By Tracy L. Adamovich
There is a constant struggle between school administrators and
students in determining the extent of a student’s First Amendment
free speech rights. If speech is made on-campus it generally falls
into three common groups of speech, and there is much case law
guiding school administrators and courts in the regulation of such
speech. However, when the speech originates off-campus and is
brought on-campus by a student other than the original speaker, the
analysis becomes increasingly difficult. Moreover, there is little
case law and scholarly writing on the subject.
The outcome is that this aspect of student First Amendment
rights is in a state of disarray and lacks a clear
standard.
This Note examines several cases where students were disciplined
for off-campus speech brought on-campus by another student. This
Note then analyzes public employee speech cases in order to develop
a balancing test for use in student speech cases. Finally, this
Note proposes that the new balancing test, loosely based on public
employee speech cases, can be applied by the courts in determining
whether a student’s First Amendment free speech right was
violated. The balancing test will ensure that courts will
weigh the off-campus and private nature of the speech with the
possible on-campus disruption caused by the speech.