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David French on the Risk of Citing High School Cases
David French, Alliance Defense Fund Senior Counsel and former FIRE president, commented at Phi Beta Cons on Will's blog entry from last week in which Will discussed how citing high school cases to defend the freedoms of college students is dangerous because it may downgrade the level of adult college students' rights to those of minors in high school. As David says,
[T]he analysis often defaults to Tinker [a high school free expression case] because it is, quite simply, easiest. Judges are telling universities that their speech codes couldn't even be applied to children, much less the adults occupying the "free marketplace of ideas" on a college campus. The danger, however, is exactly what Will notes — after so many citations to Tinker, it becomes easier and easier to simply conflate the college and high-school environments.
Everyone who is concerned about liberty on campus needs to be vigilant about infantilizing college students in this way. There is no moral or legal justification for treating 18-year-old adults in college like children; we don't similarly treat their adult high school friends who chose to take jobs instead of go to college. It's too bad this obvious point seems to be lost on so many college administrators. For those who want to know more about the legal reasons for the distinction, Kelly's recently published law review article in the Texas Journal on Civil Liberties and Civil Rights has a lot more information.
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