INTRODUCTION I. INCONSISTENT APPROACHES TO HARMFUL SPEECH IN SCHOOLS A. The Institutional Rights View B. The Expanded Institutional Rights View C. The Private Rights View II. PROTECTIONISM IN AND OUT OF SCHOOL A. Protecting Minors from Harmful Speech B. Protecting Students from Other Students' Expression III. A PROTECTIONIST APPROACH TO HARMFUL SPEECH IN SCHOOLS A. Justifications for Protectionism Under Tinker B. Harmful Speech and Tinker's "Rights of Others" Prong IV. THE LIMITS OF PROTECTIONISM A. When Do Harmful Viewpoints Invade the Rights of Others? 1. Speech in a Hostile Environment 2. Reasonable Forecast of Harm 3. Verbal Bullying B. When Do Harmful Viewpoints Not Invade the Rights of Others? 1. Political Commentary in a Non-Hostile Environment 2. Voluntary Civil Discussions Among Mature Students CONCLUSION INTRODUCTION
Over four decades ago, Tinker v. Des Moines Independent Community School District announced that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (1) Ever since, courts have struggled to define the limits of those rights, especially when the speech of one student harms another. (2) Subsequent cases carved out doctrinal alternatives and exceptions to Tinker and thereby gave schools more discretion to restrict harmful speech. (3) But these decisions provided little guidance on how much, if at all, Tinker allows schools to restrict student speech in order to protect the physical and psychological well-being of other students. When harmful student speech is not vulgar and offensive, does not bear the imprimatur of the school, and does not advocate illegal drug use, how much can schools limit it?
In recent years, this question has been particularly central to schools' attempts to restrict controversial student speech on race and sexuality. on the one hand, it is clear enough that schools can protect students from verbal bullying or targeted hate speech. (4) On the other hand, it is far less clear--and far more controversial--whether Tinker permits schools to protect students from harmful political, social, or religious speech. Accordingly, lower courts have reached wildly conflicting conclusions about the permissibility of restricting such student viewpoints. (5) Schools can ban religiously intolerant armbands, (6) for example, but not necessarily Confederate-flag clothing. (7) Pro-homosexual slogans (8) or pro-heterosexual student speech (9) are protected, but anti-gay speech is not, (10) unless it is simply too mild to be harmful. (11) "Homosexuality is a sin" (12) is permissible student speech, but "Homosexuality is shameful" goes too far. (13)
Lower court disagreement has resulted from looking exclusively to Tinker and its progeny for guidance on restricting harmful viewpoints in schools. Tinker originally devised a two-prong test under which schools can restrict student speech only if it "materially and substantially interfer[es] with the requirements of appropriate discipline in the operation of the school" or "collid[es] with the rights of others." (14) But applying this framework to harmful student speech runs into immediate problems. Is such speech a substantial disruption or an invasion of others' rights? (15) How much speech is needed to trigger either Tinker prong? (16) Does the speech have to be individually targeted, or are broad political statements also proscribable? (17) If a court protects student speakers too much, it risks emotional harm to the student audience exposed to the speech; if the school protects the student audience too much, it risks impermissible viewpoint discrimination against the student speakers. Caught between this Scylla and Charybdis, courts have placed different limits on a school's ability to shield students from emotionally harmful speech by other students.
Adopting the same methodology, scholars have only replicated these basic disagreements. They, too, find that schools can prohibit verbal bullying or targeted hate speech. (18) But like lower courts, scholars primarily have mined the Tinker line of cases, alone, to glean how Tinker should apply to harmful political, social, or religious commentary. While some thus have analyzed such speech under Tinker's "material disruption" prong, (19) others have advocated applying the "rights of others" prong; (20) scholars have disagreed over the scope of each prong, too. (21) Occasionally other doctrine has been used, but only to establish that a school can restrict harmful speech, not to consider the boundaries of that authority. (22)
What both scholars and lower courts have missed is that the Supreme Court actually situated Tinker and its progeny within a broader jurisprudence on protecting minors from all kinds of harmful speech. (23) That jurisprudence also balanced content or viewpoint discrimination, on the one hand, with a state's compelling interest in protecting the physical and psychological well-being of minors, on the other. (24) In turn, Tinker and its progeny cited to protectionist cases and applied those rationales to restricting speech in schools. (25) Examining how student speech cases modified this protectionist jurisprudence thus clarifies the limits on a school's ability to protect students from harmful student viewpoints.
Accordingly, this Note takes a fresh look at the problem of harmful student speech through the lens of protectionist jurisprudence. Part I shows how recent decisions have disagreed over whether and how much schools can protect students from harmful speech. These decisions, in turn, have left unresolved a number of key questions about protectionism and viewpoint discrimination in schools. Part II then examines how Tinker used protectionist principles to answer similar questions. I trace how, under Tinker and its progeny, the state's protective authority only expands in the special context of schools: even viewpoint restrictions on speech are permissible in order to protect students from potentially harmful speech.
Parts III and IV then use insights from protectionist jurisprudence to answer the questions left open in Part I. Part III maintains that a school's basic educational mission and the state's compelling interest in protecting minors justify some restrictions on harmful speech in schools. To the extent that such speech invades a student's right to be let alone, it falls under Tinker's "rights of others prong." Still, Part IV shows, there are limits on a school's ability to restrict harmful speech. Schools should not be able to ban racist or homophobic viewpoints automatically, for not all such speech is harmful. Nor should high schools, at least, be allowed to prevent students from voluntarily exposing themselves to those viewpoints in civil discussion. The Conclusion considers how far this rule extends to other types of speech.
INCONSISTENT APPROACHES TO HARMFUL SPEECH IN SCHOOLS
Recent lower court decisions have adopted an implicit student welfare standard--what I term protectionism--in student speech cases. (26) But in applying a protectionist standard, lower courts have looked exclusively to Tinker's unclear framework. Accordingly, these decisions have disagreed over how far schools can go to protect students from harmful student speech. Three main views have emerged: I call these, respectively, the institutional rights, expanded institutional rights, and private rights approaches. As will be clear, each applies a different amount of protection for student audiences under one of Tinker's two prongs. The approaches consequently clash over what evidence counts for a reasonable forecast of "substantial and material disruption," for example, or what types of harms collide with the "rights of others."
The Institutional Rights View
The least restrictive and least protective approach is the institutional rights view, which frames harmful student speech as a threat only to a school's institutional rights to maintain order and good discipline. Any emotional harm caused is immaterial unless it results in emotional outbursts or provokes a violent reaction--that is, unless it creates material disorder infringing on a school's institutional rights. In short, this view treats emotionally harmful speech like any other kind of student speech under Tinker's "substantial disruption" prong.
Courts have typically adopted the institutional rights approach where a protectionist justification would be redundant. Confederate flag clothing cases, for example, almost always involve material disruptions--prior incidents of racial violence, threats, or tensions--that have justified the restriction on student speech. (27) Likewise, when a school had prohibited students from wearing T-shirts bearing the American flag during its Cinco de Mayo celebration, the Ninth Circuit noted threats of race-related violence in upholding the restriction of speech. (28) Eschewing protectionism in these cases is therefore uncontroversial, for the restriction on speech already passes Tinker's "substantial disruption" prong.
The institutional rights approach has been more controversial in cases involving student speech on sexuality, where there has not already been a material disruption or reasonable threat thereof. There, courts have used the institutional rights approach to shield student speakers--whether expressing pro-gay (29) or anti-gay (30) viewpoints. In Nixon v. Northern Local School District Board of Education, for example, a high school student won a preliminary and permanent injunction to wear a T-shirt that read in part "Homosexuality is a sin! Islam is a lie! Abortion is murder! Some issues are just black and white!" because there had been no actual disruption, and there was "no evidence of any history of violence or disorder in the school." (31) The Nixon court also found no evidence that the student's "silent, passive expression of opinion" had invaded other students' rights. (32)