Monday, November 23, 2009
Mark W. Cordes, Northern Illinois University College of Law, has published "Making Sense of High School Speech after Morse v. Frederick," at 17 William & Mary Bill of Rights Journal 657 (2009). Here is the abstract.
Second, Fraser and Hazelwood created some confusion over how to analyze student speech rights, and in particular which case - Tinker, Fraser, or Hazelwood - should govern the typical high school speech case. Indeed, a close reading of Morse suggests that viewpoint restrictions on core speech will certainly be subject to the Tinker standard, in which schools can prohibit speech only when it poses a very real threat to substantially interfere with school operations or would infringe on the rights of other students. In doing so, the Court stated that student speech rights must be analyzed in the context of the educational needs of schools, and, in particular, the school officials' need to maintain discipline and order. Roberts then concluded that drug abuse is a serious and real problem facing schools, justifying restrictions on student speech advocating illegal drug use, stating: The "special characteristics of the school environment," and the governmental interest in stopping student drug abuse, allow schools to restrict student expression that they reasonably regard as promoting illegal drug use. In the same way, his concurrence in Morse can be read as affirming student speech rights, but Alito saw the banner displayed by Frederick as a narrow exception, both because of the nature of the speech itself and because of the critical school interest in combating drug abuse. Thus, the type of balancing contemplated in Morse is really reserved for speech restrictions that do not involve either a school-created speech forum nor school-sponsored speech. Of the five decisions, Mergens is the only one that directly involved student speech in high schools, and the only one based on statutory, rather than constitutional, free speech rights. Parks, the Fourth Circuit held a policy unconstitutional that said a school could prohibit distribution only if the principal could "forecast substantial disruption of or material interference with school activities." This quote from Tinker suggests two possible justifications to restrict student speech, even speech that concerns core political or religious messages, or commentary on social issues. Thus, the court rejected the broader principle that any derogatory statements aimed at individuals or groups could be prohibited, stating that t-shirts saying, "Young Republicans Suck," or "Young Democrats Suck" would be protected speech, since such messages would not be "sufficiently damaging to the individual or to the educational process" to justify restrictions.
Download the article at the link. (NB: The abstract is complete as given in SSRN).