Abstract

The law favors clarity. While lawyers may benefit from their ability to analyze issues involving conflicting rules and exceptions, the public interest is better served by general principles of law . . . Students, parents, teachers, and school officials clearly need to know the rules, as they all have a stake in their enforcement, and yet these individuals must navigate through a sea of confusing exceptions . . . [T]he litigation that inevitably arises from Tinker and its progeny eventually begs a potentially uncomfortable question: do public school students need free speech rights at all? . . . In this paper, I argue that the Tinker standard should be overruled. Specifically, I argue that elementary, middle, and high school students do not require free speech rights in public schools. I base this conclusion primarily on two arguments. First, Tinker and its progeny have produced excessive litigation, which burden our needy public school systems and distract schools from their goal of educating our Nation's youth. Second, after cases such as Morse, Fraser, and Hazelwood, Tinker has so many exceptions that its continued use by courts may well be discretionary.