Morse V. Frederick: Tinkering with School Speech: Can Five Years of Inconsistent Interpretation Yield a Hybrid Content-Effects-Based Approach to School Speech as a Tool for the Prevention of School Violence?
Schoedel, Ronald C., Brigham Young University Law Review
Ever since free public education became a core part of the American childhood experience, courts have been faced with the reality that educating children involves so much more than matters of curriculum. Because a large portion of a child's time is spent at school, schools have become full-fledged societies unto themselves. By fostering multifaceted relationships and by joining many unique cultures and values, the school microcosm provides a particularly apt host to most of the difficulties inherent in any broader society. Among these difficulties is how to handle student speech that may be less than desirable, antisocial in nature, or outright violent in content.
During the past five years, several dozen school shootings have occurred in the United States, many with fatalities.1 In response, school administrators have wrestled with an increasing number of school speech incidents centering on violent-themed student expression, appearing in writings, drawings, and clothing. In 2007, the Supreme Court held in Morse v. Frederick that schools may constitutionally regulate student speech deemed to promote use of illegal drugs. The holding was originally thought to be quite narrow in its scope, but lower courts have recognized the severe danger of continued school violence and have seized upon Morse - transforming its holding into a sweeping permission slip that allows school administrators to regulate student speech simply because it may indicate students' violent intentions or even negative feelings toward certain people.3
School discipline has become a significant topic of national interest in recent years, attracting the attention of federal public health officials. Studies presented by the Centers for Disease Control and Prevention, for example, show that students, parents, administrators, and elected officials share a common concern over school violence.4 That concern has resulted in the emergence of numerous school-violence-prevention organizations, committees, and programs nationwide. Alexander Volokh and Lisa Snell note that the primary disciplinary issues in public schools in 1940 included talking out of turn, chewing gum, cutting in line, running in the hall, making noise, dressing inappropriately, and littering.5 In 1990, by contrast, researchers found that those seemingly quaint problems of yesteryear had yielded to drug and alcohol abuse, suicide, teen pregnancy, rape, robbery, and assault.6
Various policies have been developed by school districts to reduce violence-related issues in school. Some of these policies have been directed toward various forms of student expression. One of the most well-known examples is the recent emergence of restrictive dress codes. Though they certainly stifle student expression by limiting messages worn as part of one's clothing, these dress codes have had only an arguable impact on decreasing violence.7
The recent school shooting in Chardon, Ohio,8 with multiple fatalities, has provided a sadly tangible reminder that the legacy of Columbine is not ancient history, but rather a current danger to students throughout the country. It is against this backdrop of violent acts that courts have had to consider the application of First Amendment rights to student speech or expression.
Five years ago, the Supreme Court issued its opinion in the most recent landmark case related to school speech, Morse v. Frederick? Morse carved out a new content-based category of speech that can be constitutionally regulated by school administrators. The Court held that schools may regulate speech that can be reasonably interpreted as promoting illegal drug use.10 This opinion, however, was qualified by a concurrence by two Justices - one of whom was the deciding vote - which purports to limit the holding to apply only to speech that occurs at school and that can be reasonably interpreted as promoting illegal drug use. The concurrence also asserted that speech related to political or social issues, including the war on drugs, cannot be constitutionally restricted. …