Proceduralize Student Speech.

AuthorMalin-Mayor, Bo

NOTE CONTENTS INTRODUCTION 1883 1. THE ASSUMPTION OF EFFECTIVENESS IN STUDENT-EXPRESSION JURISPRUDENCE 1889 A. The Dangers of Assuming Effectiveness: Gobitis and Barnette 1891 B. Effectiveness and Disruption: Tinker 1893 C. Effectiveness and Values: Fraser, Kuhlmeier, and Morse 1897 1. Bethel School District No. 403 v. Fraser 1898 2. Hazelwood School District v. Kuhlmeier 1899 3. Morse v. Frederick 1901 II. THE CASE FOR PROCEDU RALIZATION 1903 A. Empirical Research on the Disciplinary Process 1905 1. Challenging the Deterrence Perspective 1905 2. The Legitimacy Perspective 1908 B. Implications for Student-Expression Jurisprudence 1912 1. Protective Discipline: Everyday Disruptive Speech 1913 2. Mixed-Purpose Discipline: Disruptive Core First Amendment Speech 1914 a. The Broader Purpose of School Discipline 1914 b. Implications for Discipline of Disruptive Speech 1917 3. Educational Discipline: Nondisruptive Speech 1919 III. PROCEDURALIZATION IN PRACTICE 1921 A. Effective Speech Discipline in Schools 1922 B. Judicial Responses to Ineffective Speech Discipline: Calibrating Deference 1924 C. The Full-Warning Model 1927 D. Application to Cases 1930 1. Standard Application of the Full-Warning Model: Harper v. Poway Unified School District 1930 2. Full Warning on a Schoolwide Level: Fixing Fraser 1932 3. The Full-Warning Model and Off-Campus Speech 1934 CONCLUSION 1935 INTRODUCTION

In the recent student-expression case Mahanoy Area School District v. B. L. ex rel. Levy, (1) a high-school cheerleader, B.L., sent a Snapchat to her friends reading "Fuck school fuck softball fuck cheer fuck everything." (2) When classmates turned the snap over to school authorities, B.L. was suspended from the cheerleading team for a year. (3) In reviewing B.L.'s case, the Supreme Court agreed to resolve a question that had caused a years long circuit split: when does the First Amendment prevent schools from punishing off-campus student speech? (4) Since Tinker v. Des Moines Independent Community Scliool District, (5) on-campus-speech cases have most commonly turned on the distinction between disruptive (punishable) and nondisruptive (not punishable) speech, (6) with later exceptions also allowing schools to punish or censor speech categorized as "lewd," (7) prodrug, (8) or schoolsponsored. (9) But courts were already struggling to apply these categories to oncampus speech, (10) and attempts to apply them to off-campus speech multiplied the doctrinal challenges. (11)

Rather than doubling down on these categorical brightlines, the Court's opinion in B. L. acknowledged that traditional student-speech categories are too blunt a tool to address a complex and sensitive issue fully. (12) Eight Justices agreed that the First Amendment prevented the school from disciplining B.L.'s speech, but the Court explicitly refused to state a "broad, highly general First Amendment rule" for why this was so. (13) Instead, it invited courts presiding over off-campus-speech cases to balance a number of relevant factors--including the extent to which the school stands in loco parentis, the burden on students' ability to express core First Amendment views, and the school's interest in protecting unpopular student expression. (14) The Court did not eschew the traditional exercise of classifying speech as "disruptive" or "lewd," (15) but it acknowledged that other considerations must supplement these simplistic labels--at least in cases of offcampus speech. (16)

But the bluntness of student-speech categories is not only a problem when speech occurs off campus. The failure to look beyond formalistic categories also lies at the heart of a major, largely unexamined issue with on-campus-speech jurisprudence: the striking fact that it consistently supports bad pedagogy. A focus solely on the content of speech--rather than on other relevant factors about speech restrictions--leads courts to uphold speech discipline that is often actively counterproductive, creating a visible backfire effect in student-speech cases.

For example, in the 1986 case Bethel School District No. 403 v. Fraser, (17) Matthew Fraser's school suspended him for two days and removed him from a list of graduation speakers due to a sexually suggestive speech he made at a school assembly' (8) The Supreme Court upheld this punishment, reasoning that schools must be able to punish lewd speech in order to teach students "the habits and manners of civility." (19) But the students at Bethel High, it seems, did not learn their lesson. Fraser was still elected graduation speaker as a write-in, students protested his punishment with signs reading "Stand Firm, Matt," and the school newspaper voiced strong support for him. (20) Rather than teaching civility, the punishment seems to have turned students against it.

Fraser is far from the only student-expression case in which students failed to learn authorities' intended lesson. In Doninger v. Niehoff, a student who was forbidden from running for student government due to "disruptive" and disparaging comments about administrators received a plurality of votes as a write-in candidate. (21) The student in Hazelwood School District v. Kuhlmeier, (22) whose school-newspaper article was censored in a supposed attempt to teach responsible journalism, stated in 2010 that "she 'wouldn't change a thing' about her actions." (23) Joseph Frederick, who was punished for his "BONG HiTS 4 JESUS" banner in an effort to deter drug use, (24) received a standing ovation when he returned to his high school several years later. (25)

The pattern in these cases is that courts allow schools to punish a certain category of speech in order to teach a certain lesson. Schools then punish that speech, with courts' approval--but students do not learn the lesson. This backfire effect happens frequently, yet courts continue to ask only whether speech fits into a punishable category--not whether punishing it will work. In other words, they assume, contrary to experience, that punishing that category of speech will necessarily teach the intended lesson. Current jurisprudence implicitly assumes that punishing disruption leads to order, punishing lewd speech leads to civility, and punishing prodrug speech leads to antidrug values--even under circumstances where that assumption is highly implausible. (26)

Perhaps judges believe that whether speech discipline will succeed or fail is unpredictable--or at least beyond the judiciary's capability to predict. But that belief would be false. Empirical research on school discipline provides a clear answer to what makes speech restrictions work, and the answer is one that courts are well equipped to handle: fair and respectful process. When students perceive discipline as fair and respectful, they internalize rules as legitimate guides for conduct. (2)' But when students perceive discipline to be ad hoc, discriminatory, or disrespectful, it backfires, teaching students only to turn against authority. (28)

This Note therefore proposes a new dimension for student-speech jurisprudence: procedure. Student-speech jurisprudence abounds with claims that punishing speech teaches students lessons such as civility (29) and positive citizenship. (30) Courts let schools bypass First Amendment protections precisely to teach these lessons. (31) But far too often, those lessons are not learned--meaning that speech suppression is, in fact, not justified. Attending to how schools punish speech would help courts ensure that student-speech restrictions do not merely pay lip service to educational ends, but actually achieve them.

The mismatch between means and ends here is not merely a formalistic issue. Courts often extol education as the "foundation of good citizenship," (32) understanding schooling not as an end in itself, but as part of the development of adults who will contribute to their community and country. (33) While the exact definition of "good citizenship" is up for debate, it certainly excludes fighting, criminal conduct, and alienation from civic life--all of which are more common among students subject to strict but unfair discipline. (34) There is a contradiction, then, when courts inject lofty education goals into their student-speech jurisprudence while ignoring the factor--process--associated most clearly with education and citizenship. Aligning student-speech jurisprudence with education's broader social goals requires attention to the disciplinary process.

By focusing on how schools punish speech, this Note fills a major gap in the literature. While many scholars have attempted to bring coherence to the question of what speech may be punished, (35) few have looked any further. (36) Commentators on the "school" side of the student-speech debate generally suggest that punishment teaches important lessons, even if schools occasionally overreach. (37) The solution, therefore, is to allow more punishments, or at least to maintain the status quo. (38) Commentators on the "student" side worry that schools, if left unchecked, will employ punishment dictatorially, communicating to students that they have no rights. (39) The solution is therefore to allow fewer punishments. (40) But focusing alternatively on procedure reveals a different solution--focusing not on the amount of punishment, but on whether it is, in fact, effective or dictatorial. This approach respects the concerns of both sides of the student-speech debate.

One reason few commentators have moved past the categorical framework may be their reluctance to increase judicial involvement with the specifics of school discipline. (41) On that note, it is important to recognize that every procedural reform suggested below can be implemented by schools without judicial or legislative interference--indeed, that outcome would be preferable. Judicial supervision of speech-discipline procedures should not be the norm, but rather a prod for recalcitrant schools to implement reforms. (42)

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