Alexander Tsesis (Loyola University Chicago School of Law) has posted Categorizing Student Speech (Minnesota Law Review, Vol. 102, Forthcoming) on SSRN. Here is the abstract:
Primary and secondary school student speech cases raise a variety of conflicting concerns about civic growth, intellectual development, school discipline, and judicial discretion. This is the first article to explain how courts should address the internal conflicts within jurisprudence that on the one hand recognizes students retain First Amendment rights, and on the other defers to school censorship without subjecting it to exacting scrutiny. The precedents are jumbled because courts treat students as civic participants in some cases, but as immature wards in others. Judicial inconsistency has created circuit splits concerning when school authorities can punish inciteful or innocuous statements students made at school, during educational activities, and uploaded on the World Wide Web.
A student’s rights to express personal opinions, artistic acumen, or political insights remain constitutionally protected, but the Court has of late taken a decidedly less speech-protective analytical direction of late, and lower courts have followed its lead. A majority of justices and lower court judges have become increasingly deferential to school administrators’ censorship of offensive content, including raunchy political slogans and challenges to drug policies. In effect, courts now treat student speech as another category of low value speech entitled to lesser scrutiny.
A fine-tuned standard of judicial review is needed to safeguard students’ abilities to openly explore controversial public subjects, to express themselves artistically, and to debate political matters. The standard I suggest follows from Tinker’s acknowledgement that certain types of student speech hold constitutional value. In discussions of ideas, self-assertion, and political speech stated in the playground, near the school, by lockers, and other unstructured activities, courts should use strict scrutiny analysis. In circumstances, where limitations on students are created to advance certain neutral time, place, and manner concerns, the intermediate scrutiny standard is appropriate. Finally, officials should be granted the greatest discretion when dealing with speech that is neither political nor informational, such as obscenity, true threats, and plagiarism. This balanced method of review maintains the intellectual space for students to engage in thoughtful social discourse while conserving educators’ discretion to impose pedagogical discipline.