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University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman
University Imprimaturs On Student Speech: The Certification Cases, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article begins in Part I by describing these three student speech cases and then examining what makes them a distinct category within the larger student speech landscape. As I discuss, the student speech framework was largely developed by the Supreme Court in the K-12 public school context. Conflicts over student speech in universities, in turn, have generally centered on the extent to which the K-12 framework should carry over to the higher education context, given the greater independence and maturity of university students. Recent cases about universities' ability to control student publications, for example, fall into this mold, with …
No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman
No Jokes About Dope: Morse V. Frederick's Educational Rationale, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
This piece begins with a “protective” reading of Morse v. Frederick, showing how this rationale provides a good starting point in understanding Morse but is ultimately incomplete. Indeed, Justice Stevens’ dissent is largely an argument that the protective rationale falls short here. I then re-examine Morse from the perspective of the educational rationale and conclude that the underlying, largely unstated premise of the Morse majority is that schools—as part of teaching students about the gravity of drug use—should be able to convey disapproval of messages suggesting that drug use is a joking or trivial matter. This helps to explain why …
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman
Badmouthing Authority: Hostile Speech About School Officials And The Limits Of School Restrictions, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article's first two parts discuss the extent to which schools can legally restrict hostile student speech about school officials, should they choose to do so. Part I examines how courts have traditionally approached hostile student speech about school officials when it occurs at school, and Part II then considers how courts have been analyzing the issue when it moves off campus. In the course of this discussion, the Article identifies three key categories of such speech: (1) speech that arguably threatens toward a school official; (2) speech that is primarily vulgar about a school official; and (3) the most …
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Regulating Student Speech: Suppression Versus Punishment, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
This article examines the Supreme Court’s student speech framework and argues that, in focusing exclusively on the types of student speech that can be restricted, the framework fails to build in any differentiation as to how such speech can be restricted. This is true even though there are two very distinct types of speech restrictions in schools: suppression of the speech itself; and after-the-fact punishment of the student speaker. As the student speech landscape itself gets more complex – given schools’ experimentation with new disciplinary regimes along with the tremendous rise in student cyber-speech – the blurring of that distinction …
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Returning To Hazelwood's Core: A New Approach To Restrictions On School-Sponsored Speech, Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
The Article begins by discussing the Hazelwood decision in depth. It then discusses the various contexts in which courts have applied Hazelwood and the circuit split that has developed over how broadly Hazelwood should reach. Next, it describes the circuit split over whether Hazelwood permits viewpoint-based speech restrictions, highlighting the different speech contexts in which the circuits have reached divergent conclusions. The Article then argues that the overextension of Hazelwood links the two splits. This Part also discusses why Hazelwood is uniquely suited to the student speech context and why other doctrines-namely, the Pickering-Connick framework for teachers' classroom speech and …
A Post-Morse Framework For Students' Potentially Hurtful Speech (Religious And Otherwise), Emily Gold Waldman
A Post-Morse Framework For Students' Potentially Hurtful Speech (Religious And Otherwise), Emily Gold Waldman
Elisabeth Haub School of Law Faculty Publications
In this Article, I weave together strands from Tinker, Fraser, and Morse, as well as from lower court decisions taking varying approaches to this issue, to propose a new standard for student speech that is potentially hurtful to other students. This approach encompasses, without being limited to, speech that is religiously-motivated in nature. I argue that student speech that is hurtful to other students (whether religiously-motivated or not) should first be divided into two categories: (1) speech that identifies particular students for attack; and (2) speech, such as the message on Harper's T-shirt, that expresses a general opinion without being …