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 directed at particularly named (or otherwise identified) students. Schools should receive great latitude to restrict the first category of speech, which essentially amounts to verbal bullying. By contrast, potentially hurtful speech that does not single out specific students and simply expresses a general viewpoint should be restricted only if it is likely to materially disrupt at least one other student's education (which I define as tangibly interfering with his ability to learn and succeed at school). The Article begins by looking at the case law that emerged on this issue between 2001 -- which ushered in a new era of these sorts of cases -- and the Morse decision. In this section, I situate the rise of these cases in the larger context of disputes involving religious speech in the schools and explore what makes this particular category of cases distinct. I then turn to the Supreme Court's June 2007 Morse decision, teasing out its implications for student speech, religious or otherwise, that is potentially hurtful to other students. In the Article's third and final section, I articulate in more detail my proposed standard and explain why it strikes the appropriate balance among the competing interests recognized in the case law.
Emily Gold Waldman, A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise), 37 J.L. & Educ. 463 (2008), http://digitalcommons.pace.edu/lawfaculty/556/.