Rehabilitating Tinker: A Modest Proposal To Protect Public-School Students' First Amendment Free Expression Rights in the Digital Age

Author:Aaron J. Hersh
Position:J.D. Candidate, The University of Iowa College of Law, 2013
Pages:1309-1349
SUMMARY

The First Amendment provides certain free expression protections for public-school students, though the Supreme Court precedent on the issue is limited to four cases. None of these opinions enunciate the breadth of students’ free expression rights for online, off-campus expression. As a result of this shortcoming, multiple circuit courts have reached conflicting conclusions when called on to... (see full summary)

 
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1309
Rehabilitating Tinker : A Modest Proposal
To Protect Public-School Students’ First
Amendment Free Expression Rights in the
Digital Age
Aaron J. Hersh
ABSTRACT: The First Amendment provides certain free expressi on
protections for public-school students, though the Supreme Court precedent
on the issue is limited to four cases. None of these opinions enunciate the
breadth of students’ free expression rights for online, off-campus expression.
As a result of this shortcoming, multiple circuit courts have reached
conflicting conclusions when called on to determine whether schools have
violated students’ rights when school administrators punish students for
online expression. This inconsistency contributes to confusion—among
students, school administrators, and the public at large—th at threatens to
undermine students’ First Amendment rights. In order to ameliorate this
problem, this Note proposes a modified approach that reinvigorates the
Tinker v. Des Moines Independent Community School District
standard. This standard would allow school administrators to regulate off-
campus, online student expression only when it infringes on the rights of
other students or otherwise would seriously disrupt the operation of the
school in ways that Tinker countenanced.
I. INTRODUCTION .................................................................................... 1311
II. STUDENTS FIRST AMENDMENT FREE EXPRESSION RIGHTS AND THE
FEDERAL COURTS ................................................................................. 1314
A. PUBLIC-POLICY CONCERNS: THE CHALLENGES FACING SCHOOLS
AND STUDENTS FREE EXPRESSION INTERESTS .................................. 1315
B. AN EXERCISE IN AMBIGUITY: THE SUPREME COURTS STUDENT-
EXPRESSION PRECEDENT ................................................................. 1318
J.D. Candidate, The University of Iowa College of Law, 2013; B.A., Lewis & Clark
College, 2008. I would like to thank the members of the Iowa Law Review for their efforts to
improve this Note, Professor Todd Lochner for his inspiration, and my family for its continued
support.
1310 IOWA LAW REVIEW [Vol. 98:1309
1. The High Point of Student-Expression Protection:
Tinker v. Des Moines Independent Community School District .. 1319
2. The Degradation of Tinker ................................................... 1321
a. Bethel School District No. 403 v. Fraser: Vulgarity
and Lewdness as Exceptions to Protected Student
Expression ........................................................................ 1321
b. Morse v. Frederick: Advocacy of Illegal Drug Use as a
Further Exception .............................................................. 1323
C. THE CIRCUIT COURTS ADDRESS STUDENTS ONLINE EXPRESSION ...... 1326
1. Doninger v. Niehoff : The Second Circuit’s Misguided
Application of Tinker and Fraser .......................................... 1327
2. Kowalski v. Berkeley County Schools : The Fourth Circuit’s
Application of Tinker to Cyberbullying and the
Lingering Presence of Fraser ................................................ 1331
3. Layshock ex rel. Layshock v. Hermitage School District and J.S.
ex rel. Snyder v. Blue Mountain School District : The Third
Circuit’s Mostly Correct Application of Tinker ................... 1334
III. AMBIGUITYS DUAL DIFFICULTY: CHILLING EXPRESSION AND
ELIMINATING GUIDANCE TO SCHOOL OFFICIALS ................................ 1338
A. THE CHILLING EFFECT ................................................................... 1338
B. THE LACK OF GUIDANCE TO SCHOOL OFFICIALS ............................... 1340
IV. A NEW WAY FORWARD: ACHIEVING HARMONY BETWEEN STUDENT
EXPRESSION AND EFFECTIVE PUBLIC-SCHOOL ADMINISTRATION ........ 1341
A. LIMITING FRASER .......................................................................... 1341
B. REHABILITATING TINKER ............................................................... 1342
1. Expression Meant To Bully and Harass Students .............. 1345
2. Expression Meant To Protest School Policy ....................... 1346
3. Expression Meant To Mock School Officials ..................... 1347
V. CONCLUSION ....................................................................................... 1349
2013] REHABILITATING TINKER 1311
I. INTRODUCTION
While the First Amendment provides that “Congress shall make no
law . . . abridging the freedom of speech,”1 this prohibition is not absolute.
The Supreme Court has held that the First Amendment offers only limited
protections to students’ expression within the confines of public schools.2
This principle of limited protections, and the doctrinal rules that embody it,
are vague and difficult to apply;3 this is particularly true in the social-media
age, in which Facebook, Twitter, and blogs allow students to broadcast their
opinions immediately from their computers and phones. The Internet now
serves as a medium for students to air their grievances, mock their teachers
and administrators, or gossip with other students. Social media has also
enlarged the bully’s toolbox, frustrating schools’ efforts to curb such
behavior.4
This modern environment has changed the face of public education
and has forced school administrators and teachers to confront problems
uncommon or unheard of in past decades. In fact, student-expression cases
are litigated more frequently than almost all other areas of free expression
law.5 Some estimates suggest that student-expression cases have been
litigated at least 600 times in the lower courts since the Supreme Court
decided Tinker v. Des Moines Independent Community School District, the
watershed student-expression case, in 1969.6 Yet existing Supreme Court
1. U.S. CONST. amend. I.
2. See infra Part II.B.
3. See infra Part II.C.
4. See infra Part II.A.
5. Frederick Schauer, Abandoning the Guidance Function: Morse v. Frederick, 2007 SUP.
CT. REV. 205, 208 (“[C]ases involving speech in the schools are overwhelmingly more common
in the state and federal inferior courts than are cases dealing with obscenity, indecency,
incitement to or advocacy of unlawful activity, defamation, commercial advertising, campaign
finance, and any of a host of other First Amendment subjects . . . .”).
6. Id. at 225. Yet this number cannot account for all incidents in which school
administrators discipline students for their expression because varying levels of punishments
and the costs of litigation might disincentivize potential plaintiffs from bringing suits. See id. at
225–26. Moreover, the frequency with which the Supreme Court’s landmark cases have been
cited also suggests that this issue is litigated often. For example, according to a Westlaw search
on November 5, 2012, state and federal courts have cited Tinker v. Des Moines Independent
Community School District, 393 U.S. 503 (1969), 2030 times; Bethel School District No. 403 v. Fraser,
478 U.S. 675 (1986), 471 times; Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), 565
times; and Morse v. Frederick, 551 U.S. 393 (2007), 207 times. These statistics do not account for
the times students and their families bring suits but ultimately settle or when the parties resolve
the dispute before students or their parents pursue legal recourse. Many of these cases,
however, do not relate to online or off-campus expression but rather deal with more traditional
forms of on-campus expression, such as clothing that communicates se xual innuendos or
inflammatory messages. See Maryclaire Dale, ACLU Sues School over “I Love Boobies” Bracelet Ban,
HUFFINGTON POST (Nov. 15, 2010), http://www.huffingtonpost.com/2010/11/15/aclu-sues-
school-over-i-l_n_783547.html; Carrie Gann, Cheerleaders Chastised for “Inappropriate” Breast
Cancer T-Shirts, ABC NEWS (Oct. 14, 2011, 1:44 PM), http://gma.yahoo.com/blogs/abc-

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