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Regulating Student Speech: Suppression Versus Punishment

Emily Gold Waldman

Pace University - School of Law

March 22, 2009

Indiana Law Journal, Vol. 85, 2010

This Article examines the Supreme Court's student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex - given schools' experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech - the blurring of that distinction has become increasingly problematic, both doctrinally and theoretically.

In this Article, I assert that the current framework, while appropriate when the speech restriction takes the form of suppression, is insufficient when applied to student punishment. The free speech and due process interests implicated by punishing students for their speech require additional protection. In order for a school to constitutionally punish a student for her speech, it should not be enough to show that the speech could itself be suppressed under the key Supreme Court cases. Schools should also have to show that (1) the student speaker had adequate prior notice that the speech was prohibited and (2) that the actual punishment was reasonable.

Number of Pages in PDF File: 41

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Date posted: March 23, 2009  

Suggested Citation

Waldman, Emily Gold, Regulating Student Speech: Suppression Versus Punishment (March 22, 2009). Indiana Law Journal, Vol. 85, 2010. Available at SSRN: https://ssrn.com/abstract=1366713

Contact Information

Emily Gold Waldman (Contact Author)
Pace University - School of Law ( email )
78 North Broadway
White Plains, NY 10603
United States
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