The Seventh Circuit Court of Appeals (Court), which has jurisdiction in Wisconsin, issued a decision in August 2025 related to student First Amendment speech rights. This article first reviews that decision and then provides reminders related to the varying tests applicable to student speech cases.
In E.D. by Duell v. Noblesville Sch. Dist., 151 F.4th 907 (7th Cir. 2025), school administration approved a pro-life student club started by E.D., a Noblesville High School student. In accordance with the student handbook, administration would approve (and sign) flyers for student-led clubs only if they contained a club’s name and the time, date, and location of a meeting, and refrained from including political or disruptive content.
Nonetheless, E.D. sought approval for flyers that contained the message, “Pro-Life Students, It’s Time to Meet Up!” with images of young people holding “Defund Planned Parenthood” signs. Multiple administrators rejected the flyers.
The assistant principal first advised E.D. that she needed to adhere to the school’s expectations for such flyers. Separately, the faculty sponsor (i.e., the individual who supervised the club’s use of facilities and provided logistical support) reiterated the same. Despite that, E.D. and her mother subsequently met with the dean of students and presented the original flyers. The dean of students voiced the same rejection.
The dean then spoke to the principal and assistant principal and learned that the flyers had already been rejected. The dean voiced concerns that E.D.’s mother led the club and the push for the flyers.
The principal suspended the club, based upon (1) E.D. and her mother’s “attempted end-run around the problems with [the] flyers” and (2) the deviation from expectations that student clubs are student run. The principal, however, told E.D. that she could reapply for club approval the following semester.
E.D. sued, alleging that the administration rejected the flyers and issued a suspension based upon hostility to E.D.’s pro-life views, thereby violating her First Amendment and Equal Access rights (the latter of which will not be addressed in this article). The District Court for the Southern District of Indiana found in favor of Noblesville.
On appeal, the Seventh Circuit considered the following arguments raised by E.D. in relation to her First Amendment claim: Noblesville violated E.D.’s free speech rights by (1) rejecting the pictures in the flyers and (2) suspending the pro-life club.
The Seventh Circuit began its review by considering whether the decision in Tinker v. Des Moines Independent Comm’y Sch. Dist., 393 U.S. 503 (1969) or Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988) applied. As a reminder, in Tinker, administrators suspended students who wore armbands in protest of the Vietnam War. The U.S. Supreme Court (Supreme Court) held that while students do not “shed their constitutional rights… at the schoolhouse gate,” schools retain some authority to regulate student speech. Nonetheless, the Supreme Court found that the suspensions violated the students’ First Amendment rights because the armbands did not “materially and substantially disrupt” the school environment.
In Kuhlmeier, administrators refused to publish articles in a school newspaper written by students during a high school journalism class about divorce and teen pregnancy. The Supreme Court held that administrators could “exercis[e] editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions [were] reasonably related to legitimate pedagogical concerns.” The Supreme Court also said that administrators had great authority to withhold approval because the school newspaper would likely be seen as school-sponsored speech bearing “the imprimatur of the school.” The Supreme Court distinguished such sponsorship from Tinker where administrators were not asked to affirmatively promote the speech at hand; rather, in Tinker, administrators were only asked to tolerate such speech.
The Seventh Circuit found E.D.’s case more closely aligned with Kuhlmeier because the flyers, which would be displayed on school walls next to school-sponsored flyers, “could reasonably be perceived as bearing the school’s imprimatur,” particularly when signed by an administrator. The Court went on to find that Noblesville’s decision restricting the flyers related to “legitimate pedagogical concerns.”
In reaching that conclusion, the Court reasoned that Noblesville designated its walls as limited public forums for student-led clubs. In such forums, speech restrictions must be reasonable, considering the purpose served by the forum, and viewpoint neutral (i.e., not discriminatory of any specific viewpoint). The Court held that Noblesville created its flyer policy to allow only limited content related to student-led clubs (i.e., basic meeting information), applied the policy evenhandedly to all clubs, and made its decision based on its duty to create a stable and neutral educational environment. The Court also observed that despite prohibiting the flyers, Noblesville did not prohibit E.D. from expressing her pro-life views in other manners (e.g., administrators allowed her to wear a pro-life t-shirt and share her message with others at an activities fair). Thus, the Court found in favor of Noblesville related to administrators’ restriction on E.D.’s flyers.
With respect to E.D.’s arguments relating to the suspension of the club, the Court also sided with Noblesville. Again, the Court reasoned that Noblesville designated student-led clubs as limited public forums, which were opened for “[t]he purpose [of] facilitat[ing] extracurricular activities that [were supposed to be] entirely student-led and student-run.” Noblesville suspended the club because the principal determined that the club was not entirely student run; more specifically, E.D.’s mother appeared to be leading the club’s efforts in relation to the flyers. In siding with Noblesville, the Court also recognized that Noblesville did not permanently disallow E.D. from reapplying for club approval.
Based on the foregoing, the Court affirmed the decision of the lower court and held in favor of Noblesville.
In addition to the Tinker and Kuhlmeier tests articulated above, there are two (2) other cases that are relevant to student speech occurring at school. In Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675 (1986), a student gave a sexually suggestive speech at a school assembly supporting a classmate for student government. The Supreme Court deemed the speech “lewd,” “vulgar,” “indecent,” and “plainly offensive” to students (who grew embarrassed during the speech) and teachers (who previously advised the student against the speech). The Supreme Court held the student was entitled to less protection for such speech and the school was entitled to disassociate from speech inconsistent with its views by imposing discipline.
In Morse v. Frederick, 551 U.S. 393 (2007), students held a banner reading, “BONG HiTS 4 JESUS” during the Olympic Torch Relay, which the school permitted students to attend during the school day as the Relay passed by the school. When a student refused to fold up the banner, administration suspended the student. The Supreme Court said that the banner was reasonably susceptible to being interpreted as promoting illegal drug use and the school had an interest in deterring such use.
In summary, schools must balance their interests in regulating the school environment against students’ first amendment rights, but they typically are able to regulate student on-campus speech when it materially and substantially disrupts the school environment; bears the imprimatur of the school; is lewd, vulgar, indecent, or plainly offensive; and/or promotes illegal drug use. It is important to distinguish these situations from those in which students speak outside of school, such as on social media. The Supreme Court has held that a school’s regulatory interests are lessened when a student is speaking outside of school or while not under the supervision of a school authority. See Mahanoy Area Sch. Dist. v. B.L., 594 U.S. 180 (2021). For more information on regulation of student speech occurring away from school, please refer to Attorney Geoffrey Lacy’s Article on the Mahanoy case.
Because student speech cases are fact-specific and require case-by-case analysis, schools are encouraged to reach out to contact their RLL attorney when addressing these issues.
