The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students' First Amendment Rights

Abstract

The Supreme Court has allowed primary and secondary schools to broadly regulate their students' speech, while expressing ambivalence over whether universities possess the same power. Despite the current federal circuit split over the public university's right to regulate student speech, commentators have largely ignored the issue. In this article, I examine the conflicting federal doctrine, and then offer a clarifying theory based on forgotten constitutional history. I recover the constitutional history of the Twenty-Sixth Amendment in order to argue that, with respect to constitutional rights such as free speech, a bright line exists between primary and secondary schools, on the one hand, and universities, on the other. In providing a detailed, historical analysis of the Twenty-Sixth Amendment debates, the article reveals that the ratifiers understood the Amendment to establish eighteen-year-olds as full-fledged citizens, with all the attendant constitutional rights and responsibilities. After covering the history of the Twenty-Sixth Amendment - and the subsequent, but now forgotten, legal incorporation of this history into constitutional and tort law - the article argues that a proper reading of the Constitution renders the state treating eighteen-year-olds as children unconstitutional. This, in turn, prohibits the in loco parentis university, and thereby creates a bright line between secondary schools and universities.

Keywords: Twenty-Sixth Amendment, First Amendment, free speech, public school, universities, students, children, adults, full citizenship, in loco parentis