A Survey of June’s Legal Scholarship on Academic Issues

By June 25, 2012

The past month has seen a number of articles regarding academic rights published in law reviews and law journals across the country. 

  • Several articles were published relating to the application of the Supreme Court’s 2006 decision in Garcetti v. Ceballos, 547 U.S. 410 (2006), in the public school teacher context. FIRE has had ongoing concerns with the impact of Garcetti on academia. In Social Media, Public School Teachers, and the First Amendment, Mary-Rose Papandrea of the Boston College Law School takes up these concerns and crafts a speech-friendly reconciliation of Garcetti for the public school context. She argues for a germaneness requirement (not applying Garcetti to curricular speech) and advises that, for curricular speech, the threshold "public concern" requirement should be discarded and that such speech should be protected whether or not on a subject of "public concern."
  • The Nevada Law Journal Summer 2012 issue compiles a number of pieces by legal academics picking their choice for the "Worst Supreme Court Case Ever." Professor Jeffrey W. Stempel at the University of Nevada, Las Vegas notably picks Garcetti v. Ceballos, in his piece Tending to Potted Plants: The Professional Identity Vacuum in Garcetti v. Ceballos, 12 Nev. L.J. 703 (Summer 2012).
  • Timothy J. Tracy, formerly counsel for the Christian Legal Society during Christian Legal Society v. Martinez, 561 U.S. ___ (2010), has an interesting retrospective of the case forthcoming in the University of Hawaii Law Review. Tracy argues that the Supreme Court’s decision, mistakenly resting on equal access concerns, ironically laid the groundwork for universities to "pick and choose which student groups they wish to recognize—even if it means picking nonreligious groups over religious groups." FIRE answers frequently asked questions about CLS v. Martinez here.

Two excellent pieces by student authors are also worth mentioning.

  • Meggan Lindsay, a rising 2L at William Mitchell College of Law in Minnesota, has a very speech-friendly forthcoming note, Tinker Goes to College: Why High School Free-Speech Standards Should not Apply to Post-Secondary Students — Tatro v. University of Minnesota, 38 Wm. Mitchell L.Rev. 1470 (2012). FIRE submitted an amici curiae brief to the Minnesota Supreme Court along with the Student Press Law Center in Amanda Tatro’s case. Lindsay argues that punishing Ms. Tatro for off-campus remarks that caused no disruption on campus would weaken the First Amendment rights of students in Minnesota and elsewhere. Lindsay’s arguments are worth review in light of last week’s ruling in Tatro from the Minnesota Supreme Court, which narrowly defined the ability of public universities to punish students for off-campus speech.
  • Tyler J. Buller has a very interesting article analyzing the effects of anti-Hazelwood laws. Following the speech-destructive decision in Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988) (holding that public school newspapers can be censored where the school has a "legitimate pedagogical concern" in regulating the speech), a number of states enacted statutes providing protection to student journalists greater than that which the Hazelwood decision afforded. Buller quantitatively analyzes the impact of these speech-protective laws, finding that they really do encourage student expression. This is a great piece from a student author, as I’ve pointed out here on The Torch previously.