Student Speech: Part I

In light of recent appeals to the United States Supreme Court (J.S. v. Bethlehem Area School District, 807 A.2d 803, which the Court declined to address) now seems like a good time to discuss school speech. School speech provides an interesting contrast between constitutional freedoms and administrative reactions- especially interesting given the youth of the individuals involved and the idea that schools are somehow preparing students for the adult world.

To begin this post series on schools, let’s start with a basic history of the court’s reasoning(s) for abrogating school children’s rights.  The federal courts have held that a right is based on a legitimate expectation of protection.[1] The Supreme Court has consistently held that children have lesser expectations of protection and therefore hold lesser rights.[2] There are three doctrines generally offered by the Court to justify the diminishment of rights in schools: the in loco parentis doctrine, the minimally intrusive standard, and the educational mission doctrine.[3] The importance accorded to educational mission doctrine generally make is the most important justification for the court when analyzing student rights cases.

A.         The In Loco Parentis Doctrine

The in loco parentis doctrine is most often used to justify actions that would be appropriate had a parent taken them, like punishment for lewd speech, seizure of belongings, detainment of a student, or action taken to protect other students.[4] The idea is that a parent would not have to justify similar disciplinary actions to a court, and so the school is not required to either because it stands in the place of the parent.[5] In New Jersey v. TLO, the Court specifically rejected the in loco parentis doctrine as justification for abrogation of student rights.[6] However, while the courts’ stance is that the doctrine no longer applies, the doctrine is still implied in the educational mission and so still remains important to courts’ decisions.[7]

B.         The Minimally Intrusive Standard

The minimally intrusive standard began with Vernonia School District v. Acton and applies mainly to school searches.[8] The courts have said so long as the school administrators ensure the measures taken to search the child are minimally intrusive and the school has an important pedagogical concern for the invasion, it is sufficient to protect the interests of students.[9] Recent cases have called into question exactly what constitutes a minimally intrusive search.[10] This justification is not important for this topic, so it will not be analyzed in depth.

C.        The “Educational Mission” Doctrine

The Supreme Court has determined that schools must be able to carry out their educational mission in a safe and disruption-free environment.[11] Furthermore, the Court has indicated that the nature of schools is such that administrators must be able to act quickly and decisively prior to allowing a situation to reach a crisis level.[12] The educational mission diminishes rights of school children because it places the school in the position of determining what policies and rules are necessary to successfully educate the child.[13] This justification is mentioned in almost every case of school children’s constitutional rights and appears to be the most important justification for diminishing student rights from the Court’s view.[14] Although the educational mission certainly affects due process and the issue of probable cause, in this analysis I would like to focus on free speech.

1.         The Educational Mission Doctrine and Free Speech

The educational mission doctrine extends to curtailing free speech in schools as well.[15] The First Amendment has generally requires a strict scrutiny review by courts to ensure a narrow tailoring of laws restricting free speech.[16] Narrow tailoring requires that the law in question be closely restricted to the underlying compelling government interest.[17] But schools have been permitted by courts to lapse into various versions of the reasonableness test and the intermediate scrutiny test.[18] Under intermediate scrutiny, a court upholds the regulation in question if it advances some important government interest and is logically tailored to that interest.[19]

Tinker v. Des Moines determined that school children held comprehensive First Amendment rights even when considering the “special characteristics of the school environment.”[20] The comprehensive strict scrutiny protection recognized in Tinker has not been applied by federal courts since the decision was made.[21] However, recent cases have distinguished various types of speech from that protected in Tinker.[22] Instead, the test for First Amendment protection regarding the rights of students—in or out of school—has slipped to the lower intermediate scrutiny standard.[23]

Next Monday the post will begin an analysis of how these doctrines have affected the past court decisions. Again, I will focus generally on federal rulings.

---

[1] Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633, 2641 (2009); Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995); New Jersey v. TLO, 469 U.S. 325, 338 (1985); Phanuef v. Fraikin, 448 F.3d 591, 595–96 (2d Cir. 2006);  Wofford v. Evans, 390 F.3d 318, 327 (4th Cir. 2004)  390 F.3d at 327.

[2] See Vernonia, 515 U.S. at 654; TLO, 469 U.S. at 338.

[3] Redding, 129 S. Ct. at 2641 (holding that a school must be minimally intrusive when searching a child); Vernonia, 515 U.S. at 654 (determining that schools sometimes must act as a parent would); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986) (finding that a school stands in the special position of teaching young people what is and is not appropriate, as well as educating them, and this must be accounted for).

[4] Redding, 129 S. Ct. at 2656; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327; Jacob Tabor, Student’s First Amendment Rights in the Age of the Internet: Off Campus Cyber-Speech and School Regulation, 50 B.C. L. REV. 561, 573 (2009).

[5] Redding, 129 S. Ct. at 2639; TLO, 469 U.S. at 337; see also Wofford, 390 F.3d at 327.

[6] 469 U.S. 325, 33–37 (1985); see also Vernonia, 515 U.S. at 655.

[7] See Morse v. Fredrick, 551 U.S. 393, 406 (2007) (finding that schools had a duty to prevent advocation of illegal drug use); TLO, 469 U.S. at  341–42 (1985) (holding that school officials, when they search students, act in as state officials and not as surrogates for the parents); Ingraham v. Wright, 430 U.S. 651, 672, 682 (1977) (finding that the concept of “parental delegation” is not “entirely consonant” with modern education); Goss v. Lopez, 419 U.S. 565, 574 (1975) (holding that although the power of schools to make and enforce rules is very broad, the school must still develop fundamentally fair procedures to determine guilt before meting out punishment); Doninger v. Niehoff, 514 F. Supp. 2d 199, 217 (D. Conn. 2007) (finding that a school has a duty to prohibit the use of vulgar terms and to encourage values of civility); Poling v. Murphy, 872 F.2d 757, 763 (6th Cir. 1989) (finding that a school may punish speech when it is insulting or derogatory towards school officials).

[8] See 515 U.S. 646, 658 (1995); e.g. Redding, 129 S. Ct. at 2641 (holding that a student may be searched upon reasonable suspicion of illegal activity so long as it is done in the minimally intrusive manner).

[9] See Vernonia, 515 U.S. at 655; Phanuef v. Fraikin, 448 F.3d 591, 595 (2d Cir. 2006); Sara Young, PIAC (Pee in a Cup)—The New Standardized Testing for Student Athletes, 10 BYU EDUC. & L.J. 163, 174 (2010).

[10] Redding, 129 S. Ct. at 2641 (stating that a “rule of reasonableness” must be used in searching students). See generally Miller v. Mitchell, 598 F.3d 139 (3rd Cir. 2010) (discussing the role of prosecutors in search of cellular phones confiscated from minor students while in school).

[11] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment); Goss, 419 U.S. at 582–83, 595 (finding that maintaining security and order requires allowing flexibility for school administrators that would not be permissible in adult society).

[12] Amanda L. Dixon, Random Drug Testing in Secondary Schools—Where Does Georgia Stand?, 3 J. MARSHALL L. REV. 357, 374–75 (2010).

[13] Vernonia, 515 U.S. at 656 (finding that the rights of a child must be of an appropriate nature for a school environment).

[14] Vernonia, 515 U. S. at 656; TLO, 469 U.S. at 338–39; Goss, 419 U.S. at 582–83, 595 (1975). See Tinker v. Independent Community Sch. Dist., 393 U.S. 503, 508 (1969); Phanuef, 448 F.3d at 595–96; Wofford, 390 F.3d at 327.

[15] See Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.

[16] Cent. Hudson Gas & Electric Corp. v. Pub. Servs. Comm. of N.Y., 447 U.S. 557, 565–66 (1980).

[17] Jeffery M. Shaman, Cracks in the Structure: The Coming Breakdown of the Levels of Scrutiny, 45 OHIO ST. L.J. 161, 162 (1984).

[18] See Morse, 551 U.S. at 408; Fraser, 478 U.S. at 683.

[19] See  James Ianelli, Punishment and Student Speech: Straining the Reach of the First Amendment, 33 HARV. J. L. & PUB. POL’Y 885, 893 (2010); Ashutosh Bhagwat, The Test That Ate Everything: Intermediate Scrutiny in First Amendment Jurisprudence, 2007 U. ILL. L. REV. 783, 792 (2007).

[20] Tinker, 393 U.S. at 506.

[21] See M.A.L. ex rel M.L. v. Kinsland, 543 F.3d 841, 849 (6th Cir. 2008) (finding that “contrary to [plaintiff's] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs v. Clark Cnty. Sch. Dist., 526 F.3d 419, 429 n.24 (2008) (noting “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases ”); Canady v. Bossier Parish Sch. Bd., 240 F.3d 437, 443 (5th Cir. 2001) (describing Tinker as a higher standard).

[22] See Kinsland, 543 F.3d at 849  (finding that “contrary to [plaintiff’s] arguments, this case is not governed by the heightened ‘material and substantial interference’ standard articulated by the Supreme Court in Tinker”); Jacobs, 526 F.3d at 429 n.24 (noting that “Tinker did not equate its ‘substantial interference’ test with the ‘strict scrutiny test’ that is now commonly used in First Amendment cases”); Ianelli, supra note 19, at 890–93 (determining that a much used form of scrutiny regarding student speech is intermediate scrutiny); Geoffrey A. Starks, Tinker’s Tenure in the School Setting: A Case for Applying O’Brien to Content Neutral Regulations, 120 YALE L. J. ONLINE 65, 67 (2010).

[23] Morse, 551 U.S. at 397; Fraser, 478 U.S. at 683.