Proceduralize Student Speech
abstract. This Note proposes an important new dimension for student-speech jurisprudence: procedure. Current doctrine focuses on sorting the speech itself into categories, largely ignoring the school’s response. But empirical evidence shows that how a school regulates speech determines whether students learn the lessons that schools intend or simply turn against authority they perceive as unfair. Courts have often allowed schools to restrict speech on the assumption that doing so teaches students useful lessons, but without looking at how restrictions are implemented, it is impossible to know whether this assumption holds. This Note therefore develops a framework for judicial scrutiny of the disciplinary process in student-speech cases.
author. Yale Law School, J.D. 2023. Special thanks to Tom Tyler for supervising this project, and to Justin Driver for shaping the development and execution of the argument. I am also deeply grateful to Robert C. Post, Daniel Farber, Rubin Danberg Biggs, and the students in Professor Tyler’s Legitimacy seminar for their valuable feedback. Benjamin Della Rocca and the editorial board of the Yale Law Journal provided insightful suggestions and tireless editing, both of which were greatly appreciated. This Note is dedicated to Lynn Levinson—if all teachers were like her, it wouldn’t be necessary.
In the recent student-expression case Mahanoy Area School District v. B. L. ex rel. Levy,1 a high-school cheerleader, B.L., sent a Snapchat to her friends reading “Fuck school fuck softball fuck cheer fuck everything.”2 When classmates turned the snap over to school authorities, B.L. was suspended from the cheerleading team for a year.3 In reviewing B.L.’s case, the Supreme Court agreed to resolve a question that had caused a years long circuit split: when does the First Amendment prevent schools from punishing off-campus student speech?4 Since Tinker v. Des Moines Independent Community School District,5 on-campus-speech cases have most commonly turned on the distinction between disruptive (punishable) and nondisruptive (not punishable) speech,6 with later exceptions also allowing schools to punish or censor speech categorized as “lewd,”7 prodrug,8 or school-sponsored.9 But courts were already struggling to apply these categories to on-campus speech,10 and attempts to apply them to off-campus speech multiplied the doctrinal challenges.11
Rather than doubling down on these categorical brightlines, the Court’s opinion in B. L. acknowledged that traditional student-speech categories are too blunt a tool to address a complex and sensitive issue fully.12 Eight Justices agreed that the First Amendment prevented the school from disciplining B.L.’s speech, but the Court explicitly refused to state a “broad, highly general First Amendment rule” for why this was so.13 Instead, it invited courts presiding over off-campus-speech cases to balance a number of relevant factors—including the extent to which the school stands in loco parentis, the burden on students’ ability to express core First Amendment views, and the school’s interest in protecting unpopular student expression.14 The Court did not eschew the traditional exercise of classifying speech as “disruptive” or “lewd,”15 but it acknowledged that other considerations must supplement these simplistic labels—at least in cases of off-campus speech.16
But the bluntness of student-speech categories is not only a problem when speech occurs off campus. The failure to look beyond formalistic categories also lies at the heart of a major, largely unexamined issue with on-campus-speech jurisprudence: the striking fact that it consistently supports bad pedagogy. A focus solely on the content of speech—rather than on other relevant factors about speech restrictions—leads courts to uphold speech discipline that is often actively counterproductive, creating a visible backfire effect in student-speech cases.
For example, in the 1986 case Bethel School District No. 403 v. Fraser,17 Matthew Fraser’s school suspended him for two days and removed him from a list of graduation speakers due to a sexually suggestive speech he made at a school assembly.18 The Supreme Court upheld this punishment, reasoning that schools must be able to punish lewd speech in order to teach students “the habits and manners of civility.”19 But the students at Bethel High, it seems, did not learn their lesson. Fraser was still elected graduation speaker as a write-in, students protested his punishment with signs reading “Stand Firm, Matt,” and the school newspaper voiced strong support for him.20 Rather than teaching civility, the punishment seems to have turned students against it.
Fraser is far from the only student-expression case in which students failed to learn authorities’ intended lesson. In Doninger v. Niehoff, a student who was forbidden from running for student government due to “disruptive” and disparaging comments about administrators received a plurality of votes as a write-in candidate.21 The student in Hazelwood School District v. Kuhlmeier,22 whose school-newspaper article was censored in a supposed attempt to teach responsible journalism, stated in 2010 that “she ‘wouldn’t change a thing’ about her actions.”23 Joseph Frederick, who was punished for his “BONG HiTS 4 JESUS” banner in an effort to deter drug use,24 received a standing ovation when he returned to his high school several years later.25
The pattern in these cases is that courts allow schools to punish a certain category of speech in order to teach a certain lesson. Schools then punish that speech, with courts’ approval—but students do not learn the lesson. This backfire effect happens frequently, yet courts continue to ask only whether speech fits into a punishable category—not whether punishing it will work. In other words, theyassume, contrary to experience, that punishing that category of speech will necessarily teach the intended lesson. Current jurisprudence implicitly assumes that punishing disruption leads to order, punishing lewd speech leads to civility, and punishing prodrug speech leads to antidrug values—even under circumstances where that assumption is highly implausible.26
Perhaps judges believe that whether speech discipline will succeed or fail is unpredictable—or at least beyond the judiciary’s capability to predict. But that belief would be false. Empirical research on school discipline provides a clear answer to what makes speech restrictions work, and the answer is one that courts are well equipped to handle: fair and respectful process. When students perceive discipline as fair and respectful, they internalize rules as legitimate guides for conduct.27 But when students perceive discipline to be ad hoc, discriminatory, or disrespectful, it backfires, teaching students only to turn against authority.28
This Note therefore proposes a new dimension for student-speech jurisprudence: procedure. Student-speech jurisprudence abounds with claims that punishing speech teaches students lessons such as civility29 and positive citizenship.30 Courts let schools bypass First Amendment protections precisely to teach these lessons.31 But far too often, those lessons are not learned—meaning that speech suppression is, in fact, not justified. Attending to how schools punish speech would help courts ensure that student-speech restrictions do not merely pay lip service to educational ends, but actually achieve them.
The mismatch between means and ends here is not merely a formalistic issue. Courts often extol education as the “foundation of good citizenship,”32 understanding schooling not as an end in itself, but as part of the development of adults who will contribute to their community and country.33 While the exact definition of “good citizenship” is up for debate, it certainly excludes fighting, criminal conduct, and alienation from civic life—all of which are more common among students subject to strict but unfair discipline.34 There is a contradiction, then, when courts inject lofty education goals into their student-speech jurisprudence while ignoring the factor—process—associated most clearly with education and citizenship. Aligning student-speech jurisprudence with education’s broader social goals requires attention to the disciplinary process.
By focusing on how schools punish speech, this Note fills a major gap in the literature. While many scholars have attempted to bring coherence to the question of what speech may be punished,35 few have looked any further.36 Commentators on the “school” side of the student-speech debate generally suggest that punishment teaches important lessons, even if schools occasionally overreach.37 The solution, therefore, is to allow more punishments, or at least to maintain the status quo.38 Commentators on the “student” side worry that schools, if left unchecked, will employ punishment dictatorially, communicating to students that they have no rights.39 The solution is therefore to allow fewer punishments.40 But focusing alternatively on procedure reveals a different solution—focusing not on the amount of punishment, but on whether it is, in fact, effective or dictatorial. This approach respects the concerns of both sides of the student-speech debate.
One reason few commentators have moved past the categorical
framework may be their reluctance to increase judicial involvement with the
specifics of school
discipline.41 On that note, it is important to recognize that every procedural reform suggested below can be implemented by schools without judicial or legislative interference—indeed, that outcome would be preferable. Judicial supervision of speech-discipline procedures should not be the norm, but rather a prod for recalcitrant schools to implement reforms.42
The rest of this Note proceeds as follows. In Part I, I review the Supreme Court’s student-expression jurisprudence. In doing so, I seek to show that, to date, most jurisprudence has focused on categorizing speech into punishable or unpunishable categories, rather than considering the effectiveness of punishment. In a notable exception, West Virginia State Board of Education v. Barnette,43 one of the Court’s first student-expression cases, recognized that punishing speech does not necessarily achieve educational goals.44 But courts have forgotten this insight over time, developing a modern jurisprudence that fails to examine the effectiveness of restrictions.
In Part II, I explain why the failure to evaluate the effectiveness of restrictions is problematic. Undergirding my critique is a significant body of empirical research demonstrating that different types of discipline have different effects on students. While discipline perceived as unfair or coercive can produce compliance in the moment, only discipline perceived as legitimate causes students to internalize intended values. Courts cannot simply assume, therefore, that all disciplinary processes work. Haphazard or unfair discipline can protect the classroom from disruptions, but only fair and respectful discipline can inculcate the school’s intended lessons. In fact, unfair discipline turns students against authority, which hinders citizenship development even beyond the classroom.45 The implications for schools, and for courts, are clear. The disciplinary process matters for regulating student speech.
Part III describes what a procedural focus in student-expression jurisprudence would look like in practice. I propose that, after judges determine the school’s interest in disciplining speech, they ask whether its disciplinary process aligns with that interest. Some judicial deference is appropriate for educators’ everyday disciplinary decisions. However, I recommend stronger judicial scrutiny over disciplinary processes for two categories of speech: (1) nondisruptive speech, and (2) sensitive political, religious, or other core First Amendment speech. I suggest that, as a rule of thumb, disciplinary processes for these types of speech should involve a full-warning rule, which would provide for student-authority dialogue and grant the student the chance to change their behavior before enforcement. I close by applying this approach to several prominent student-expression cases.