Public School Students' Religious Speech and Viewpoint Discrimination

Abstract:     
A student wears a t-shirt with a provocative, religiously-based statement to school. Perhaps it says "Abortion Is Homicide" or maybe it reads "Homosexuality Is Shameful" followed by a religious or scriptural reference. The student is referred to the principal's office for possible disciplinary action, and at this point a school administrator must decide whether the school can and should restrict the student's expression of this message. The administrator is confronted with an area of law that is increasingly unclear; this article addresses one of those puzzles: what if the school restricts this expression because of its disruptive nature, but not speech about the same issue from a different viewpoint? This article analyzes the Supreme Court's student speech cases with particular attention to how cases arising out of the public elementary and secondary school setting have engaged or avoided the issue of viewpoint discrimination. Contrary to the often-held assumption and the conclusions of some circuits, I argue that the Court's four student speech cases can be read together as a body of law that permits schools to engage in limited viewpoint discrimination, although the exact contours of that exception remain unclear.

Number of Pages in PDF File: 38

Keywords: Schools, Education, Students, Free Exercise, Free Speech, Viewpoint Discrimination, Tinker, Morse

Accepted Paper Series