Professor David Han, Refining Student Speech Doctrine -- UC Davis Law Review (forthcoming)

Professor David S. Han's article, Refining Student Speech Doctrine, will be published in the UC Davis Law Review. The article examines current student speech doctrine and argues that courts should extend distinct degrees of protection to three different categories of student speech.

Abstract of Refining Student Speech Doctrine

This Article argues that current student speech doctrine—which is composed of the content-agnostic “substantial disruption” test of Tinker v. Des Moines Independent School District and a small handful of exceptions—fails to adequately capture both the theoretical foundations underlying the doctrine and many of the fundamental intuitions regarding student speech shared by courts and school administrators. At the heart of the doctrine’s shortcomings is the presumption that all student speech, outside of a few limited exceptions, is equally valuable and entitled to the same degree of constitutional protection. But if, as the Court has repeatedly stated, the primary theoretical justification for protecting student speech is the promotion of democratic education—preparing students for active participation in open democratic discourse—this justification broadly revolves around speech on matters of public concern, like the black armbands protesting the Vietnam War in Tinker itself. In other student speech contexts, however—like those involving speech regarding purely private matters, personal insults, or nonsense—this justification is considerably weaker or nonexistent.

School speech doctrine should therefore explicitly recognize that not all student speech is entitled to the same degree of protection. Rather, courts should extend distinct degrees of protection to three different categories of student speech: (1) student speech on matters of public concern, to which a stringent version of Tinker should apply; (2) student speech that is not on matters of public concern, to which a more deferential but still meaningfully protective version of Tinker should apply; and (3) discrete and delineated categories of “low-value” student speech, to which a highly deferential standard of review should apply. Such an approach would not only lead to more intuitively sensible results, but it would also more accurately capture the complex interactions at the heart of school speech doctrine between students’ speech rights, schools’ mission to provide democratic education while instructing students as to appropriate social norms, and the practical realities of running an educational institution efficiently and effectively.