Doubtful Threats and the Limits of Student Speech Rights

Abstract

Public school authorities are charged with occasionally conflicting missions, including the promotion of academic learning, independent thought, personal responsibility, and a measure of orderliness. Conflicts among these values often take the form of what that Article refers to as "doubtful threats," in which the threat is reasonable judged, under the circumstances, to be unlikely to be carried out, and at a minimum to lack the element of imminence. Often, courts adjudicate such cases by finding a "substantial disruption" under Tinker. Among the Article's conclusions is that candor and transparency suggest that the courts should instead shift the focus in such cases from "disruption," as defined in Tinke, to something more akin to "distraction." While a focus on distraction is not endorsed by the language of Tinker, such a focus is both more accurately descriptive of the circumstances in many of the doubtful threat cases and at least equally faithful to a sensible balancing of the public schools' basic civic and educational missions.