Sean R. Nuttall (New York University – School of Law) has posted Rethinking the Academic Narrative on Judicial Deference in Student Speech Cases (New York University Law Review, Vol. 83, No. 4, 2008) on SSRN. Here is the abstract:
This Note argues that scholars have misconstrued the Supreme Court’s jurisprudence on student speech in public schools. Most scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student-speech protection, and the Court’s two subsequent decisions, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, as a considerable retreat from this mark. In the same vein, the nascent scholarly literature on Morse v. Frederick (the "Bong Hits" case) has viewed the decision as the latest step in the Court’s retreat. In particular, scholars have criticised Bong Hits’ requirement that courts defer to educators’ reasonable determinations of what speech constitutes advocacy of illegal drug use. Many scholars have argued that this deference is a departure from the heightened judicial scrutiny that the Tinker "substantial disruption" test ostensibly requires.
By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires that courts defer to educators’ reasonable determinations of what speech may cause a substantial disruption and actually provides only very modest protection for student speech. By the same token, comparing the Tinker standard to that of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. The analysis of the three standards is supported by a comprehensive review of lower court decisions from 1969-2007 applying Tinker, Fraser, and Kuhlmeier.
As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. This Note also attempts to provide this explanation, focusing on a fundamental difference between the types of tests articulated in the two decisions and analogising to First Amendment jurisprudence outside the schoolhouse gates.