Monday, August 19, 2013

40 Years of Landmark School Speech Cases Symposium

Last fall, the University of Missouri-Kansas City hosted a symposium that included various litigants and attorneys who were actually part of the Supreme Court's landmark student speech cases.  It also included leading student free speech scholars.  The articles from the the symposium are now available on westlaw.  Below are abstracts.

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Allen Rostron, INTELLECTUAL SERIOUSNESS AND THE FIRST AMENDMENT’S PROTECTION OF FREE SPEECH FOR STUDENTS, 81 UMKC L.Rev. 635 (Spring 2013)

 Abstract: “Part I of this essay provides a basic review of the Supreme Court's significant rulings about the free speech rights of students. Part II looks at how the lower courts continue to be divided over difficult questions about the constitutional analysis required by Tinker and the Supreme Court's other key precedents on student speech. In particular, it illustrates the uncertain and disputed character of this area of First Amendment law by examining the varying approaches that lower courts have used in a line of cases about student displays of the Confederate flag. Part III
proposes that courts can make a small step forward by explicitly making intellectual seriousness a legitimate factor for school officials to consider in deciding what student expression to permit or prohibit.”

 Emily Gold Waldman, No Jokes About Dope: Morse v. Frederick’s Educational Rationale, 81 UMKC L.Rev. 685 (Spring 2013)

 Abstract: “This piece begins with a “protective” reading of Morse, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens' dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools-as part of teaching students about the gravity of drug use- should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why Justice Stevens' argument-that Frederick's message was “stupid” and that he was just seeking attention-was wholly unconvincing to the majority, which was disturbed by those very aspects of Frederick's speech. It also helps to explain Justice Alito's concurrence, in which he distinguished between Frederick's speech and any speech that could “plausibly be interpreted as commenting on any political or social issue.” What harmed Frederick was that his speech minimized the seriousness of drug use while lacking the redeeming value of conveying a genuine message. In Justice Alito's eyes, a thoughtful argument for legalizing marijuana would deserve more protection than Frederick's banner, regardless of whether the former might actually have greater potential to persuade at least some students to experiment with it. I conclude with some reflections about why the Court left Morse's educational rationale in the subtext, rather than explicitly articulating it, and what this suggests for how the Supreme Court is approaching student speech cases.”

 Andrew W. Kloster, Speech Codes Slipping Past the Schoolhouse Gate: Current Issues in Student’s Rights, 81 UMKC L.Rev. 617 (Spring 2013)

 Abstract: “The areas outlined in this article are not the only active areas in the struggle for students' rights. Courts and school administrations are still grappling with the effects of disappointing Supreme Court decisions in Christian Legal Society v. Martinez and
Garcetti v. Ceballos. And, of course, even plainly unconstitutional speech policies exist at many
schools, requiring perpetual vigilance on the part of First Amendment advocates. But the areas outlined in this article are particularly unsettled. In Part II, this article will address the question of First Amendment limitations on off-campus, out-of-school speech. Part III examines the approaches to off-campus, out-of-school speech by the courts. In Part IV, this article will explore the ways in which uneven qualified immunity jurisprudence provides a patchwork of legal remedies across the nation. Part V will address some ways in which public schools, particularly at the college level, do an end-run around the First Amendment by outsourcing speech restriction to third parties. These three issues represent the cutting edge of today's students' rights advocacy. The
root of most of the problems is largely a lack of clear guidance by higher courts. American schools are the flowers of democracy; expression there must prosper if we are to have confidence in the legitimacy of our democratic institutions.”

http://lawprofessors.typepad.com/education_law/2013/08/40-years-of-landmark-school-speech-cases-symposium.html

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