Note and Comment: After Morse v. Frederick: The United States Court of Appeals for the Fifth Circuit Takes Another Step Toward Abrogating the Tinker Standard for Student Speech By Permitting Restrictions on Speech Which Poses a "Special Danger" to the School Environment Skip over navigation
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Copyright (c) 2008 Baylor Law Review
Baylor Law Review

Note and Comment: After Morse v. Frederick: The United States Court of Appeals for the Fifth Circuit Takes Another Step Toward Abrogating the Tinker Standard for Student Speech By Permitting Restrictions on Speech Which Poses a "Special Danger" to the School Environment

Fall, 2008

BAYLOR LAW REVIEW

60 Baylor L. Rev. 1046

Author

Richard Howell*

Excerpt



I. Introduction
 
Schools are among the most important social institutions in our country to parents, educators, employers, and the students who are required by law to attend them. 1 One measure of the longstanding import of education is the high level of state spending on education. 2 The priority given to education by the federal government and federal spending to support elementary, secondary, and postsecondary education has grown dramatically over the past three decades. 3, 4 While the right to free speech under the First Amendment to the United States Constitution has repeatedly been characterized as a fundamental liberty 5 safeguarded from invasion by state action, 6 the application of that right to school children has been the subject of much debate.

While at common law schoolmasters exercised parental rights to discipline student speech, the United States Supreme Court abolished the doctrine of in loco parentis during the late twentieth century. 7 In the Tinker series of cases, the Court articulated a more liberal standard, allowing students full constitutional speech liberties except where that speech materially and substantially disrupted school activities or the school's pedagogical environment. 8 During the past twenty-two years, the Court has limited the application of the protective Tinker standard.

Last year, the Supreme Court again chose not to apply the Tinker standard when faced with a student speech controversy. In Morse v. Frederick, the Court held that the high school principal, Morse, did not violate the student's speech rights by confiscating a banner ...
 
 
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