Demolishing the Schoolhouse Gate

Tinkering with the Constitutional Boundaries of Punishing Off-Campus Student Speech

Given the increasing ubiquity of social media, school officials’ scrutiny of student communications has expanded into the online realm. In fact, news reports reveal that many school districts have punished students for their online actions and communications. Schools argue that monitoring online speech protects students from bullying, suicidal threats, and vulgarity. Contrarily, students and activist groups allege that these monitoring activities invade students’ First Amendment free speech rights. This Note asks whether school officials can punish students for their communications that take place beyond the traditional “schoolhouse gate.” As a result of the Supreme Court’s failure to address the constitutional boundaries of off-campus student speech, the U.S. Circuit Courts of Appeals have crafted myriad, often conflicting, approaches to apply the Supreme Court’s traditional First Amendment jurisprudence to this issue. This Note discusses the Supreme Court’s precedent regarding First Amendment protections for student speech, including the landmark Tinker decision that first established students’ First Amendment protections, and examines how federal courts have tackled off-campus student speech. This Note recommends that the Supreme Court analyze almost all student speech cases under a heightened version of a two-pronged Tinker test that focuses on the speech and the intent of the speaker rather than the physical location of the speaker. This “Tinker plus” test honors the philosophical role of the freedom of speech as a prerequisite to democracy, recognizes the evolving forms of interpersonal communication, and respects practical concerns of cyberbullying and electronic harassment.

The full text of this Note is available to download as a PDF.