36 Pages Posted: 5 Feb 2012 Last revised: 11 Jun 2015
Date Written: February 1, 2012
This Note advocates the appropriate framework for analyzing emotionally harmful speech in schools and illustrates the limits on school restrictions of such speech. By focusing almost exclusively on the Tinker line of “student speech” cases, scholars and lower courts have reached wildly conflicting conclusions about the permissibility of school restrictions on students’ emotionally harmful viewpoints. But the Supreme Court situated Tinker within a broader jurisprudence on protecting minors from harmful speech outside of schools. As I show, looking to that protectionist jurisprudence helpfully clarifies the contours of Tinker as it applies to emotionally harmful speech.
On the one hand, protectionist cases reveal that schools can restrict emotionally harmful speech under Tinker’s “rights of others” prong. On the other hand, protectionist jurisprudence imposes clear limits on restricting harmful speech, such as when the audience consists of mature students voluntarily engaging in a civil discussion of a controversial subject. Although the doctrinal framework adopted here supports school restrictions on verbal bullying more generally, this Note focuses on the more controversial — and potentially more prevalent — category of speech not targeted
at a specific student.
Keywords: First Amendment, law, education, student speech, hate speech, homosexuality, bullying, homophobia, Tinker, Ginsberg
Suggested Citation: Suggested Citation
Conover, Kellam, Protecting the Children: When Can Schools Restrict Harmful Student Speech? (February 1, 2012). 26 Stan. L. & Pol'y Rev. 349 (2015). Available at SSRN: https://ssrn.com/abstract=1998142 or http://dx.doi.org/10.2139/ssrn.1998142