Evan Mayor · April 2009
77 GEO. WASH. L. REV. 799 (2009)
Ever since the Supreme Court declared that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court has been struggling to determine what level of First Amendment protection it should provide to student speech. Part I of this Note will describe this struggle by providing a brief history of student speech law, including relevant Supreme Court decisions. Next, Part II will describe the current state of the law regarding the applicability of viewpoint neutrality to student speech. In this section, the Note will analyze the current split in the circuit courts on whether the First Amendment requires viewpoint neutrality in the context of school-sponsored student speech. This section will also analyze the recent Morse v. Frederickdecision, which arguably allows administrators to discriminate based on viewpoint—even in censoring student speech that is not school-sponsored—if only in the limited context of speech that advocates drug use.
Part III will analyze why viewpoint neutrality is an important First Amendment principle in the context of student speech. This Part will show that because the Supreme Court has not addressed the circuit split regarding the necessity of viewpoint neutrality in censoring school-sponsored speech and because the Morse decision suggests a willingness of the Court to allow viewpoint discrimination even in the context of independent student speech, a solution outside of the courts is required to protect students’ free speech rights. Part IV will address the counterarguments to a viewpoint neutrality requirement.
Finally, Part V will analyze existing state laws related to student free expression that give more free speech rights to students than the Court has interpreted the First Amendment to require. Some of these laws were passed specifically to counteract a Supreme Court decision limiting students’ free expression rights. In light of the 2007 Morse decision that reduced protections for student speech, states must step in again to protect student speech. The Note will propose model legislation for states that have not yet adopted student free expression laws that will give students greater protection in expressing controversial viewpoints—including unpopular viewpoints on homosexuality—while allowing administrators the ability to maintain order in the nation’s public high schools. The Note will conclude that the model legislation strikes the right balance between maintaining order and allowing students to express themselves.
