The Edjurist - Information on School and Educational Law

Couple of school related First Amendment notes to pass along.

First, the Supreme Court this week denied review of the Mayer v. Monroe County Community School Corporation Case. The Education Law and Policy Blog has more on the details of the case. I am sort of disappointed the Supreme Court denied this case. Following Garcetti v. Ceballos we really could use some more clarity on the free speech rights of teachers related to their employment. The Supreme Court passed on this opportunity, but let's hope they take another in the near future. There is sure to be plenty of cases emerging in the courts when a teacher can be fired for off-hand and everyday comments like "I honk for peace."

Second, Mitchell Rubinstein at the Adjunct Law Prof. Blog has the scoop on the E.D. of Missouri in the 8th Circuit upholding a school's ban on wearing items related to the Confederate Flag (B.W.A. v. Farmington R-7 School District). This is not the first court to hold this way, but it is significant that in the wake of Morse v. Frederick ... nothing really seems to have changed. But, perhaps something is changing. This interesting quote is how Mitchell ends the entry:

Recently, there seems to have been an increase in First Amendment
student rights litigation. A pattern seems to be emerging in the case
law, including the recent Morse v. Frederick decision, where courts are
essentially applying a balancing test-balancing the reduced First
Amendment rights of students against the need to prevent a disruption
and prevent disruption of vulgar material. This type of balancing test
is no different than in other areas of constitutional law. In fact, it
bears resemblance to the Pickering balance test in public sector First
Amendment employment cases without the public concern requirement.

I am not sure I totally agree ... yet anyway. Traditionally, the First Amendment for student speech rights concerning on-campus speech has followed a series of steps, with each step asking a slightly different question which would allow the school to regulate. If a student could survive all those steps, the speech was protected and the school could not regulate. At the end of that series of steps was the Tinker v. Des Moines disruption standard. Generally, if the speech could be considered disruptive, the school could regulate. That series of steps seems to me to still be very firmly in place.

However, I will agree with Mitchell on this point. Recent student First Amendment cases have been less explicit about how they passed through the series of steps than ones in the past have been. Recent cases, including Morse to a degree, have been simply jumping to the step in the multiple part test that is crucial to determining the outcome without providing a full explanation of how they arrived there. Typically, the author of the opinion briefly mentions the "trilogy" (now a quartet) of Supreme Court cases (even though Hazelwood and Tinker almost never apply to the same case) and then goes immediately to the issue of law he or she thinks is crucial to determining the outcome. Once a series of cases is written this way, it can quickly become a trend as Justices look to recent precedent not only for the law but also in how to write the opinion. Thus, the full scope of the student on-campus First Amendment multiple-part test is lost and it can appear to be something akin to a balancing of disruptions (that of the school and that of the First Amendment).