Tuesday, October 13, 2020
Justin Driver, Yale Law School, is publishing Freedom of Expression within the Schoolhouse Gate in volume 75 of the Arkansas Law Review. Here is the abstract.
This Article examines the history of student speech, with a focus on threats facing those rights that appear on the horizon. First, this story begins with the Supreme Court’s landmark decision in Tinker v. Des Moines Independent Community School District. The Article analyzes the case’s background, emphasizes the majority’s broad conception of citizenship, and illuminates the opinion’s deep doctrinal ambiguity. Turning to the dissent, the Article highlights Justice Black’s narrow conception of citizenship, examines possible motivations for his unusually strident opinion, and demonstrates that Justice Black’s message resonated more with the American people than did the Court’s opinion. By marshaling contemporaneous public opinion data, it becomes clear that Tinker should be understood as an opinion that successfully vindicated constitutional rights in the face of counter-majoritarian opposition. Second, the Article assesses the strength of Tinker today, arguing that scholars have incorrectly dismissed its continuing significance. Admittedly, the Supreme Court has repeatedly rejected students’ speech claims post-Tinker. But those decisions should not be mistaken for indicating that Tinker is now a dead letter. After recovering Tinker’s contemporary vitality, the Article concludes by identifying two major areas that require renewed judicial attention in the fight to protect student speech rights.
Download the article from SSRN at the link.