Skip to main content
Unpublished Paper
An Imminent Substantial Disruption: Towards a Uniform Standard For Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline.
ExpressO (2014)
  • Allison G Kort
Abstract
ABSTRACT An Imminent Substantial Disruption: Toward a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline. By Allison Kort Twenty-five years before the Supreme Court’s landmark school speech decision in Tinker v. Des Moines, 393 U.S. 503, 504 (1969), the Court cautioned against placing too much discretion in the hands of school boards. In Tinker, when students wore black armbands to protest the Vietnam War, the Supreme Court determined that student speech may not be censored when the record demonstrates no facts which would reasonably have led school authorities to forecast a “substantial disruption of or material interference” with school activities. Over the course of the last four decades, however, the Court has returned to the school boards the power to invade the sphere of intellect and spirit in public schools. Supreme Court decisions and lower court opinions have chipped away at students’ rights by making exceptions to Tinker, deferring to the school board on the “reasonableness” of the school’s action, and deciding these cases on the basis of the speech’s content. The resulting outcomes fail to provide uniform applicable standards by which new cases may be decided. Students are subject to personal opinions of the school boards, with whom rests “the determination of what manner of speech in the classroom or in school assembly is inappropriate.” This Article argues that Tinker should be universally applied with less deference to school administrators. The “reasonable forecast” test in Tinker must be defined, so that administrators may work within some guidelines to craft school policies, and students may be aware of their rights. This Article argues that the inquiry should involve an analysis of several terms. First, the “reasonably forecast to cause a substantial disruption” language should be defined so that only speech that meets the “incitement to imminent disruption” of legitimate state interests may be restricted. Second, this Article argues that administrators must justify restricting student speech in order to protect the “work and discipline of the school” that is a legitimate state interest. Rather than a separate test by which to measure speech given to captive audiences inside the school building, the “lewd, vulgar, and plainly offensive” test announced in Bethel School District v. Fraser, 478 U.S. 675 (1986). should be considered as part of Tinker’s “work and discipline” test: the interest in teaching students the “boundaries of socially appropriate behavior.” School administrators may then, without engaging in viewpoint discrimination, inculcate manners and habits of civility in the public schools, while maintaining the classroom as “peculiarly the ‘marketplace of ideas.”
Keywords
  • student speech,
  • First Amendment,
  • Constitutional Law,
  • Juvenile
Publication Date
Fall 2014
Citation Information
Allison G Kort. "An Imminent Substantial Disruption: Towards a Uniform Standard For Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline." ExpressO (2014)
Available at: http://works.bepress.com/allison_kort/1/