Understanding Your Child’s Constitutional Rights in Schools

Hi, my name is Brian L. Jackson. I’m a Tulsa fathers’ rights attorney here with Dads.Law where fathers are not disposable. And today I want to talk to you guys about your child’s constitutional rights when they attend a public or private school.

As a starting point, I wanted to talk a little bit about a case that recently made the news involving a 12-year-old middle school student at Vanguard School District within Colorado. This student had been kicked out of class over a patch that was on his backpack depicting the Gadsden flag. And I don’t really want to get into the politics of this situation. That’s been discussed ad nauseum in the news. And I feel like a more interesting discussion would be as to where the law stands on this since I think that got lost in the shuffle a little bit.

The Case Law: Tinker v. Des Moines Independent Public School District

The applicable case law to situations involving a child attempting to exercise the right to free speech in a public school, and they do have a right to free speech in a public school, is a case called Tinker v. Des Moines Independent Public School District. Tinker v. Des Moines, you can find this case on Google Scholar if you’re interested in reading it. I’ll give you a warning in advance. It’s not a light read. But the takeaway from the case essentially is that your child does have a free speech right in a public school. However, the contours of that right are not the same as what you would expect in, like, say, a public street corner or a public park, for example.

Under the holding of Tinker v. Des Moines, the student’s right to free speech is constrained by the school’s right to maintain the security of the school and the order of the school. So if you’re talking about disruptive speech or speech that creates some type of a physical safety hazard or some other security hazard to the school, the school does have the right to limit or prohibit that type of speech.

Now the excuse that the school in the Colorado case was dealing with, the one that made the news, was the Gadsden flag. They were attempting to prohibit the student from wearing a patch depicting the Gadsden’s flag on his backpack. And the rationale they gave was that this flag has racial overtones and is symbolic of slavery. Now one might argue that that evidence is some ignorance of history as to what the origins of the flag were and what it was meant to represent. However, for legal purposes, I think that the key thing to look at here under the Tinker v. Des Moines standard is, was the flag disruptive in class or did it create some sort of security hazard?

Understanding the Gray Area and Seeking Legal Advice

Based on the facts around this case, there’s no evidence of any specific disruption to the school as such. I mean, we’re not talking about, for example, a student that stood up and gave the teacher the finger, for example, which would clearly be speech that the school could prohibit. Nor are we talking about a situation like where it was, say, a patch depicting a swastika. So the Gadsden flag would probably be more analogous to what the Tinker v. Des Moines case was actually dealing with, which was black armbands that were being worn by students in the Des Moines school district to protest the Vietnam War. And it was a silent protest, but the school disliked this and so they basically told the students they couldn’t wear the black armbands. The Gadsden flag seems to be more in line with that type of speech as opposed to something that is overtly disruptive. However, like many things in law, it is a gray area.

The takeaway from this as a parent, if you are in a situation where your child is attending a public school and this type of an issue comes up, generally speaking, if the speech is not disruptive and is not creating a security hazard, like for example inciting speech, that is speech that would immediately cause dangerous or unlawful behavior or that would instigate a legitimate security threat, it’s probably protected. But if you’re really concerned about it, you’re dealing with a situation like this, this is where you would want to get legal advice because it is very particular to the situation. And you’re talking about, obviously, there are potential immediate negative consequences that could affect your student in the school because if there are disciplinary actions taken, well, your remedy would be to sue and you’re talking about federal civil rights litigation that could take years. So as a practical matter, if this ever comes up, you’re probably wise to consult with an Oklahoma family lawyer.

Contact Us for a Low-cost Strategy Session

If you find yourself in a situation where your child’s constitutional rights are being violated in a public or private school, don’t hesitate to reach out to us at Dads.Law. We offer a initial consultation where we can discuss your specific case and provide the legal guidance you need. Contact us today to schedule your appointment. Remember, at Dads.Law, we believe that fathers are not disposable.