Replacing Tinker

Replacing Tinker

Read Full Article (PDF)

 

 

 

 

Replacing Tinker

In this Article, I wish to question whether reaffirming the animating spirit of Tinker is the best way to protect student speech rights. In allowing schools to punish student speech that
school officials reasonably believe could be substantially disruptive, Tinker founds students’ free expression rights on unstable ground. This is true for two reasons. First, the Tinker standard allows school officials to regulate student speech based on their own perceptions of what its impacts will be. While these perceptions must be reasonable, courts have shown extraordinary deference to
educators’ claims that student speech could be substantially disruptive. Second, the substantial disruption standard allows speech to be restricted not because it is in some way unlawful, but rather because of what others’ reactions might be to it. As I discuss below, government regulations with either one of these defects would generally be found unconstitutional in a nonschool context, because they give government officials too much discretion to burden or proscribe unpopular speech—the very harm the First Amendment’s free speech guarantee is designed to guard against.

For these reasons, I argue that Tinker’s substantial disruption standard ought to be replaced by something like the public forum doctrine, which tailors governments’ power to restrict speech in a
given forum based on the forum’s traditional use and the government’s role in creating it and is highly skeptical of government discretion in determining what expression will be allowed in the forum. In my view, schools should be allowed to regulate student speech only when they create or control the forum in which it is expressed. Otherwise, they should be without the power to regulate student speech. Even within the forums that they control, I argue that schools’ ability to regulate student speech should be circumscribed.

Noah C. Chauvin*

*Attorney Advisor, U.S. Department of Homeland Security

Overhauling Rules of Evidence in Pro Se Courts

Overhauling Rules of Evidence in Pro Se Courts

Read Full Article (PDF)

 

 

 

 

Overhauling Rules of Evidence in Pro Se Courts

 

State civil courtrooms are packed to the brim with litigants, but not with lawyers. Since the early 1990s, more and more litigants in state courts have appeared without legal counsel. Pro se litigation has grown consistently and enormously over the past few decades. State court dockets are dominated by cases brought by unrepresented litigants, most often in domestic violence, family law, landlord-tenant, and small claims courts.

Yet, the American courtroom is not designed for use by those unrepresented litigants—it is designed for use by attorneys. The American civil court is built upon a foundation of dense procedural
rules, thick tomes of long-evolved substantive law, and—the focus of this piece—a complex set of evidentiary prohibitions and exceptions. The American civil court is designed for two competing adversaries to face off against one another. It is built on the assumption that both of those adversaries will present the best case they can, employing an accurate understanding of the complex rules and laws that govern the proceedings. Nonlawyer pro se litigants often struggle to adhere to the norms of the adversarial American legal system. As a result, complex legal rules present an access-to-justice barrier to unrepresented litigants unable to comply with them.

Andrew C. Budzinski

Assistant Professor of Law, University of the District of Columbia David A. Clarke School of Law, Co-Director of the General Practice Clinic.

 

css.php