Madeline Feldman Fenton * | 25.1 | Comment | Citation: Madeline F. Fenton, Comment, Why Do Public Students in High School Get More Free Speech Protection Than in Universities? A Comparative Analysis of “Off-Campus” Free Speech in Secondary School and Post-Secondary Public Schooling, 25 U. Pa. J. Const. L. 236 (2023).

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This comment explores the current landscape of First Amendment free speech protections, specifically comparing the “off-campus” rights of public students in high school versus college. The 2022 legal landscape in the United States is such that students’ First Amendment right to free speech is better safeguarded in public high school than in public post-secondary education. The most recent Supreme Court case on the matter, Mahanoy Area School District v. B.L., decided in 2021 in favor of protecting a high school student’s online speech, leaves out college and university students. Instead, courts ruling on public higher education students’ speech will likely look to Tatro v. University of Minnesota, decided in 2012, for guidance. In Tatro, the Minnesota Supreme Court found a university student’s online posts violative of the program’s policy and gave the university free rein to punish her speech. The differing rulings in B.L. and Tatro might have some plausible explanations as to the divergent treatment the students received, but at the end of the day, it leaves courts ruling inconsistently. 

This paper examines the two cases mentioned above in greater detail and within the context of the Tinker test developed for student free speech in 1969. Possible explanations to account for the relatively opposite rulings including: (1) the specific wording of each student’s posts; (2) the specific conduct violation of which each student was accused; (3) the difference in thinking about what “off-campus” means in high school versus college; and (4) the differing technological landscape at the time of each ruling. 

Normative arguments in this context include: (1) whether postsecondary students should have equal or more free speech protections; and (2) the role of the courts and their ability to keep up with modern and rapidly evolving technology. Ultimately, the primary difference between B.L. and Tatro is that the courts have not been able to evolve rapidly to keep up with modern technology. Consequently, an appropriate standard for off-campus, online speech has yet to emerge. This paper concludes that Tinker is not the correct test to evaluate off-campus speech, and a new one is necessary.

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* University of Pennsylvania Class of 2022 Graduate, Law School and Graduate School of Education. Associate at Holland & Knight, LLP.