An Analysis of First Amendment Protection for Student Expression, Mid-1900s-2011

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Title: An Analysis of First Amendment Protection for Student Expression, Mid-1900s-2011
Author: Conaway, Anne
Abstract: This dissertation sought to determine if federal-level, post-secondary student freedom of expression case law was developing in a similar path to that at the K-12 level of education. It also investigated the ways in which a K-12, highly speech-restrictive legal standard arising from the K-12 case Hazelwood v. Kuhlmeier has been utilized at the post-secondary level of education. The question of this case's applicability to post-secondary freedom of expression case law has resulted in a federal circuit court split on the matter. The U.S. Supreme Court has denied certiorari in these cases, leaving lower courts to guess as to whether or not to utilize it in decision-making. In answering these research questions, all federal-level case law found at both levels of education from 1940 to 2011 was analyzed through both traditional legal case analysis and an analytical process specifically designed for this project. The findings revealed that, for the most part, post-secondary student expression case law is, indeed, developing both substantively and at the same pace as that at the K-12 educational level. Much of this consistency is due to utilization of another K-12 freedom of expression case, Tinker v. Des Moines Independent Community School District. This case has been highly protective of student expression at both levels of education. In regard to the second research question, this research found that one federal circuit court case declined to apply Hazelwood, indicating it was not an appropriate standard for use at the post-secondary level of education. Three federal circuit courts and one federal district court, however, have decided cases per Hazelwood. Application, however, has been neither consistent nor speech-protective. Further, it is expected that unless or until the U.S. Supreme Court rules on its applicability to post-secondary student expression, the number of cases in which it is utilized will continue to rise.
Date: 2012

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