Tinker-ing with speech categories: solving the off-campus student speech problem with a categorical approach and a comprehensive framework.

Author:Dranoff, Scott

TABLE OF CONTENTS INTRODUCTION I. CURRENT LAW AND PROPOSED SOLUTIONS A. Supreme Court Student Speech Cases 1. Tinker v. Des Moines Independent Community School District 2. Bethel School District No. 403 v. Fraser 3. Hazelwood School District v. Kuhlmeier 4. Morse v. Frederick B. Academic Proposals 1. The On-/Off- Dichotomy a. Objective Intent of the Speaker b. Additional Intent-Based Approaches c. Scope of a Student 2. Regulatable vs. Protected Off-Campus Speech a. Speech that Interferes with the Rights of Others b. Speech that Impedes Learning 3. Highlighting the Need for Simplicity 4. Combining Key Elements II. LOWER COURT CASES AND PROPOSED FRAMEWORK A. Proposed Framework B. Threatening Speech 1. J.S. ex rel. H.S. v. Bethlehem Area School District 2. Wisniewski ex rel. Wisniewski v. Board of Education of the Weedsport Central School District 3. LaVine v. Blaine School District C. Student Speech About Other Students 1. Kowalski v. Berkeley County Schools 2. Emmett v. Kent School District No. 415 3. J.C. ex rel. R.C. v. Beverly Hills Unified School District D. Student Speech About Teachers 1. Evans v. Bayer and Fenton v. Stear E. Student Speech About Administrators 1. Voluntary Competition Exception 2. School Principals 3. Clarifying the On-/Off- Prong Through Speech About Administrators and School Infrastructure F. Summary of Proposed Framework III. CRITICISMS A. Too Restrictive of Student Speech B. Too Much Power to Administrators C. Threatening Speech and Fighting Words Are Not Necessarily "True Threats" D. Too Protective of Speech About Teachers and Administrators CONCLUSION INTRODUCTION

"You are a bad person and everybody hates you. Have a shitty rest of your life. The world would be a better place without you." (1) Online messages like this one, which prompted Megan Meier to kill herself in 2006, (2) are shockingly common among adolescent and teen students. (3) Over half have been bullied online, more than one-third have been threatened online, and over fourteen percent have considered or attempted suicide as a result. (4) Off-campus student speech, especially that which occurs online, has become a sharpened tool for bullying, (5) can cause severe and substantial disruptions of the school environment, (6) and can even foreshadow fatal incidents both on and off campus. (7) Yet currently no uniform standard for regulating off-campus speech exists. (8)

Off-campus student speech has been a contested topic since the Supreme Court held in Tinker v. Des Moines Independent Community School District that on-campus student speech may be regulated if it might reasonably cause a substantial disruption of school activities. (9) Since then, lower courts have struggled to apply the Tinker standard to speech that occurs off campus and, since the advent of the Internet, online. (10) The resulting decisions have led to several variations on the Supreme Court's standards. (11) In determining whether the speech can be regulated, lower courts have considered factors such as foreseeability of a substantial school disruption, (12) foreseeability that the speech would reach campus, (13) the actual place of the speech's reception, (14) and the intent of the speaker. (15)

Likewise, legal scholars and law students have suggested myriad tests for determining if off-campus student speech can be regulated. These tests include abandonment of the Tinker test in off-campus speech cases, (16) application of the Tinker test with additional restrictions, (17) various methods of determining the speaker's intended place of dissemination, (18) and frameworks for determining what types of off-campus speech may be regulated under restrictions for on-campus speech. (19)

To clarify the disparate case law and academic proposals, this Note will argue for a comprehensive framework that takes a new approach to student speech--the categorical approach. To date, few scholars have proposed solutions that comprehensively address both on- and off-campus speech, and none have taken the categorical approach advocated here. The proposed framework will regulate student speech according to which of the following categories it falls into: on-campus speech, threatening off-campus speech, nonthreatening off-campus speech about other students, and nonthreatening off-campus speech about teachers or administrators. (20)

Under the proposed framework, student speech will be considered on-campus if: (1) it actually takes place on campus; (2) it advocates on-campus action; or (3) a reasonable person would believe, given the circumstances, that the student intended for his speech to reach the school. (21) If student speech is deemed on-campus, it will be subject to the Tinker standard and therefore subject to regulation if the speech might reasonably cause substantial disruption of school activities. (22)

Speech that does not meet the above standard will be considered off-campus under the proposed framework. Threatening off-campus speech will be subject to regulation if it could reasonably fore- shadow violence. Nonthreatening off-campus speech about other students will be subject to regulation if a reasonable person would expect it to cause a substantial disruption of the targeted students' school activities. Nonthreatening off-campus speech about teachers and administrators will be protected from regulation unless it is about a coach or other leader of a voluntary student activity.

This framework is based on the principle that student speech generally receives less constitutional protection than citizen speech in other contexts. (23) Following from that principle, and from the regular damage caused by cyberbullying and similar speech, student speech about other students should receive less First Amendment protection than student speech about teachers and administrators. Though courts have not explicitly classified off-campus speech based on the party it impacts, one scholar suggests that courts have been doing so implicitly all along. (24)

Part I of this Note will review the current state of student speech law and proposed approaches to the problem. This will include a review of the four Supreme Court decisions that have addressed student speech, followed by a review of the commentary addressing the on-/off-campus dichotomy, the content and effects of the speech, and the need for an easy-to-apply standard. Part II will give context to this Note's proposed framework and show how it would apply through a review of lower court student speech cases. This analysis will also demonstrate the potential value of nonthreatening student speech about teachers and administrators and suggest a unifying principle for the seemingly disparate lower court case law. Finally, Part III will discuss some of the most formidable potential criticisms of the proposed framework and how they can be addressed.

By adopting this Note's proposed changes to student speech law, courts can promote clarity, consistency, and a better academic environment for all.


    In order to appreciate the off-campus student speech problem, an understanding of the foundational case law and the existing scholarship is necessary. This Part will briefly review the Supreme Court case law on student speech and more thoroughly analyze the present state of academic proposals to the off-campus student speech problem. With that background, Part II will move forward with the proposed framework and its application to lower court cases.

    1. Supreme Court Student Speech Cases

      1. Tinker v. Des Moines Independent Community School District

      In its seminal student speech case, the Supreme Court articulated the rule that would define the contours of over forty years of debate. On the question of whether students could wear black armbands in school to protest the Vietnam war, the Court held that schools may regulate on-campus speech if that speech might reasonably cause "substantial disruption of ... school activities." (25) The Court did not explicitly address the question of off-campus student speech, but implied that off-campus speech was fully protected under the First Amendment with the pronouncement that "[i]t can hardly be argued that ... students ... shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (26) This foundational precedent has never been overruled, and it has become the bedrock of student speech law in the United States. (27)

      2. Bethel School District No. 403 v. Fraser

      The second Supreme Court case to address student speech, Bethel School District No. 403 v. Fraser, upheld punishment for a student's "lewd and indecent" speech. (28) This case established three essential points for the present discussion. First, the punishable speech was "unrelated to any political viewpoint;" (29) second, the speech was punishable because of its content; (30) and third, the Court affirmed that "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." (31) Thus, the Court held that in some instances, regulation of student speech because of its content is permissible. (32)

      3. Hazelwood School District v. Kuhlmeier

      Two years later, the Supreme Court decided Hazelwood School District v. Kuhlmeier. (33) The Court held that a high school newspaper did not constitute a public forum, and as a result, in some situations school officials could regulate its content. (34) The Court also made an important distinction: individual student expression is entitled to greater protection than speech that could be construed as subsidized by the school. (35)

      4. Morse v. Frederick

      Most recently, the Supreme Court revisited this issue in the context of speech at a school-sponsored event. (36) On a field trip, Joseph Frederick unfurled a banner that his principal, Deborah Morse, believed was advocating illegal drug use. (37) Consistent with school policy, Morse confiscated Frederick's banner and...

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