Hate Speech in the Schools: A Potential Change in Direction

The law regarding free expression and students in the public schools has long been somewhat confused. An early Supreme Court vindication of student speech rights has eroded over the years. Yet, it is perhaps unclear how great the erosion has been and how much of the original recognition still stands. This has left the lower courts rather unwilling to protect school students from hate speech, at least in cases where there has not been a history of such speech leading to disruption or even violence. Only recently has there been some sign of change in that regard, with a few courts coming to recognize that the Supreme Court cases allow restrictions on student use of racist, sexist, or homophobic invective toward other students, even when such disruption and violence are lacking. This article will argue that those recent court decisions are justified under Supreme Court precedent. The article begins, in Part I, with a discussion of the Supreme Court’s treatment of school speech. The school hate speech cases in the lower courts are then considered in Part II. That treatment splits the cases into two eras, the first running from the Supreme Court’s recognition of free expression rights in the schools to the first significant erosion, and the second from that erosive case to the present. In each era, the lessons drawn by the lower courts regarding hate speech are presented but are followed with the lessons it is suggested could have been drawn that would have been more protective of the targets of hate speech. Part III looks at the more recent decisions protecting students from hate speech and argues that these cases are correctly decided. Lastly, Part IV looks to the most recent Supreme Court pronouncement on student speech to argue that the lessons suggested from the earlier cases are still valid