Academic journal article Texas Journal on Civil Liberties & Civil Rights

Learning on Razor's Edge: Re-Examining the Constitutionality of School District Policies Restricting Educationally Disruptive Student Speech

Academic journal article Texas Journal on Civil Liberties & Civil Rights

Learning on Razor's Edge: Re-Examining the Constitutionality of School District Policies Restricting Educationally Disruptive Student Speech

Article excerpt

I. INTRODUCTION

In Davis v. Monroe County Board of Education, the Supreme Court dramatically altered the landscape of public education by granting students a private right of action against their school for student-onstudent sexual harassment under Title IX. ' Pursuant to Davis, a student may bring a "hostile environment" harassment claim under Title LX if the "sexual harassment ... is so severe, pervasive, and objectively offensive" so as to "detractf] from the victims' educational experience."2 Although Davis does not mandate that a school district adopt and enforce an anti-harassment policy to avoid liability, the specter of Davis liability led many school districts to adopt and implement vigorous and restrictive anti-harassment policies.3 In the decade following Davis, federal courts have addressed multiple facial challenges to anti-harassment policies drafted in the shadow of Davis.4

Responding to this national controversy, courts have developed competing approaches to "the very real tension between anti-harassment laws and the Constitution's guarantee of freedom of speech."5 Applying conventional First Amendment jurisprudence, some courts have struck down such anti-harassment policies as "unconstitutionally overbroad."6 Conversely, other courts have determined substantively identical policies7 to be constitutional under controlling First Amendment precedent.8 In operation, this harsh climate of legal uncertainty places school authorities on a "razor's edge" when drafting student conduct policies in conformity with student speech jurisprudence.9 Where a school adopts and enforces an anti-harassment policy prohibiting psychologically harmful student speech, the school is subject to a possible First Amendment challenge. However, where a school fails to adopt and enforce a policy prohibiting "disparaging comment[s] directed at an individual's sex, race, or some other personal characteristic,"10 the school lays the foundation for a potential student-on-student harassment claim under Title IX.11 Due to Davis's "severe, pervasive, and objectively offensive" requirement, isolated instances of psychologically harmful student speech often fail to constitute a hostile environment.12 Because "[t]here is no categorical 'harassment exception' to the First Amendment's free speech clause,"13 such isolated instances of psychologically harmful student speech must be restricted in accordance with established student-speech jurisprudence. Accordingly, public school officials must tread carefully when confronting psychologically harmful student speech.

This Note posits a standard supporting a school's ability to limit psychologically harmful student speech within the framework of existing First Amendment jurisprudence. Although the Supreme Court has yet to address the constitutionality of restricting psychologically harmful student speech in public schools, Tinker v. Des Moines Independent Community Schools1* is generally accepted as the default standard for student free speech rights.15 Under Tinker, a school may restrict student speech only where that speech "substantially interfere[s] with the work of the school or impinge[s] upon the rights of other students."16 Evaluating the effects of psychologically harmful student speech on students and administrators, this Note ultimately argues for a broad construction of Tinker's "substantial disruption" standard, permitting schools to implement viewpoint-neutral regulations on psychologically harmful student speech. 17

Part II examines and discusses the effects of psychologically harmful student speech on students, administrators, and school districts. Part III examines the Supreme Court's First Amendment jurisprudence in the context of public education. Part IV analyzes the various approaches employed by lower courts regarding psychologically harmful student speech. Specifically, Part IV discusses the impact of Morse v. Frederick1* on extensions of Tinker and its progeny at the circuit level. …

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