13 Pages Posted: 26 Mar 2008
Date Written: 2000
Will the Roberts Court Turn its Back on Tinker?
In June of 2007, the Roberts Court released Morse v. Frederick, the closely-watched student speech case from Juneau, Alaska. In that case, a student was disciplined by school authorities for unfurling the now-infamous "Bong Hits 4 Jesus" banner across the street from a public high school. Chief Justice Roberts' majority opinion held that the school principal acted constitutionally in limiting student speech that reasonably could be interpreted as promoting illegal drug use. The Tinker standard of "substantial disruption" was found not to be applicable to the situation and Justice Thomas opined in a concurring opinion that "the better approach is to dispense with Tinker altogether ...."
This Article describes the Supreme Court's earlier cut-backs of Tinker as well as its constitutional endorsement of searches of students by public school official. Both of these trends converged in the 2007 Morse case to allow student speech suppression by school authorities seeking to allegedly promote student safety.
The first section of the Article discusses several studies concerning the statistics on school violence and whether it was increasing in the late 1990's. The next section reviews various federal laws relating to school safety. The major Supreme Court student speech and search cases preceding Morse are next discussed, notably New Jersey v. T.L.O., Vernonia, Bethel v. Fraser, and Hazelwood v. Kuhlmeier, all of which are discussed in Morse.
The Article concludes: "Students are now attending public school with the expectation and experience of a constitutionally constrained setting. This may make them in turn more receptive, as adults, to similar rights limitations, or at least complacent should adult rights infringements occur." Morse v. Frederick increases the likelihood of this outcome and seems to indicate that the over-ruling of the Tinker standard presaged in the Article is just a case or two away.
Suggested Citation: Suggested Citation
Dodd, Victoria J., Student Rights: Can We Create Violence-Free Schools That Are Still Free? (2000). New England Law Review, Vol. 34, p. 623, 2000. Available at SSRN: https://ssrn.com/abstract=1113167