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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…