Categorizing Student Speech

By Alexander Tsesis. Full text here.

Primary and secondary school student speech cases raise a variety of conflicting concerns about civic growth, intellectual development, school discipline, and judicial discretion. This Article explains how courts should address the internal conflict within jurisprudence that, on the one hand, recognizes students retain their 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, and 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 right to express personal opinions, artistic acumen, or political insights remains constitutionally protected, but the Supreme Court has 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 are granted the greatest discretion when responding to 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.