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Abstract

The Article begins in Part I by describing these three student speech cases and then examining what makes them a distinct category within the larger student speech landscape. As I discuss, the student speech framework was largely developed by the Supreme Court in the K-12 public school context. Conflicts over student speech in universities, in turn, have generally centered on the extent to which the K-12 framework should carry over to the higher education context, given the greater independence and maturity of university students. Recent cases about universities' ability to control student publications, for example, fall into this mold, with courts evaluating whether the same rules for high school newspapers should apply to college newspapers. This particular subset of university speech cases, however, introduces an additional consideration that is simply inapplicable in the K-12 context (and often in the university context as well, depending on the specific student speech dispute): the certification role that these professional-training programs are playing. Officially or unofficially, universities here-to the extent that they allow the students in their professional-training programs to complete the program and graduate-are signing off on their students' fitness to enter the profession in question. Although the students are not yet employees and their universities are not their employers, they are closer to this relationship than in the standard student speech case. The remainder of this Article argues that this certification dynamic has three important First Amendment implications, all pointing toward significant, but not unlimited, deference to universities here. First, as I discuss in Part II, this dynamic makes particularly relevant Hazelwood's emphasis on giving schools broad reign to control student speech that may reasonably be seen as bearing the schools' own imprimatur. Although some aspects of Hazelwood's reasoning are less relevant in the university setting, this specific theme has new and important resonance here. Second, and more broadly, Part III situates these conflicts within the larger discussion about the appropriate level of judicial deference to universities, and argues that they are prime candidates for a very high level of deference, given the reasons articulated by courts and scholars for whether and when such deference should exist. Finally, Part IV probes the analogy between students in professional-training programs and public employees. The analogy is useful, but only goes so far, and thus simultaneously bolsters the argument for substantial deference and helps point toward where the limits on such deference should lie. Part V pulls together the Hazelwood, university deference, and public employment strands in connection with the certification cases, offering some guiding principles for a more unified framework. Finally, Part VI provides a brief conclusion.

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