Forecasting Disruption, Forfeiting Speech: Restrictions on Student Speech in Extracurricular Activities

Abstract

The First Amendment speech rights of public school students engaged in extracurricular activities occupy a doctrinal no-man’s land between individual expression and a government-controlled curriculum. Applying Supreme Court precedent, courts tend to characterize extracurricular student speech as either individual speech under Tinker v. Des Moines Independent School District or “school-sponsored” speech under Hazelwood School District v. Kuhlmeier. More recently, some courts have analogized students to government employees, particularly when school officials “forecast” that speech will be disruptive. Voluntary, extracurricular activities, and student speech within those activities, play essential roles in education. Applying a forecast of disruption standard, however, to student extracurricular speech shifts the burden from schools to students to show that speech is not disruptive. As a result, the forecast of disruption standard may condition student participation on giving up free speech rights, contrary to schools’ educational missions. This Note proposes requiring school officials relying on a forecast of disruption to punish student speech to demonstrate that the disruption materially and substantially interferes with the educational goal of the particular extracurricular activity.