Jaelyn R.M. Haile (Regent University, School of Law) has posted Unshackling Student Speech: How To Retain Deference To K-12 Administrators Without Wrongly Suppressing Free Speech As "Harassment" Under Title IX (Journal of Global Justice and Public Policy, Volume 10, Pp. 128-268 (2024)) on SSRN. Here is the abstract:
Are K-12 students in danger of becoming mindless minions for social propaganda? Unless schools foster freedom to differ over fear of causing offense, students may stop speaking against the politically correct norm for the rest of their lives. K-12 students have been particularly vulnerable to unchecked free speech violations ever since the U.S. Supreme Court adopted the deference model in the 1980s, which broadly defers to school officials' disciplinary decisions, including decisions affecting student speech. While subsidiarity, in loco parentis, and the realities of K-12 student development all support the deference model, undue deference subverts the remedy judicial review intends to offer all citizens, including young students. First, this Note defines the deference model and explains why the judiciary has applied it in student speech cases. Second, this Note illustrates how undue judicial deference allows school officials to unconstitutionally suppress student speech, tracing their misapplications of Title IX's sexual harassment standard and constitutional precedent. Lastly, this Note recommends ways the Supreme Court, K-12 administrators, and policymakers can retain the benefits of the deference model without suppressing merely offensive but constitutionally protected free speech, exhorting school officials to foster freedom to differ-not fear of speaking up-in their classrooms.
