Is There a Trend Toward More Repressive School Speech Regulation?
The Fifth Circuit saw a trend in the four cases described above: After Tinker, the court wrote, “every Supreme Court decision looking at student speech has expanded the kinds of speech schools can regulate.” This comment suggests that expansion is the trend, and foreshadows the Fifth Circuit’s ultimate decision to hold against Palmer. But is the expansion of school authority and the corresponding diminution of students’ speech rights — really the trend the Supreme Court is following? Not necessarily, I will argue. And if that is the trend, it surely should be broken. Importantly, Tinker and two of the three post-Tinker cases are in line with the governing law in other areas of Supreme Court First Amendment doctrine: Each case borrows a principle applicable to adults and then waters it down, allowing more incursion on the rights of young students than would be permitted if they were adults. These cases, then, do not, in my view, provide precedents to broadly justify further incursions
