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How an argument in Colorado over the Gadsden flag highlights students’ free speech rights

A “Back to School Free Speech Guide” for parents

Backpack. Pencils. Paper.

You know the items on every back-to-school list for children.

But what about for parents?

A viral video from Colorado this week in which a school reportedly removed a student from class for wearing a Gadsden flag patch reminds us that parents and students alike have more to navigate beyond writing, reading, and arithmetic. The story reinforces the importance of understanding, exercising, and defending our free speech rights.

With that in mind, open up your Trapper Keeper (remember those?) because here’s your parental checklist to prepare for the new school year.

Stay informed.

You might have thought your days of homework ended once you graduated. But having school-aged kids means homework for parents, too.

So read through the policies for your child’s school and the school district. That can help to either expose or resolve a lot of problems before they become major issues. You may even be asked to sign something saying you’ve read them. We’ve all been there. It’s easy to just check the box. But take the time to find out what is expected of your kids and you, and don’t assume that the school district’s lawyers have a working knowledge of the Constitution.

From there, get to know your kid’s teachers. Odds are good that despite all the recent controversy over issues in education, your kid’s teacher actually wants your kid to learn and thrive – and wants to partner with you to make that happen. At least, that’s our good-faith assumption until proven wrong. There’s also data to back it up. For example, a report by nonpartisan international research organization More in Common found that “a majority of Americans across political affiliations agree on fundamental ideas about our national history and how it should be taught.”

And if you still have questions, speak out. It’s your right. Public school board meetings are public forums, which means that your First Amendment rights apply. Unfortunately, there is no shortage of recent examples of school officials restricting comments or shutting down meetings altogether. This raises free speech concerns because the government can’t condition the use of public property on whether the government approves of what the speakers say.

Parents have the right to:

  • Request and receive information about school policies and decision-making.
  • Attend and speak up at school board meetings.
  • In many circumstances, exempt your child from activities that would violate constitutional rights.

Knowing what is and isn’t permitted on public property will help ensure your First Amendment rights aren’t violated – and neither are anyone else’s.

Earlier this year, the Foundation for Individual Rights and Expression defended a father in the Uvalde school district after school officials banned the father from school property, including school board meetings, for two years – all because he had questioned whether a new police hire was sufficiently qualified. Because this unconstitutional ban violated the father’s First Amendment rights, FIRE threatened to sue – leading the school district to back down and lift the ban.

The father was well within his rights to question the qualifications. But if he had shouted down school board officials, the way that students at Stanford Law School used the “heckler’s veto” to silence an invited speaker, he would have been guilty of interfering with their right to speech.

School your student.

The Supreme Court has been very clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” You can help make sure your child knows about and appreciates their civil liberties – for themselves and others.

Learning about and exercising their First Amendment rights gives students critical skills they’ll need someday to be responsible citizens or productive colleagues in their workplaces. While courts have approved limits on student First Amendment rights, students still enjoy important freedoms in public schools:

  • Free speech: Student speech may generally only be restricted where officials “reasonably fear” that the expression will interfere with the operation of the school or the rights of other students. In the landmark student speech case Tinker v. Des Moines, the Court held that mere “undifferentiated fear” that other students would be upset by students’ black arm bands in opposition to the Vietnam War did not justify censoring the students’ speech.

And student speech extends beyond the schoolhouse gate, too – even online.

When a school punished a high school cheerleader for a profanity-laced Snapchat she posted off campus, the U.S. Supreme Court decided that it violated her First Amendment rights for school officials to punish her for speech that took place off-campus and outside a school function. But this is an area of the law that continues to need more clarity.

  • Free press: While students have the freedom to write and report, the Court has permitted schools to control the content of student newspaper articles when those newspapers are “school-sponsored speech” – for example, part of an official school paper. But this would not permit schools to censor independently-published student journalism.
  • Free association and religious freedom: Both the Equal Access Act and the First Amendment protect students’ freedom to create religious, political, or ideological student groups at public schools. But that fact doesn’t stop schools from trying to remove or punish disfavored groups on campus. Americans for Prosperity Foundation recently filed a brief defending a Fellowship of Christian Athletes group in California, singled out by school officials who did not like their religious views.

Explore options and champion educational freedom.

Remember that your current school option might not necessarily be the one that works best for your children. You can use your voice to advocate for more freedom for students and their families.

Bonnie Wharton is proof of that. She is the mother of identical twin boys and followed the traditional one-size-fits-all approach to education. One child thrived in the school system, the other one didn’t. So, Bonnie had to think outside the box:

Once Bonnie let go of the social pressures and traditional expectations, she found a place, tucked neatly away in a small business office park, in Henderson, NV. A former charter school administrator, Christina Threeton, and her husband, a former charter school teacher, Eric Threeton, gambled it all to start the Nevada School of Inquiry, a place where students like [Bonnie’s son] Owen could be seen. It wasn’t long before Owen had changed.

Learn Bonnie and Owen’s story

Bonnie’s efforts show the value not just in educational freedom but in using your voice to be the catalyst for change. And, just like how every family is unique and every child’s needs are unique, the way you use your voice is unique, too. Using your rights to create real change away from the current top-down standardized model to a bottom-up approach with diverse options enables you to customize an education that best meets your family’s values and needs:

  • Microschools are creating a transformative shift in teaching and learning. Flexible and adaptable, they meet each child where they are in their learning trajectory. Whether you are considering launching a microschool, or already have one up and running, the National Microschooling Center can help you every step of the way. Check out this 50-state guide to microschooling and mix-and-match learning.
  • Imagine a world where public schools are as accessible as other public services. Public Education Your Way policies expand opportunity to every kid by allowing students enrolled in any form of school to attend any public school on a course-by-course basis for instruction, sports, or clubs. Learn more about Public Education Your Way state policies from yes. every kid.

If your child plans to attend college, start preparing now.

I’m still recovering from dropping off my oldest at college. For those still looking toward college decisions to come, now is the time to think about how free speech should factor into those decisions.

If you believe, like I do, that freedom of expression and academic inquiry are necessary to a quality education (and you probably wouldn’t be reading this newsletter if you didn’t), the free speech policies and environment at a university should be a major factor alongside cost, reputation, and all the other metrics that the rankings typically focus on.

Fortunately, FIRE releases its College Free Speech Rankings every September. These rankings are an excellent tool for students and parents to get a comprehensive look at the free speech climate on America’s campuses – including where your child may attend.

This way, you and your child will know what to expect when they arrive on campus. When Emma Camp arrived at the University of Virginia in 2018, she was excited about the opportunity to engage in rigorous debate and learn from different perspectives. However, she was taken aback by the closed environment she encountered:

Instead, my college experience has been defined by strict ideological conformity. Students of all political persuasions hold back — in class discussions, in friendly conversations, on social media — from saying what we really think. … I sometimes feel afraid to fully speak my mind.

FIRE’s rankings are critical for understanding which campuses are fostering a culture of free expression and open inquiry – and which aren’t. Stay tuned for the 2024 College Free Speech Rankings. Follow them on Facebook, Twitter, and Instagram so you don’t miss out!

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Does it feel overwhelming? It can be. The stakes are high. But parents and organizations across the country stand alongside you in support of free speech and educational freedom. The First Amendment is for everyone.

Want to read more about free speech on campus? You’re in luck – previous newsletters covered the following topics:


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