Making Sense of High School Speech After Morse v. Frederick
Cordes, Mark W.
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This Article will examine the scope of student speech in high schools after Morse v. Frederick. Part I will first briefly review the Court's decisions in Tinker, Fraser, and Hazelwood. Part II will then analyze the Court's decision in Morse, giving close attention to Justice Alito's concurrence as well as the majority opinion. Part III will then briefly summarize the status of student free speech rights after Morse. Part IV will then briefly explore three special types of student speech issues that raise distinct analytical concerns and are not directly governed by Morse, yet are important for a broader understanding of student speech in public schools. This will include some discussion of lower court decisions in each of these categories. Part IV.A will discuss the issue of limited public forums in public schools, especially as illustrated by the issue of student clubs. Part IV.B will examine the issue of school- sponsored and curricular speech as developed in Hazelwood. Part IV.C will examine the special problem of school review and approval policies for student distribution of literature, which constitute prior restraints, a highly sensitive constitutional issue. Finally, Part V will examine more closely the central issue of restrictions on student speech that occur outside the public forum and school-sponsored speech context, in other words, private student speech that happens to occur on school property. This is the heart of school speech issues, and it is here that Morse is most relevant. This section will examine the variety of issues lower courts have addressed, suggesting that the Morse balancing test provides schools with the ability to impose viewpoint restrictions on more peripheral speech advocating alcohol and drug use, violence, and similar speech. On the other hand, Morse indicates that core political, religious, and social commentary speech should be given significant protection in schools. Here, Morse suggests that speech can be restricted only when it would substantially interfere with school activities or harm other students, the two grounds recognized in Tinker.
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