An Imminent Substantial Disruption: Towards a Uniform Standard for Balancing the Rights of Students to Speak and the Rights of Administrators to Discipline.

Abstract

Twenty-five years before Tinker v. Des Moines, the Supreme Court cautioned against giving too much discretion to school boards. In Tinker, when students wore armbands to protest the Vietnam War, the Court determined that student speech may not be censored when the record demonstrates no facts which could reasonably have predicted a “substantial disruption...or material interference” with school activities. Over the last four decades, however, the Court has returned to school boards the power to invade the sphere of intellect and spirit in public schools. Supreme Court and other opinions have restricted students’ rights by making exceptions to Tinker, deferring to school boards on “reasonableness”, and deciding cases on the speech’s content. The results fail to provide uniform standards to decide new cases and students are subject to personal opinions of the school boards. This Article argues that Tinker should be applied with less deference to administrators. The “reasonable forecast” test must be defined, so that administrators craft school policies within guidelines, and students know their rights. This Article argues that several terms need definition. The “reasonably forecast to cause a substantial disruption” language should be defined that only speech that meets the “incitement to imminent disruption” of legitimate state interests may be restricted. Administrators must justify restricting student speech in order to protect the “work and discipline of the school” that is a legitimate state interest. Rather than a separate test by which to measure speech to captive audiences inside the school building, the “lewd, vulgar, and plainly offensive” test in Bethel School District v. Fraser should be considered as part of Tinker’s “work and discipline” test. School administrators may then, without engaging in viewpoint discrimination, inculcate manners and habits of civility in the public schools, while maintaining the classroom as “the ‘marketplace of ideas.”