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Constitutional protection of student speech has been a mixed blessing. There is still something quite inspiring about the notion that young people have worthwhile thoughts to share, and that the Constitution guarantees their right to do so. At the same time, courts have struggled to figure out what limits on student expression should be permitted, and much of the litigation has involved student speech that is disappointingly mindless. The Supreme Court’s seminal ruling in Tinker v. Des Moines Independent Community School District concerned students who wore armbands to express a serious message about an important national issue. Judges and school officials understandably may struggle to keep a straight face when asked to apply the same legal standards to claims that the First Amendment entitles a student to wear a shirt expressing his interest in “Coed Naked Band” or being a “Redneck sports fan.” Treating the intellectual seriousness of a student's expression as a significant factor in the constitutional analysis would make the right to free expression stronger in those situations where student speech truly makes a valuable contribution to a school’s ultimate goal of training young thinkers. It would encourage students who want to communicate controversial messages to do the work necessary to establish that they have a sincere understanding of the issues involved and are not just eager to complain and defy school authorities. And it would simultaneously help to shift responsibility for application of student speech rights away from federal judges and toward school teachers and administrators. In all of these ways, it would ultimately solidify the constitutional protection of student speech and help to fulfill the noble promise of decisions like Tinker.

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University of Missouri Kansas City Law Review





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