Students’ Right of Personal Expression in Public School

, , , , and | May 11, 2022 | Children and the Law

Restatement of the Law, Children and the Law, Tentative Draft No. 4 (TD No. 4) will be presented to ALI membership at the 2022 Annual Meeting. The below black letter is excerpted from this draft, which contains § 8.10. Students’ Right of Personal Expression in Public School. 

§ 8.10. Students’ Right of Personal Expression in Public School

            A child has a right of free expression in public school, but the special characteristics of the school environment justify speech regulations that would not be permitted outside this environment.

(a) Public school students cannot be prevented from or disciplined for expressing their own ideas in school unless the expression:

(1) causes or is likely to cause a material and substantial disruption in the operation of the school;

(2) interferes with the legal rights of others;

(3) promotes illegal conduct that threatens to undermine a school’s educational mission; or

(4) sharply departs, in its form or manner of expression, from the school’s norms of civility. In such circumstances, only the form or manner of expression, and not the viewpoint expressed, can be regulated.

          (b) Expression made in the course of curricular schoolwork that does not satisfy any exception under subsection (a) can be academically evaluated on the basis of whether it conforms to curricular requirements but cannot subject the student speaker to discipline.

          (c) School personnel can exercise editorial control over the style and content of student speech that is part of expressive activities that could reasonably be perceived to have been endorsed or approved by the school, so long as the school’s actions are reasonably related to legitimate pedagogical concerns.

This Tentative Draft has not yet been considered or approved by ALI membership. Therefore, it does not represent the position of The American Law Institute and should not be represented as such.

To request copies of Tentative Drafts approved by ALI membership at past Annual Meetings, please email communications@ali.org.

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Elizabeth S. Scott

Reporter, Children and the Law

Elizabeth S. Scott is the Harold R. Medina Professor of Law at Columbia Law School. Scott teaches family law, property, criminal law, and children and the law. She has written extensively on marriage, divorce, cohabitation, child custody, adolescent decision-making, and juvenile delinquency. Her research is interdisciplinary, applying behavioral economics, social science research, and developmental theory to family/juvenile law and policy issues.

Richard Bonnie

Associate Reporter, Children and the Law

Richard J. Bonnie is Harrison Foundation Professor of Medicine and Law Emeritus at the University of Virginia School of Law, having retired from teaching in 2023. He formerly served as director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. ­­He teaches and writes about health law and policy, bioethics, criminal law, and public policies relating to mental health, substance abuse, and public health. He has co-authored leading textbooks on criminal law and public health law.

Emily Buss

Associate Reporter, Children and the Law

Emily Buss's research interests include children's and parents' rights and the legal system's allocation of responsibility for children’s development among parent, child, and state. In recent years, she has focused particular attention on the developmental impact of court proceedings on court-involved children, including foster youth and youth accused of crimes. In addition to courses focused on the subjects of her research, Buss teaches civil procedure, evidence, and family law. 

Clare Huntington

Associate Reporter, Children and the Law

Clare Huntington is an expert in the fields of family law and poverty law. Her book, Failure to Flourish: How Law Undermines Family Relationships (Oxford 2014), won an Honorable Mention for the Professional and Scholarly Excellence (PROSE) Award in Law and Legal Studies from the Association of American Publishers. She has published widely in leading law journals, exploring the intersection of poverty and families and with a recent focus on non-marital families.

Solangel Maldonado

Associate Reporter, Children and the Law

Solangel Maldonado is the Joseph M. Lynch Professor of Law at Seton Hall Law.  Her research and teaching interests include family law, feminist legal theory, race and the law, and international and comparative family law. Over the past decade, her scholarship has focused on the intersection of race and family law and the law’s influence on social norms of post-separation parenthood. She is currently working on a book for NYU Press that examines how the law shapes romantic preferences and how these preferences perpetuate racial hierarchy and economic and social inequality.

Jennifer Morinigo

The American Law Institute

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