A Post-Morse Framework for Students' Potentially Hurtful Speech (Religious and Otherwise)

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					A Post-Morse Framework for Students' Potenti
				
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Description: Frederick, who had sued his principal after being suspended for waving a banner stating "Bong Hits 4 Jesus" at an Olympic torch rally that he attended with class- mates during school hours, had on his side not only the usual suspects, such as the Students Press Law Center2 and the National Coalition Against Censorship.3 Also supporting him were six conservatively-oriented reli- gious advocacy groups:4 the American Center for Law and Justice (ACU);5 the Christian Legal Society;6 me Alliance Defense Fund;7 the Liberty Legal Institute;8 Liberty Counsel,9 and me Rutherford Institute.10 Morse thus became one of the rare cares uniting me ACLU with me ACLJ.11 As these religious groups made clear in their briefs, they felt no particular affinity with Frederick's banner, which he himself described as containing mere "nonsense" words designed to attract television cameras. The Harper majority believed that it did and rested its holding on mat ground.26 But the Harper dissent agreed with several other courts' interpretation of that language as referring only to those situations where the speech itself amounts to a tort or crime, such as defamation or blackmail.27 (Indeed, Harper has been recognized as the first case to base its holding on Tinker's invasion of rights justification as opposed to its material disruption justification, which has long been the dominant prong.28) Fraser, decided by the Supreme Court in 1986, provides even cloudier guidance.\n184 It read Morse, as I do, as suggesting that if there is reason to think that a particular type of student speech that will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school - symptoms therefore of substantial disruption - the school can forbid the speech.
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