NewYorkUniversity
LawReview
Current Issue

Volume 83, Number 4

October 2008

Rethinking the Narrative on Judicial Deference in Student Speech Cases

Sean R. Nuttall

Scholars view Tinker v. Des Moines Independent Community School District as the high-water mark of student speech protection and the Supreme Court’s subsequent decisions, Bethel School District No. 403 v. Fraser, Hazelwood School District v. Kuhlmeier, and Morse v. Frederick (the Bong Hits case) as a considerable retreat from this mark. By contrast, this Note argues that Tinker, while employing strongly speech-protective rhetoric, nonetheless requires courts to defer to educators’ reasonable determinations of what speech may cause a substantial disruption and provides only very modest protection for student speech. Comparing the Tinker standard to those of Fraser and Kuhlmeier reveals that it gives no less deference to educators, and little more protection to student speech. As a consequence of misconstruing Tinker, Fraser, and Kuhlmeier, scholars have failed to address why Bong Hits’ requirement of deference to educators’ reasonable judgments is any less acceptable than Tinker’s. Deference under Tinker recognizes the difficulty inherent in predicting the potential consequences of speech without eliminating the limited protection provided by Tinker’s required showing of potential disruption. By contrast, the sole protection Bong Hits provides is in maintaining the line between advocacy and nonadvocacy, yet deferring to the reasonable judgments of educators on this question blurs the line considerably, thereby largely eliminating protection for student speech. To illuminate the differences between the Tinker and Bong Hits tests, this Note analogizes to Justice Oliver Wendell Holmes’s “clear and present danger” and Judge Learned Hand’s “express advocacy” tests and concludes that the special policy considerations that apply to the school environment do not justify departing from the principles underlying these paradigmatic First Amendment standards.