In Friday’s post about the Supreme Court’s decision in Morse v. Frederick, I hypothesized that “readers might be wondering what this high school case has to do with FIRE’s mission, which explicitly deals only with higher education and not with high schools.”
It’s true that a fairly bright-line distinction has traditionally divided the rights of high school students from those enjoyed by college students. So at first blush, it’s not immediately apparent that the Court’s decision in Morse will affect individual rights in higher education.
Upon further examination, sadly, there’s good reason to be concerned that this opinion will be used in a variety of ways to curtail the free speech rights of college students. First of all, in the past several years, a number of lower court opinions have dangerously conflated the rights of college students with those of high school students. Both Brown v. Li, 308 F.3d 939 (9th Cir. 2002) and Hosty v. Carter, 412 F.3d 731 (7th Cir. 2005) applied to college administrations the standards of Hazelwood v. Kuhlmeier, 484 U.S. 260 (1988), a Supreme Court case that granted high school administrations the power to control the content of student newspapers.
In Hosty, for example, the Seventh Circuit explicitly rejected the idea of a bright-line distinction between college and high school students, ignoring decades of case law clearly distinguishing the rights of high school students (who are mostly minors) from those of college students (who are overwhelmingly 18 and over). In a parenthetical discussing the differing rights of high school and college students, the court wrote, “[n]ot that any line could be bright; many high school seniors are older than some college freshmen, and junior colleges are similar to many high schools.” While that aside is thankfully dicta, it jibes with a general trend in case law and society to regard college students as little more than very senior high school students―a bias which ignores the fact that college students’ ages range from teenage to senior citizen.
The fear that the Morse opinion will be applied to higher education is not merely paranoid speculation. What may be of greater concern, however, is how the rationale of Morse is likely to be abused by those who favor speech codes, speech zones, civility restrictions, and other methods of curtailing campus speech. I can just hear the argument from college administrators already: “In Morse, the Court decided that there are some evils so threatening to our society and so incompatible with education that they must be specifically excepted from the protections of the First Amendment. Following this logic, it stands to reason that intolerant, hurtful, hateful, biased, or unwelcoming speech should also not be protected. After all, it is difficult to argue that joking about marijuana use poses a serious and substantial threat, while hateful speech, which by its very nature serves no legitimate educational purpose and is a manifestation of perhaps the most pernicious social ills of our society, is not threatening.”
This would certainly be greeted as a persuasive argument by many in academia. They will argue: Isn’t intolerance of at least as much danger to society as marijuana? Of course, as anyone who keeps up with FIRE’s work knows, any dissenting opinion on the modern campus can easily be labeled “hurtful, hateful, biased, or unwelcoming.” I can all but guarantee that the Morse v. Frederick opinion will lead to a new volley of law review articles pronouncing that the door has been opened to restrictions on so-called hate speech. In the meantime, Morse will be simply added to the arsenal that administrators use to justify official punishment, and we will see its logic transposed, transformed and transmogrified in new and surprising ways for years to come.