Freedom of Speech in a Private Law School Part - 1

While students in law school should be more aware than others of their legal rights as well as limitations, many happy-go-lucky souls fail to distinguish between their rights between public and private institutional settings.

The First Amendment does have the lure of being a catch-all, or a foolproof shield, behind which ‘almost’ anything may be allowed, but few realize that the protective powers of the First Amendment are severely limited within the precincts of private institutions.


In fact, your First Amendment rights are designed to protect you only from government censorship and not from private censorship.

So, if you are studying in a private law school, be very sure of your school policies regarding limits of expression applicable to students. As found in Ubriaco v. Albertus Magnus High School, No. 99 Civ. 11135 (JSM) (S.D.N.Y. July 21, 2000), a student could be expelled under school policy for content posted on a personal website, without any prejudice to the First Amendment.

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So, if you are intent on airing your views on your private law school, its staff, or anything at all bearing upon your institution, you need to check any written policies in place regarding freedom of speech allowed by the school. This does not mean that private institutions restrict freedom of speech to an extent which is narrower than that allowed by the First Amendment. In fact, many states in the U.S. have passed legislation that allows speech protections beyond the First Amendment to private high school and college students.

In the context of students and educational institutions Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) is held to be seminal. The material standards of conduct laid down in the case are still considered to be of first importance when it comes to the free speech rights of students. In that judgment, it was held that a student’s free-speech rights do not extend to any activity, which “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.”

The standards set down in the ‘Tinker’ case have come to be known as the Tinker test and usually applied by courts to find whether an action by a student was within or without the protection of the First Amendment. The test was applied in Bethel School District No. 403 v. Fraser, 478 U.S. 675 (1986) to uphold the suspension of a high-school student for “including the use of obscene, profane language or gestures” during a students’ election nomination speech.

However, the Tinker case is also famous for recognizing that students have rights to on-campus free speech irrespective of whether they were minors or adults or whether they studied in a high school or college. The case, where the court held that public high school students had a First Amendment right to wear black armbands to class in symbolic protest of the Vietnam war mentioned, “Students in school as well as out of school are ‘persons’ under our Constitution … they are possessed of fundamental rights which the State must respect …”

We would be continuing this series on freedom of speech applicable to students in law schools and concerned limitations.