Morse V. Frederick - Subsequent Judicial Interpretation

Subsequent Judicial Interpretation

Melinda Cupps Dickler noted that "The few courts that have discussed Morse have disagreed about the breadth of its holding.", supporting this claim with the following citations:

Compare Lowery v. Euverard, 497 F.3d 584, 602 (6th Cir. 2007) (Gilman, J., concurring) (noting that Morse's holding is narrow), and Layshock v. Hermitage Sch. Dist., 496 F. Supp. 2d 587, 596-97 (W.D. Pa. 2007) (iterating that Morse did not alter the Tinker framework), with Boim v. Fulton County Sch. Dist., 494 F.3d 978, 9984 (11th Cir. 2007) (holding that Morse's holding is broad). The Layshock court stated that Morse did not change the basic framework established by the Tinker trilogy, which it described as a scheme in which Fraser and Kuhlmeier are exceptions to Tinker's general rule. Layshock, 496 F. Supp. 2d at 596. Significantly, however, the court cited to both Morse and Tinker as requiring courts to defer to school officials' decisions about punishing student speech. Id. at 597. On the other hand, the court also accepted Justice Alito's concurring argument in Morse when it held that Morse does not permit school officials to regulate student speech merely on the basis that it is incompatible with the schools' educational missions. Id. at 599.

By contrast, the Eleventh Circuit extended Morse's rationale about illegal drugs to the context of student speech that is "construed as a threat of school violence." Boim, 494 F.3d at 984 (upholding the suspension of a high school student for a story labeled as a "dream" in which she described shooting her math teacher). Moreover, the court concluded that Morse supports the idea that student speech can be regulated where " a school administrator's professional observation ... certain expressions have led to, and therefore could lead to, an unhealthy and potentially unsafe learning environment." Id. at 983 (quoting Scott v. Sch. Bd., 324 F.3d 1246, 1247 (11th Cir. 2003)). Some commentators predict that courts will extend Morse to further restrict protection for student speech. See, e.g., Hilden, supra note 12 (discussing Wisniewski v. Bd. of Educ. of Weedsport Cent. Sch. Dist., 494 F.3d 34 (2d Cir. 2007)); see also infra text accompanying note 17 (providing further discussion of Wisniewski, in which the Second Circuit cited to Morse, but applied Tinker).