Opening the Schoolhouse Gate: Why the Supreme Court Should Adopt the Standard Announced in Tatro v. Supreme Court of Minnesota to Permit the Regulation of Non-Curricular Student Speech in Professional Programs

INTRODUCTIONConsider the following hypothetical situations: a public university student takes a picture of a cadaver during an anatomy lab and posts that picture on Instagram; a student at a public medical school posts about a patient's medical condition on Facebook; a student at a public law school reveals private client information in a public blog.1In these three examples, a student may have violated both program rules and an established code of professional conduct or ethics.2 Assuming that the student's speech occurred in a non-curricular setting, however, the current jurisprudence on free speech in public schools would more than likely insulate that student from academic sanctions.3 In other words, the student's university could not lawfully alter the student's grades, suspend the student, or otherwise punish the student in any way.4This strange result occurs because these non-curricular "professional program" incidents occupy a very small niche relative to other non-curricular speech in the student speech landscape.5 Indeed, public universities are not generally permitted to police or restrict off-campus student speech that occurs through social media outlets like Facebook, Twitter, Instagram, and other public blogging sites.6 In today's world of hyper-connectivity, university control over such speech would enable a school to reach far beyond its curricular purview, nearly without restriction, into the personal lives of students.7The U.S. Supreme Court has decided speech cases involving both primary and secondary schools, but has yet to consider a student speech case relating to a university.8 Because of the danger that overreaching regulation poses to free speech in universities, however, it is critical to apply those cases narrowly when developing appropriate regulation for professional speech.9 Specifically, any regulation of speech must be narrowly tailored and directly related to the restriction of non-curricular professional code violations and must not be so overbroad as to offend the First Amendment rights of students.10This Note argues that the U.S. Supreme Court should adopt the standard articulated in 2012 by the Minnesota Supreme Court in Tatro v. University of Minnesota for university regulation of non-curricular professional speech.11 Part I of this Note examines four U.S. Supreme Court student speech cases and their varied adaptations by lower courts to the modern age of virtual communication.12 Part II of this Note explains that either the extension of U.S. Supreme Court precedent or the adoption of Tatro v. University of Minnesota would be a viable framework for the regulation of student speech in professional programs.13 Finally, Part III of this Note argues that both positive and normative reasons exist for allowing schools to regulate student speech in some instances of non-curricular professional student speech and that the standard announced in Tatro is the most effective way to accomplish that goal without unduly infringing upon the First Amendment rights of students.14I. THE EVOLUTION OF THE SCHOOLHOUSE GATE: MAPPING THE BOUNDARIES OF FREE SPEECH IN PUBLIC SCHOOLSThe degree to which the First Amendment protects speech in public schools has long been debated.15 Indeed, as recently as 2007 the U.S. Supreme Court did not unanimously agree that the First Amendment was originally intended to protect student speech rights.16 At their conception, public schools were largely substitutes for private schools, and as such subjected students to the strict enforcement of rules meant to instill a core of common values and self-control.17 During this time, teachers operated with nearly unlimited discretion in their classrooms and in the punishment of their students through the doctrine of in loco parentis.18 Student rights, including free speech rights, were severely limited if they existed at all.19Rightly or wrongly, however, the U.S. Supreme Court has developed limited jurisprudence protecting free speech in public schools. …