Students have a constitutional right to discuss political and social issues from all perspectives. But students do not have a constitutional right to substantially disrupt the educational environment, express themselves in a lewd or profane manner or inflict verbal abuse. As one federal appeals court explained, “[i]ntimidation of one student by another, including intimidation by name calling, is the kind of behavior school authorities are expected to control or prevent. There is no constitutional right to be a bully.”
Distinguishing between offensive but constitutionally protected speech and verbal harassment, which is unprotected, may occasionally present a challenge. Courts have not settled on a single approach to borderline cases, and resolution often requires analyzing all facts. But there are ways to create a supportive school environment without infringing on any student’s First Amendment rights.
The First Amendment may in some circumstances protect a student’s right to voice, at school, his or her objection to homosexuality or LGBTQ rights. But nothing requires school officials to agree. So if officials are concerned that a student’s expression in opposition to LGBTQ equality could foster an intolerant environment or upset other students, school officials may take the opportunity to remind the student body that, while the school respects freedom of speech on these issues, the school itself remains committed to the full inclusion of, and respect for, all students, including LGBTQ students.
School officials might express this affirming message by, for example, making an announcement, or implementing or redistributing copies of an anti-harassment policy. Schools can also make additional LGBTQ-supportive resources available to students, or encourage students who are upset to speak with a counselor.
Of course, school officials should not punish or otherwise discipline a student based on his or her constitutionally protected speech; nor should they permit LGBTQ-supportive students (or staff members) to harass the student with anti-LGBTQ ideas. But provided school officials prohibit such misconduct, they are entitled (and in some circumstances, required) to convey the school’s institutional support for LGBTQ students and their allies.
