Tinkering With Circuit Conflicts Beyond The Schoolhouse Gate

Stephen Wermiel, American University Washington College of Law


For many years, school districts throughout the United States have wrestled with questions about the scope of their authority to discipline student speech that takes place away from school. Federal courts have handled many cases with differing outcomes. The U.S. Supreme Court has been silent, however, denying review to at least seven cases in the last nine years. This Article argues that the Supreme Court has passed up the cases because, while the factual outcomes at times appear in conflict, the legal analyses rely on the case of Tinker v. Des Moines Independent Community School District. Although it seems like chaos in lower federal courts, the Supreme Court may well have persuaded itself that there is no legal conflict.