Education Law

A step towards a student welfare standard

After the new decisions that were released during  June’s big school law week, BoardBuzz has had the Supreme Court on our minds.  As a result, we were doubly interested in NSBA General Counsel Francisco Negron, Jr.’s article recently published in American University Law Review.  The article titled “A Foot in the Door? The Unwitting Move Towards a ‘New’ Student Welfare Standard in Student Speech After Morse v. Frederick” discusses an emerging legal trend that may expand schools’ abilities to protect their students. 

The article focuses on Morse v. Frederick, a 2007 decision popularly known as the “Bong Hits 4 Jesus” case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use.  Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy’s concurring opinion, permit schools to regulate student expression that may threaten student welfare.  Justices Alito and Kennedy sought to limit the majority’s holding to speech involving illegal drug use, but in doing accepted the premise that schools may limit speech that encourages dangerous conduct, Negron points out.  Ironically, some lower courts have interpreted this opinion to carve out an exception to students’ First Amendment rights, thereby expanding Morse rather than containing it.

As Negron concludes:

“…Morse appears to have unwittingly created a new standard-not yet fully expressed as such, but found amongst its fractured opinions- that is premised on the underlying notion that schools may generally regulate student speech where student welfare is at stake.”

If this trend continues, school districts will be better able to keep students safe from potentially dangerous expression.  Now that’s a decision BoardBuzz can get behind!

After the new decisions that were released during June’s school law week, BoardBuzz has had the Supreme Court on our minds. As a result, we were doubly interested to read NSBA General Counsel Francisco Negron, Jr.?s article recently published in American University Law Review. The article titled ?A Foot in the Door? The Unwitting Move Towards a ?New? Student Welfare Standard in Student Speech After Morse v. Frederick? discusses an emerging legal trend that may expand schools? abilities to protect their students.

The article focuses on Morse v. Frederick, a 2007 decision popularly known as the ?Bong Hits 4 Jesus? case in which the court held that a school principal may restrict student speech that can be reasonably viewed as promoting illegal drug use. Negron argues that when read together, the majority opinion and Justice Alito and Justice Kennedy?s concurring opinion, permit schools to regular student expression that may threaten student welfare.

Justices Alito and Kennedy sought to limit the majority?s holding to speech involving illegal drug use, but in doing accepted the premise that schools may limit speech that encourages dangerous conduct, Negron points out. Ironically, some lower courts have interpreted this concurrence as carving out an exception to students? First Amendment rights, thereby expanding Morse rather than containing it.

As Negron concludes:

??Morse appears to have unwittingly created a new standard-not yet fully expressed as such, but found amongst its fractured opinions- that is premised on the underlying notion that schools may generally regulate student speech where student welfare is at stake.?

If this trend continues, school districts will be better able to keep students safe from potentially dangerous expression. Now that?s a trend BoardBuzz can get behind!

Full post as published by BoardBuzz: NSBA's Daily Weblog on July 07, 2009 (boomark / email).