Tinker/Fraser/Hazelwood Trilogy

1. Tinker/Fraser/Hazelwood Trilogy • Tinker– school can regulate individual student speech if it “substantially and materially interferes with (disrupts) the requirements of appropriate discipline in the operation of the school.” • Fraser– school can regulate lewd/suggestive speech at a school assembly because such offensive speech interferes with (disrupts) the school’s educational mission of inculcating certain values. • Hazelwood– school can regulate style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.

2. Hypotheticals • Student barred from distributing abortion-related literature and pregnancy statistics at Middle School because violates (1) a policy of prohibiting all handouts containing “political religious or organizational symbols” and (2) a policy prohibiting the distribution of all written literature at school. • Are the policies constitutional? • Anywhere Middle School recently banned the wearing of “I ♥ Boobies” bracelets claiming they are vulgar, disruptive or both. • Does the ban comport with the First Amendment?

3. Morse v. Frederick – the facts • Olympic relay ran through Juneau Alaska on a route by the high school. The high school released students while the relay was going by in order for them to attend it. • Frederick stood on the parade route on the street across from the high school and unfurled a banner that said “BONG HiTS 4 JESUS.” The banner was designed to get media attention. • The school principal (“Morse”) saw and took the banner from Frederick, interpreting it as encouraging illegal drug use. Morse suspended Frederick for violating school policy, which prohibits “any assembly or public expression that . . . advocates the use of substances that are illegal to minors.” • SCT upheld suspension. Claimed Hazelwood didn’t apply because the banner didn’t bear the school’s imprimatur. But relied on that case and Fraser to carve out a new reason to find speech unprotected.

4. Morse v. Frederick – the decision • School officials may restrict student speech at a student event that is reasonably viewed as promoting illegal drug use (p. 664) • SCT notes that banner was cryptic but principal’s interpretation was reasonable – Problems with this approach? • SCT claims that speech advocating legalization might have been treated differently because it is political • What if it were a hybrid of promoting illegal and political speech - Bong Hits for Legalization? • To what extent can SCT justify carving out an exception for drug-promoting speech? Is this just ad hoc? Can we distinguish it from speech that promotes pre-marital sex? Is this the beginning of numerous exceptions to Tinker?

5. Can speech that doesn’t occur at school “disrupt” school so that officials can punish it? • Morse found that student speech occurred during a school event and, thus, it was a “school speech” case. • This was controversial as Frederick did not attend school that day, was not standing on school grounds but on a public sidewalk, and the parade was not a school event. Rather, the school dismissed students (with supervision) to attend. However, Frederick was at the parade with friends from class in an area near the school and appeared to have skipped school to avoid punishment. • Other cases involve similar issues – Can schools punish students whose speech did not occur on (1) school grounds, (2) at a school event, or (3) through the use of school property (e.g., computers) because such speech might allegedly disrupt the school environment? • Courts are inconsistent and SCT has never resolved the issue.

6. Off-campus speech hypos • Bart, high school senior, used his grandfather’s computer to create a mocking, derisive and clearly offensive MySpace profile of his school principle. Many students at school saw the profile. Some accessed it during school hours. He is given notice of suspension of the school Discipline Code for harassment, disrespect, disruption, vulgar language and use of his principal’s picture without authorization. • Linda, high school senior, created a MySpace discussion group cruelly mocking another student, Susan, and claiming she had Herpes. She invited other high school students to join this group. Buzz posted pictures mocking her as well while at school. Other students laughed and made comments. Susan found out and complained to the school who suspended Linda & Buzz for violating a policy prohibiting bullying during any school-related activity or any educationally-sponsored event.