The Twenty-Sixth Amendment: The Difference Between Free Speech Rights at Grade Schools and Universities

By April 8, 2009

This week, I am happy to announce the publication of my law review article, The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students’ First Amendment Rights in the Texas Journal on Civil Liberties & Civil Rights. I’d like to specially thank Dan Gordon, who originally came up with the idea animating the article. The article offers a refutation to colleges who justify the censorship of student speech by claiming they possess the in loco parentis powers of grade schools. I will briefly summarize the article here, and you can read the whole thing online at SSRN or on FIRE’s website.

In recent years, the Supreme Court has allowed grade schools a great deal of leeway to regulate their students’ speech on the grounds that the schools operate, to some degree, in loco parentis. The Court’s most recent case on the issue, for example, held that a high school could suspend a student for waving a banner reading "BONG HiTS 4 JESUS" while he was at a school event watching the Olympic Torch Relay. Morse v. Frederick, 127 S. Ct. 2618, 2622 (2007). The Court allowed this on the theory that the students in the audience were so impressionable that the sign might sway them to take drugs. Id. at 2629.

In contrast, the Court has historically construed the nation’s universities as society’s premier marketplaces of ideas, places where speech should be at its freest. Yet a fair number of universities have sought to justify their own censorship by reference to the grade school cases, arguing they have the same in loco parentis powers.

The federal courts have struggled with this argument. Some federal circuits have applied the grade school cases to the university wholesale, while others have soundly rejected their application to the university setting.  

Despite the current federal circuit split over this issue, legal commentators have largely ignored it. In my article, I argue that the Twenty-Sixth Amendment, which guarantees suffrage to citizens eighteen years and older, provides a clear answer to the prevailing legal confusion.

A historical analysis of the Twenty-Sixth Amendment debates reveals that the ratifiers understood the Amendment to establish eighteen-year-olds as full-fledged citizens, with all the attendant constitutional rights and responsibilities.

After covering this history and the subsequent, but now forgotten, legal incorporation of it into constitutional and tort law, I argue that a proper reading of the Constitution renders the state treating eighteen-year-olds as children unconstitutional. This, in turn, prohibits the in loco parentis university, and thereby creates a bright line between grade schools and universities.

Given the current encroachments on university students’ free speech rights, remembering the historical understanding of the Twenty-Sixth Amendment provides a timely reminder that university students are overwhelmingly adults and should be treated as such.