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Volume 76, Symposium Issue


Symposium 2024 - Speech at Twenty-First Century Schools and Universities

The Underlying Issues Concerning Free Speech in Schools

by  Erwin Chemerinsky

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

The Surveilled Student

by  Danielle Keats Citron

We live in an age of student surveillance. Once student surveillance just involved on-campus video cameras, school resource officers, and tip lines, but now, it extends beyond school hours and premises. Corporate monitoring software, installed on school-provided laptops, does two things. First, it blocks “objectionable” material, informing administrators about content that students tried to access.…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

The Government Speech Doctrine Ate My Class

First Amendment Capture and Curriculum Bans
by  Caroline Mala Corbin

Because of the government speech doctrine, public school curriculum restrictions like “Don’t Say Gay” mandates and bans on teaching critical race theory may escape free speech review. This exemplifies “First Amendment capture.” The term “capture” comes from “agency capture,” which occurs when regulated entities effectively gain control over the agency meant to oversee them. First…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

The Coming Crisis of Student Speech

by  Justin Driver

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…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Academic Freedom and Discipline

The Case of the Arguably Peaceful Protestors
by  Jacob E. Gersen & Jeannie Suk Gersen

Soon after Hamas’s attacks on Israel on October 7, 2023, and Israel’s military response in Gaza, a global spotlight focused on university members’ and leaders’ conduct and statements regarding those events. Intense debate ensued about what academic freedom means when university members’ political protest and speech are alleged to constitute forms of discrimination, harassment, and…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Integrating the Marketplace of Ideas

A New Constitutional Theory for Protecting Students’ Off-Campus Online Speech
by  Laura McNeal

The recent Supreme Court decision in Mahanoy Area School District v. B.L. ex rel. Levy expanded the authority of school leaders to censor student off-campus online speech under certain circumstances. However, the Court failed to articulate the contexts in which censorship is constitutionally permissible. The absence of a clear constitutional standard leaves school leaders with…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Law Schools, Professionalism, and the First Amendment

by  Mary-Rose Papandrea

After students at Stanford Law School disrupted a Federalist Society event featuring Judge Kyle Duncan in March 2023, then-Dean Jenny Martinez issued a lengthy statement recognizing that “offensive, vulgar, or provocative” expression at campus events is “perhaps constitutionally protected” but argued “it is within our educational mandate to address with students the norms of the…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Theorizing Student Expression

A Constitutional Account of Student Free Speech Rights
by  Robert Post

Courts and commentators write as if the speech of K-12 students were endowed with full First Amendment protection, save in narrow circumstances when it is reasonably foreseeable that the speech will cause substantially disruption or materially interfere with the rights of others, when it is vulgar or lewd, when it involves school sponsored communication, or…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Are “Book Bans” Unconstitutional?

Reflections on Public School Libraries and the Limits of Law
by  Catherine J. Ross

Since 2021, the number of demands that public school libraries remove materials from their shelves based on content has accelerated almost too quickly to track. Book removal incidents are more prevalent today than at any time since data became available, doubling between 2021 and 2022. Such “book bans” (as opponents characterize them) or “targeted book…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

The Establishment of Religion in Schools

by  Alexander Tsesis

Recent Supreme Court opinions have upended laws that prohibited state support for and participation in devotional exercises, sectarian activities, and religious education. The Essay reviews a variety of historical antecedents that the Court formerly found highly persuasive to Establishment Clause jurisprudence. It next evaluates and critiques the Roberts Court’s steady devaluation and erosion of disestablishment…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Reconsidering the First Amendment Fetishism of Non-State Actors

The Case of Hate Speech on Social Media Platforms and at Private Universities
by  Kenji Yoshino

Recent statements by university presidents suggest a heavy reliance by private universities on the Supreme Court’s First Amendment jurisprudence to resolve campus speech controversies. That reliance is facially puzzling, as most private universities are not bound by that jurisprudence. This Essay hypothesizes that private universities may be choosing to follow First Amendment case law because…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Expressive Association Claims for Private Universities

by  Taylor J. Barker

The Constitution protects private rights from state interference. Certain statutes purport to protect individuals’ rights from interference by private actors as well. Two examples are the Leonard Law, a California law that prohibits private universities from disciplining students for speech protected against state interference by the First Amendment, and Title VI, which conditions universities’ federal…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Defending the Public Quad

Doxxing, Campus Speech Policies, and the First Amendment
by  David Cremins

This Essay explores how universities bound by the First Amendment can constitutionally proscribe doxxing—the malicious publication of personally identifying information. As campus controversies have fueled targeted harassment campaigns against students, staff, and faculty, responses from university administrators have been limited. To defend members of their educational community from threats to their safety, well-being, and reputation,…

Symposium 2024 - Speech at Twenty-First Century Schools and Universities

Bias Response Teams

Designing for Free Speech and Conflict Resolution on the University Campus
by  Carson Smith

University administrations have created Bias Response Teams (BRTs) as a means to navigate student-to-student campus disputes. BRTs both collect data on reported student conflicts as well as offer students conflict resolution, educational, and other university resources to manage their disputes. Yet these BRTs have been under siege in the courts, often challenged on the grounds…