Debates involving free speech on America’s college campuses have recently ignited a firestorm of disputation, dominating newspaper headlines in a fashion not witnessed in several decades. The First Amendment’s import as appearing in the nation’s elementary and secondary schools has, however, received comparatively little public scrutiny. This relative paucity of attention is lamentable, as our public school system is the foremost government entity that shapes Americans’ everyday lives.
This Essay explores three twenty-first century doctrinal developments that fuse to portend an emerging crisis for student speech. First, it examines Mahanoy Area School District v. B.L. ex rel. Levy and contends that the opinion unwisely authorizes educators to punish an especially critical form of off-campus speech. Second, the Essay demonstrates how a long-dormant aspect of Tinker v. Des Moines Independent Community School District—involving speech that “collid[es] with the rights of others”—recently awoke from its slumber and now poses a grave threat to student speech. Third, it contends that the Supreme Court’s embrace of adolescent neuroscience in the Eighth Amendment context could spell doom if imported into the student speech setting.
This Essay aims to increase awareness of the storm clouds quickly gathering on the First Amendment horizon and encourages jurists to redouble their commitment to protecting student expression. Rather than protecting unpopular statements of students, as judges have long aspired, courts today seem increasingly poised to protect students from unpopular statements.