A Common Judicial Standard for Student Speech Regulations

• Published in: Texas law review Vol. 102; no. 5; pp. 1059 - 1098
• Main Author: Dreyfus, Daniel B
• Format: Journal Article
• Language: English
• Published: Austin University of Texas, Austin, School of Law Publications, Inc 01-04-2024
• Subjects: Colleges & universities; Curricula; Extracurricular activities; First Amendment-US; Higher education; Pedagogy; Public schools; Regulation; School districts; Speech; Students; United States > US; Des Moines Iowa
• ISSN: 0040-4411; 1942-857X

The First Amendment's applicability to student speech in public education is a heavily litigated and widely studied issue. Much of this legal action and commentary has centered on the Supreme Court's two major standards for reviewing student speech regulations-formulated successively in Tinker v. Des Moines Independent Community School District and Hazelwood School District v. Kuhlmeier. The Court has never clarified exactly what educational institutions are covered by these standards, leaving their applicability to higher education disputed by academics and, to a lesser extent, lower courts. Additionally, Tinker is less deferential to school administrators than Hazelwood, creating a major tension in First Amendment law. This Note proposes a common standard applicable to all levels and forms of public education as an alternative to the separate Tinker and Hazelwood standards. Under this new standard, an educational institution may regulate student speech within a curricular context so long as those regulations are reasonably related to legitimate pedagogical concerns. Outside a curricular context, student speech regulations are only permissible if the speech has or would likely materially and substantially disrupt pedagogical activities, prevent appropriate discipline, or interfere with the legal rights of others. In bringing the two standards together, this Note eliminates a major flaw with the Hazelwood standard-the "school-sponsored" requirement-and clarifies elements the Supreme Court previously left vague.