Back to School: Knowing Your Rights

It was December 1965 and wartime made for unfamiliar territory. Many men and women were celebrating the holidays in the humid jungles of Vietnam, while others were at home experiencing their first Christmas without a loved one. Festivities were dampened and Americans were divided on the United States’ decision to participate in the Vietnam War.?

Including Mary Beth Tinker, a 13-year-old student who, in protest of the war, wore a black armband to school and was suspended. Thanks to this young teen trailblazer, the Supreme Court ruled that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."??

As parents and school goers prepare for the year ahead (and an election on the horizon), we’ve compiled some helpful facts for understanding student rights. Read on to learn more.?

The First Amendment?

Due to Tinker vs. Des Moines, the First Amendment protects students and teachers in public schools and colleges.??

Students have the right to peacefully speak out—including handing out flyers or facilitating petitions—and wear expressive clothing if it isn’t disruptive to the functioning of the school or school policy(1). While “disruptive” may seem like a broad term, there are protections in place to assure that a school can’t instate consequences just because it disagrees with you. However it can, for example, prohibit wearing non-religious headwear based on its dress code policy.?

Please note: These stipulations apply only to public schools; private institutions generally are not bound by the First Amendment, so?private school students don’t have the same rights to freedom of speech as students in public institutions.?

Gender and Religious Expression?

Everyone should feel free to be themselves and express freely—and that’s no different at school.?

Under federal law, students are permitted to wear clothing based on their gender identity and expression, whether they’re transgender or cisgender.(1) Likewise, schools cannot cannot block students from wearing clothing or accessories that reflect their religious beliefs. While schools are allowed to have dress codes, they’re not allowed to treat students differently based on gender or force them to conform to gender roles or constructs. For example, a school can require that skirts be a certain length but can’t prohibit students, regardless of sex or gender, from wearing them.?Public schools can also ban headwear but should make exceptions for religious attire.

Please note: There are still gray areas in the use of restrooms and locker rooms where gender identity is concerned. While several courts have ruled that excluding transgender individuals from using the same restrooms as cisgender individuals violates federal education law, this is still an area that is changing and evolving.??

Understanding Your Rights?

As institutions dedicated to learning, public schools have a responsibility to create a safe environment for all individuals. They cannot discriminate against students based on race, color, religion, sex (including gender identity, sexual orientation, and pregnancy), national origin or disability. Here are just a few examples provided by the American Civil Liberties Union (ACLU):??

• Schools cannot deny undocumented children their right to a free public education, nor can schools turn away students with English proficiency; the school must provide them with language instruction.?

• For people living with disabilities, schools cannot deny them necessary academic and medical accommodations and must provide equal access to academic courses, field trips, and extracurricular activities.?

• LGBTQ+ students have a right to be who they are and express themselves in public schools.?

• Schools must provide pregnant students the same accommodations as students with other temporary medical conditions, including the ability to make up missed classwork, attend doctor’s appointments, take time off for childbirth and recovery, and learn in a safe, nonjudgmental environment.?

And finally, all public schools must respond to harassment and bullying, of any kind, for any reason.?

Express Yourself

In the end, school should be a place where students can feel safe and free to be themselves without fear of punishment or consequence.??

If you or your child experience discrimination at school, a legal plan can offer support. Once you’ve decided to issue a complaint directly with the school or with the Office for Civil Rights, an attorney provided by a legal plan can help strategize a course of action, review your complaint, and represent you and your child in case of escalation.?

Wishing you a wonderful (and safe) school year!?

(1) ACLU, aclu.org , 2024?