Maine ACLU: Students and teachers, you have rights!
The American Civil Liberties Union of Maine released a guide on First Amendment rights in K-12 schools Tuesday, bolstering teachers, staff and students against efforts to ban books or curtail speech in schools.
The publication covers a variety of issues in public schools, according to the group, “including teacher and staff free speech, dress codes and gender identity, student protests and walkouts, and tribal regalia at school ceremonies.”
Attempts to restrict school curriculum, curtail speech and ban books have occurred across U.S. school districts in recent years, including Maine. In response to several attempted book restrictions in particular, the ACLU of Maine and GLBTQ Legal Advocates & Defenders (GLAD) sent an open letter in May to all Maine school districts demanding they stop efforts to ban and censor books, as well as four letters to individual districts about book restrictions over the past year or so.
The toolkit“Know Your Rights: Back to School,” builds on guidance the ACLU of Maine published in the aftermath of the 2018 school shooting in Parkland, Florida, which had focused on students’ rights to protest.
The toolkit includes information about protections under both federal and Maine state law. Maine law, through statutes and case law, has defined rights more clearly and added stronger protections.
For example, the gender someone is assigned at birth is confidential information protected by federal privacy law, so schools could be violating federal law if they reveal such information about a student. Maine law provides further protections. A 2014 ruling established the right of transgender students to use restrooms and locker rooms consistent with their gender identity, an area of law that has been changing across states recently.
The ACLU of Maine references a U.S. Supreme Court ruling in the 1969 case Tinker v. Des Moines as the basis of its toolkit. It found that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Retaliation and restrictions depend on when, where and how students decide to speak out.
Students can express political views at school, and schools can’t punish students for missing class to protest any more harshly than for missing class for other unexcused absences. However, schools can regulate the “time, place, and manner” of students exercising these free speech rights.
An example of this is school dress codes. “A school can prohibit you from wearing hats because that rule is not based on what the hats say,” the ACLU toolkit reads, “but the school cannot ban hats that specifically support the NRA.” Dress codes can’t treat students differently based on gender, according to federal and Maine law. A school dress code can require skirts to be a particular length, for example, but it can’t require that girls must wear skirts and prohibit boys or gender non-conforming students from doing so.
Schools can only censor speech in limited circumstances, such as if a student’s speech could cause substantial disruption to school operations or is “too lewd or vulgar” for a school setting. “Even if your speech would provoke strong disagreement or upset some students, school officials cannot censor it,” the toolkit reads.
Overall, schools can’t discriminate against students on the basis of race, color, or national origin. For example, schools cannot deny undocumented children or children with limited English proficiency the right to a public education. They also can’t deny students with disabilities such access, and are required to make the necessary academic and medical accommodations to ensure equal access.
For teachers and staff
The speech of school employees is more limited than students because what they say inside schools is typically considered speech on behalf of the school.
Overall, the toolkit advises teachers and staff “not to discuss with students your personal opinion on certain political matters.” While a teacher can post on a personal Facebook page that they support a specific political candidate, they can sometimes be disciplined for discussing political involvement in the classroom, for example, telling students about participating in an anti-war demonstration.
“It is not as clear, however, whether the First Amendment protects teachers who had not been specifically instructed to refrain from expressing personal political beliefs,” the toolkit reads. “Some courts have ruled that schools may not discipline teachers for sharing certain controversial words or concepts in class that are related to the district’s curriculum.”
Sometimes, speech limitations for teachers and staff can extend beyond school walls.
For example, courts have viewed a teacher posting on Facebook that their students are lazy as within the scope of school censor, specifically because it could create an adverse school environment. The toolkit also provides the hypothetical example of a teacher who publishes a book with “explicit sexual passages.” The teacher published this book outside their capacity as a teacher, but it’s a matter of court discretion whether the school can discipline the teacher.
The First Amendment might not protect school staff if district officials can show that the speech could adversely impact their effectiveness as a teacher or staff member.
Fourteen states specifically protect the right to wear tribal regalia by law. Maine is not one of them.
The ACLU of Maine advises that religious freedom laws can offer another source of legal protection for Indigenous students in public schools, as can the First Amendment. The latter specifically when schools allow cap and gown decorating but prohibit tribal regalia.
School policies that prevent Indigenous students from wearing tribal regalia may also violate a federal law known as Title VI, which prohibits federally-funded schools from discriminating on the basis of race, ethnicity, or national origin. However, only the U.S. Department of Education can enforce Title VI, so students and parents would have to file a complaint with the department.