(The Lack of) Distinctions Among Students’ Educational Levels as Determinants of Student Speech Rights

• In Event: Tinkering With Student Speech: Emerging Legal Debates in P-20 Education

Abstract

Issue #1:

Objectives
The panelists examine the extent to which age and educational level (i.e., postsecondary, secondary, or elementary) have played (or not) a meaningful role in determining student First Amendment protections.

Perspectives, Methods/Modes of Inquiry, & Data Sources
Infusing both methods of social science and legal analyses, the panelists review selected judicial opinions consistent with the approach of a collective case study (Stake, 1995). With a collective case study, a site is chosen on the basis of being identified beforehand as a rich locus for possessing the attributes of a particular phenomenon. Along similar lines, cases were selected that offered dense data for analyzing distinctions made by courts on the basis of age and educational level in determining student speech rights.

For instance, in a postsecondary context, the Seventh Circuit’s decision in Hosty v. Carter provides a key decision for analysis. In Hosty, the court determined that the legal standards from Hazelwood v. Kuhlmeier, which involved a school newspaper at the secondary level, should apply to a college newspaper. Along with a careful examination of Hosty, the panelists also analyze recent litigation involving the disciplining of graduate students (e.g., Ward v. Polite) on the basis of Hazelwood - especially in relation to an academic program’s professionalism standards.

The problems with applying a workable framework is noted in cases involving P-12 students too. Several courts (see Walker-Serrano v. Leonard, 2003) have noted that First Amendment protections for elementary students may be limited. As one legal scholar posits, elementary school speech is of very little value within the marketplace of ideas when compared to student speech in high schools that should be protected (Eck, 2007).

Selected Results/Substantiated Conclusions

■ Courts use oversimplified frameworks. For instance, uncritical importation by courts of the Hazelwood and Tinker standards¬¬¬¬ to adults in the higher education setting has resulted in problematic legal decisions. These simplifications are particularly challenging for colleges, which are intended as places for the free and open exchange of ideas.

■ Further, when courts have granted greater administrative authority to more mature students, the justification largely rests on a forum analysis indicating educational “space” warrants more educational control. Yet, educational space as a locus of control is increasingly problematic with online speech (which a subsequent panel will make more explicit).

Scholarly Significance
This issue is significant because the court’s framework has significant consequences in shaping (or distorting) the educational environment. Specifically, this discussion calls into question whether the frameworks may be applied across the P20 spectrum, and this forum permits audience members to engage in a policy discussion of alternatives to the current frameworks.

Authors

• Suzanne E. Eckes, Indiana University

• Neal H. Hutchens, The Pennsylvania State University - University Park

• Jeffrey C. Sun, University of Louisville