On Monday, the SCOTUS ruled that “schools may take steps to safeguard those entrusted to their care from speech that can reasonably be regarded as encouraging illegal drug use” (link). This decision explicitly gives schools the right to restrict student speech based on content, rather than the disruptiveness of speech.
The justices have it backwards when they defend the right of the school to restrict student speech that cannot “plausibly be interpreted as commenting on any political or social issue.” Students do not need to justify their speech to the government; the school needs to justify its restrictions. There is a clear reason for limits on disruptive student speech; if any one student is allowed to disrupt a whole classroom or school, public schools would simply not function most of the time, but there is no similarly convincing argument for restrictions on speech which advocate violation of the law, drug laws or any others.
The court argues by fudging the issues. Any public speech advocating the use of drugs must be either social or political speech. It attempts to argue that this is not so by citing the fact that the “bong hits 4 Jesus” student claims the banner was intended as a joke and not to make any sort of political or social statement, but the intent of the student is irrelevant. The banner could certainly be “plausibly interpreted” as advocating the use of drugs, which falls under “commenting on any political or social issue”. This is demonstrated by the fact that the principle did interpret it this way; she interpreted it as advocating the use of marijuana. Public encouragement of drug use can always plausibly be interpreted as either advocating that the use of drugs be decriminalized or advocating for people to use drugs, which is social advocacy and therefore protected speech. If you don’t be believe advocating for people to use drugs is social advocacy, consider advocacy for the opposite behavior; it is impossible to argue that advocating for people not to use drugs is not social commentary. How could advocating one social behavior be social commentary but advocating the opposite social behavior not be social commentary?
I would like to point out that in a voucher system, free speech rights would almost never come up, and the government would not have to restrict the free speech rights of students. If a family felt that a school’s controls on student expression were overly restrictive, they could simply choose another school.