have no First Amendment rights at school. Quite the contrary. But it means that within the educational setting, the right to free speech is implemented in ways that do not interfere with the schools’ educational mission. Students cannot claim, for instance, that they have the right to have incorrect answers to an algebra quiz accepted as correct, nor can teachers claim a right to teach anything they choose. The following discussion and Fact Sheets illustrate in far more detail how the First Amendment applies to schools in actual practice.