Rights of Student Protesters

From the Anti-Vietnam War Movement of the 1960s to pro-Palestinian demonstrations in the 2020s, student protest has long been a feature of American political culture. In the United States, you don’t lose your constitutional rights at the schoolhouse doors. First Amendment protections of speech and assembly extend to student protesters at public schools and universities.

However, these rights are not unlimited. A legal balance must be struck between student expression and a school’s interest in maintaining safety and its educational mission. Read on to learn more about protections, limitations, and the steps you can take to ensure you conduct protests lawfully. For legal advice about your free speech protections as a student protester, speak with a civil rights attorney.

Student Rights in Public Schools vs. Private Institutions

The First Amendment protects freedoms of speech and assembly from governmental restriction. Public colleges and universities are government entities operated or funded by the state. As such, the First Amendment directly applies to students at public colleges and universities.

By contrast, students who attend private colleges or universities are generally not entitled to First Amendment protections. However, many private institutions adopt policies mirroring the First Amendment. Students at these institutions have free speech rights based on the school’s policies or student handbook.

Limits on Student Protest Rights: The Public Forum Doctrine

The right to protest is not absolute. For example, the First Amendment does not protect illegal conduct such as violence, vandalism, or trespassing, and you can face criminal charges or disciplinary proceedings if you engage in such activity during a protest.

Additionally, the government may impose reasonable restrictions on when, where, and how a protest takes place. The U.S. Supreme Court has developed a framework known as the public forum doctrine for determining how much the government can regulate speech in certain areas. The public forum doctrine sets up three tiers:

1. Traditional Public Forums. Traditional public forums are areas like public streets, sidewalks or parks that are open to the public for demonstration and protest. The government’s power to limit speech in these areas is highly restricted.
2. Limited Public Forums. A limited public forum is a space that the government has designated for use by particular groups or the discussion of certain topics. An example on college campuses would be meeting rooms, which the college may restrict to staff for school-related meetings. While the government can limit these spaces to particular groups or topics, it cannot restrict the speech of people who fall within those groups based on viewpoint.
3. Non-Public Forums. A non-public forum is government-owned property that is not traditionally designated as open to public expression and assembly.

Public college campuses have areas that fall under different public forum categories. For example, while student protests are broadly protected in open outdoor areas of campus, they might be restricted in meeting rooms during university operating hours. When organizing or participating in a campus protest, it’s important to know which areas you can protest in, and the restrictions that your school can place on protests in those areas.

Limits on Student Protest Rights: Time, Place, and Manner Restrictions

The government can impose restrictions even in a traditional public forum on when, where, and how people protest. For time, place, and manner regulations to be constitutional, they must be:

1. Content-neutral and not discriminate against a particular viewpoint;
2. Narrowly tailored to serve a significant government interest; and
3. Leave open ample alternative channels for communication of the information.

The reasonableness of a time, place, and manner restriction depends on each case’s facts and context. For example, if law enforcement officers reroute a campus protest that is interfering with traffic, or restrict the use of amplified sound so that the noise doesn’t interrupt classes, those are likely neutral restrictions that serve a significant government interest.

Time, Place, and Manner Regulations Can Be Excessive

Universities can go too far when imposing restrictions on time, place, and manner. While universities can often demonstrate legitimate security concerns to justify restricting protests, they must be content-neutral and reasonable under the particular circumstances.

Restrictions a court would likely consider excessive include:

• Requiring pre-approval for all expressive activity
• Banning all expressive use of tents
• Limiting protests to a few small areas or remote parts of campus

Potential Consequences for Student Protesters

Schools have a legitimate interest in limiting freedom of expression in certain instances. When student protesters engage in disruptive or illegal activities, they may face consequences, including suspension, expulsion, loss of financial support, or criminal charges.

When you engage in civil disobedience — non-violent unlawful conduct undertaken as a form of peaceful protest — you are still breaking the law or the rules of your campus. School-related civil disobedience may include:

• Occupying public property outside of school hours against school rules
• Engaging in a walkout during school hours and missing class

Know that you can incur penalties, but also be mindful of unevenly enforced rules that seem neutral at face value. School officials shouldn’t punish your student group more harshly than other groups under similar circumstances because they find your message offensive.

Key Court Cases Impacting Student Protest Rights

Several landmark U.S. Supreme Court cases have impacted student speech and protest rights throughout the years.

Tinker v. Des Moines (1969)

The U.S. Supreme Court ruled that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” In Tinker, the Court ruled that a school district violated students’ First Amendment rights when it prohibited them from wearing black arm bands in protest of the Vietnam War. The Justices reasoned that even if expressive acts are unpopular or controversial, they are protected as long as they are not a substantial disruption to the work and discipline of the school.

Hazelwood v. Kuhlmeier (1988)

The U.S. Supreme Court held that student journalists’ First Amendment rights are not violated when officials prevent the publication of articles in the student newspaper. In Hazelwood, the student journalists had written stories about teen pregnancy and divorce in the school newspaper. The school principal removed the articles from publication without informing the students. The Court found that because the school sponsored the newspaper, it had a legitimate interest in preventing the publication of articles it deemed inappropriate. The Court noted that the paper was not a public forum where everyone could share views; it was a limited forum for journalism students to write articles.

Morse v. Frederick (2007)

The U.S. Supreme Court found that the First Amendment does not prohibit school officials from restricting student expression that could be reasonably interpreted as promoting illegal drug use. In Morse, a student participating in a school-supervised activity held a banner saying “Bong Hits 4 Jesus.” The Court held that the state had a compelling interest in prohibiting such student speech and stated that schools may “take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” without violating a student’s First Amendment rights.

Tips for Students to Protest Safety and Legally

If you do choose to plan or participate in a protest on school grounds, consider the following tips:

• Get training from an organization that offers training for peaceful protests
• Be aware of the rules and laws governing the place where you plan to protest
• Educate participants on what to expect
• Maintain the position of non-violence
• Comply with any requests from police officers

Most importantly, know your rights and when to get legal help.

Get Help From a Civil Rights Lawyer

It’s critical to know your rights as a student protester. If you have questions about your rights as a student protester, get legal advice from a civil rights attorney in your area with experience in First Amendment defense and advocacy.