A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise)
Emily Gold Waldman
Pace University School of Law
Journal of Law & Education, Vol. 37, 2008
After the Supreme Court granted certiorari in Morse v. Frederick in December of 2006, it received an unusual mix of amicus briefs in support of ACLU-represented high school senior Joseph Frederick. Frederick, who had sued his principal after being suspended for waving a banner stating Bong Hits 4 Jesus at an Olympic torch rally that he attended with classmates during school hours, had on his side not only the usual suspects, such as the Student Press Law Center and the National Coalition Against Censorship. Also supporting him were six conservatively-oriented religious advocacy groups: the American Center for Law and Justice; the Christian Legal Society; the Alliance Defense Fund; the Liberty Legal Institute; Liberty Counsel, and the Rutherford Institute.
As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere nonsense words designed to attract television cameras. But they were concerned that in the course of resolving the case, the Supreme Court would recognize on broadly-worded grounds the school's right to censor his speech, thus setting a precedent that implicitly limited other students' rights to express their religious views at school. Their concern is not surprising: in recent years, there have indeed been an increasing number of cases involving clashes between students seeking to express their religiously-motivated views at school and schools that have restricted such messages out of concern that they will be hurtful to other students. These conflicts have generally arisen in the context of anti-gay and pro-life speech.
In Morse itself, the Supreme Court ultimately ruled for the school district on a narrow, drug-focused rationale that did not resolve the developing split over how to approach such cases. But while Morse's holding was explicitly narrow, aspects of the majority opinion and Justice Alito's concurrence do have some interesting implications for how to approach situations where students' religiously-motivated speech may be hurtful to other students.
In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being directed at particular named (or otherwise identified) students. Schools should receive great latitude to restrict the first category of speech, which essentially amounts to verbal bullying. By contrast, potentially hurtful speech that does not single out specific students and simply expresses a general viewpoint should be restricted only if it is likely to materially disrupt at least one other student's education (which I define as tangibly interfering with his ability to learn and succeed at school).
Number of Pages in PDF File: 30Accepted Paper Series
Date posted: June 16, 2008
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