Rethinking the Academic Narrative on Judicial Deference in Student Speech Cases

Abstract

Most scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student-speech protection, and the Court's two subsequent decisions, Bethel School District No. 403 v. Fraser and Hazelwood School District v. Kuhlmeier, as a considerable retreat from this mark. In the same vein, the nascent scholarly literature on Morse v. Frederick (the "Bong Hits" case) has viewed the decision as the latest step in the Court's retreat. In particular, scholars have criticised Bong Hits' requirement that courts defer to educators' reasonable determinations of what speech constitutes advocacy of illegal drug use. Many scholars have argued that this deference is a departure from the heightened judicial scrutiny that the Tinker "substantial disruption" test ostensibly requires.

By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires that courts defer to educators' reasonable determinations of what speech may cause a substantial disruption and actually provides only very modest protection for student speech. By the same token, comparing the Tinker standard to that of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. The analysis of the three standards is supported by a comprehensive review of lower court decisions from 1969-2007 applying Tinker, Fraser, and Kuhlmeier.

As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits' requirement of deference to educators' reasonable judgments is any less acceptable than Tinker's. This Note attempts to provide this explanation. Deferring to educators' reasonable decisions under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech, without eliminating the limited protection provided by Tinker's required showing of potential disruption. By contrast, Bong Hits does not require any showing of potential harm, but only a demonstration that speech reasonably could constitute advocacy of illegal drug use. The sole protection Bong Hits provides is in maintaining the line between advocacy and non-advocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech.

To illuminate the importance of the doctrinal difference between the Tinker and Bong Hits tests, the Note analogizes to two paradigmatic First Amendment standards developed in the courts' subversive advocacy jurisprudence -- Justice Oliver Wendell Holmes' "clear and present danger" and Judge Learned Hand's "express advocacy" tests -- and concludes by demonstrating that the special policy considerations that apply to children and the school environment do not justify departing from the principles underlying these two tests.

Keywords: student speech, bong hits, first amendment, tinker, morse v. frederick, free speech