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 email@example.com.