This Note's purpose is to explore the Sixth Circuit Court's flawed understanding of a trilogy of cases (Tinker v. Des Moines Independent Community School District, Bethel School District No. 403 v. Fraser, and Hazelwood School District v. Kuhlmeier) in its evaluation of a school's restriction of student speech in Boroff v. City of Van Wert Board of Education. The court had found no justification for the school's actions in the form of substantial interference or control of its curriculum but rather found the school's actions proper simply because the student's speech was "offensive." The court's use of "offensiveness" as a justification, however, is plainly out of sorts with a reasoned understanding of the case law. If indeed the uninhibited ability of the school to sanction a student for "offensive" speech does exist, the court's use of such an exception in Boroff swallows the generally applicable rules. To fully appreciate the flaws in the Boroff opinion, one needs to closely analyze each of the three cases handed down by the Supreme Court in this area. Part II of this Note, therefore, provides a detailed account of this "trilogy." Part III then outlines the Boroff court's opinion. With this background, Part IV evaluates the reasoning of Boroff in light of the Supreme Court's trilogy of cases, identifying two key flaws in the Boroff opinion: section IV.A addresses the court's failure to engage in an evaluation of whether substantial interference or curricular control justified the school's actions, and section IV.B discusses the court's unprincipled application of its "offensive" rationale to Boroffs speech. Part V concludes with a brief summary of Part IV and this author's views as to why the First Amendment should flourish in public schools.
Anthony B. Schutz,
Public School Restrictions on "Offensive" Student Speech in Boroff v. Van Wert City Board of Education, 220 F.3d 465 (6th Cir. 2000): Has Fraser's "Exception" Swallowed Tinker's Rule?,
81 Neb. L. Rev.
Available at: http://digitalcommons.unl.edu/nlr/vol81/iss1/8