Tinkering with Student Speech: Balancing the Protection of Students' First Amendment Rights with a School's Duty to Protect.

• Author: Foley, Lindsay

"[T]he vast majority of the law in this area concerns school officials' authority to discipline students for internet speech. In this case, nothing was put into writing, and the students' speech was never shared online; the offending comments were made in person, just as school was letting out, a few hundred feet from the school's property line." (1)

1. INTRODUCTION

   For decades, courts have grappled with both determining which precedent to apply in cases concerning protection of students' speech at school, and how to apply such precedent. (2) The Supreme Court has provided guidance through opinions that established certain categories of speech that schools have the authority to regulate, and by establishing how far those regulations may reach. (3) Nevertheless, before the Supreme Court could solidify an approach to determine a school's authority to police on-campus student speech, digital communication gave rise to cyberbullying and presented the more pressing concern--determining a school's authority to combat off-campus student speech. (4) The influx of issues regarding cyber communications via text messaging and social media currently dominates student speech jurisprudence, leaving one area of law unscathed and uncertain: off-campus, in-person speech. (5)

   In one of the most impactful cases concerning students' rights to free speech, Tinker v. Des Moines Independent Community School District, (6) the Court stated that although students do not "shed their constitutional rights to freedom of speech" when they enter school, their rights are not absolute and may be reasonably regulated. (7) In later cases, the Court expanded school authority over different categories of student speech, including lewd speech, school-sponsored speech, speech concerning illegal drugs, and speech disruptive to the classroom. (8) Nevertheless, the Court's decisions created little guidance for lower courts to follow unless the student's speech fit perfectly into one of the specified categories. (9) Likewise, lower courts have also inconsistently imposed threshold tests to Tinker's application, broadening its scope to encompass off-campus student speech, both cyber and in-person communications. (10)

   Fast forward another decade, the Ninth Circuit in C.R. ex rel. Rainville v. Eugene School District 4J (11) encountered the lack of established law governing a school's authority for disciplining off-campus, in-person speech, as well as which test to apply when determining the constitutionality of the school's regulation. (12) The court noted that its sister circuits are currently split on which test is appropriate--either the nexus test or the reasonable foreseeability test--but declined to strictly adhere to one test over the other. (13) Ultimately, the Ninth Circuit applied both tests to determine the regulation's appropriateness, and then applied the Tinker standard to determine its constitutionality. (14) Still, although this decision provides a "path on what steps a school must take for its actions to survive First Amendment scrutiny," it leaves questions open as to whether courts need to apply both tests, or just one. (15)

   This Note addresses the varying interpretations of law and inconsistencies in balancing a school's authority to regulate off-campus student speech with students' constitutional rights to free speech. (16) Specifically, it examines the circuit split on the appropriate threshold tests to apply when determining whether schools have the authority to discipline students for off-campus, in-person speech. (17)

   Section II.A begins with an overview of Tinker and the two-pronged test employed in deciding when a school can restrict on-campus speech. (18) Next, it compares the Supreme Court cases decided after Tinker, discussing the holding of each in relation to Tinker, and the uncertainty that ensues. (19)

   Section II.B then focuses on the ability of schools to regulate and discipline off-campus speech, and the difficulty in applying precedent to justify this regulation and discipline. (20) This part of the Note predominantly discusses cyberspeech, compares each side of the circuit split regarding threshold tests utilized, and outlines the key factors governing each court's decision. (21) It then leads into this Note's main topic--off-campus speech that takes place in-person--and discusses the Ninth Circuit's encounter with this issue and the lack of law concerning it. (22)

   Section III.A compares the merits of each circuit's approach to off-campus student speech jurisprudence, and ultimately assesses the validity of circuit courts developing different standards. (23) Further, it identifies the contrasting issues regarding on-campus and off-campus speech that make application of the same threshold tests misguided.24 Section III.B then criticizes the specific threshold tests courts utilize when analyzing off-campus student speech, suggests a more stringent approach, and discusses the predicted consequences of the lower courts' decisions. (25) Finally, this Note concludes by stressing the need for clarity in this area of jurisprudence and suggests a direction to follow in dealing with off-campus, in-person speech. (26)

2. HISTORY

   1. Supreme Court Cases Governing School Regulation of On-Campus Student Speech

      1. Constitutionality of Public Schools' Regulation of Student Speech Under the Tinker Standard

         The Supreme Court's most notable encounter with students' First Amendment rights in public schools occurred when students were suspended for wearing black armbands at school to protest the Vietnam War. (27) In determining whether the students' suspension violated their free speech rights, the Court specified that the issue "lies in the area where students in the exercise of First Amendment rights collide with the rules of the school authorities." (28) Although students maintain their constitutional rights at school, their rights are not absolute and are subject to reasonable regulation "in carefully restricted circumstances." (29)

         More specifically, the Court held that a public school may limit students' constitutional rights to free speech and expression if such speech or expression could substantially disrupt or interfere with school activities. (30) In doing so, the Supreme Court generated the original "substantial disruption" standard used to determine whether a school's speech regulation is constitutional. (31) Although this standard encompasses the notion of protecting students' right of expression, scholars have criticized Tinker for having a "broad reach." (32)

         Nonetheless, the Court created exceptions to the Tinker standard, further broadening its reach, and narrowing students' First Amendment protection on campus. (33) The Court distinguished student speech in these later cases based on the content, mode, and forum of the speech. (34) Therefore, schools could regulate student speech in additional situations, regardless of whether the action substantially disrupted school activities. (35)

      2. The Fraser Exception for Lewd, Vulgar, Indecent, and Offensive Speech

         Over a decade after Tinker, in Bethel School District No. 403 v. Fraser, (36) the Court determined that a school did not violate a student's First Amendment right when it suspended the student for giving a speech that contained sexual metaphors at a school assembly. (37) In doing so, the Court distinguished Fraser from Tinker and indicated that the test outlined in Tinker was not applicable because of the differing content of the student speech in each case. (38) Instead, the Court's decision to uphold the student's suspension was rooted in the school's responsibility of instilling its students with the "habits and manners of civility" necessary to be productive citizens. (39)

         By distinguishing the speech in Fraser from the political speech in Tinker, the Court effectively granted schools more deference to regulate student speech. (40) Following this decision, public schools had the authority to regulate lewd, vulgar, indecent, and offensive speech without showing that this speech would cause substantial disruption to school activities. (41) Instead, the Court granted school authorities significant power to regulate any student speech detrimental to the "school's basic educational mission." (42) Consequentially, schools then had two ways in which they could justify regulation or discipline of student speech at school. (43)

         It followed that judicial precedent regarding a school's authority to regulate student speech at school became extremely convoluted. (44) Specifically, confusion arose when courts were faced with student speech containing neither "sexual content" nor a "political 'message,'" but discipline or regulation seemed appropriate for reasons including maintaining the school's educational responsibilities. (45) This led to courts deciding to create further exceptions based on the specific speech involved. (46)

      3. The Hazelwood Exception for School Sponsored Speech

         Following Fraser, the Supreme Court established another exception to Tinker, creating a third category of student speech school authorities could regulate. (47) In Hazelwood School District v. Kuhlmeier, (48) a school's principal removed two student articles from the school newspaper because one article dealt with teen pregnancy, and the other dealt with divorce. (49) The school rationalized that issues such as sexual activity were inappropriate for a school newspaper and some of the younger readers. (50)

         Although the Hazelwood Court recognized Tinker's controlling nature, it ultimately distinguished Hazelwood due to the differing issues presented. (51) The issue in this case did not concern the school merely tolerating particular student speech; rather, the issue was whether the school needed to affirmatively promote particular student speech. (52) Thus, instead of applying previous standards of review, the Court established a new set of circumstances where school officials may censor...