This Article answers two categories of questions, one social and another legal. The first series of questions is about the sociology of identity aggression and it seeks to determine whether there is a difference between, say, calling someone a "faggot" and calling someone a "dork." If there is a difference, to what extent is there empirical evidence that suggests that one is more harmful to the victim, to his community, and to his school? The legal problem flows directly from the relative harm posed by identity aggression: it is too simplistic to see the Court's student speech jurisprudence like a pie with discrete bites taken out. Rather, the consistency lays in the common core of concern - namely, the school's ability to teach its curriculum. If that is true, and if calling someone a "faggot" has demonstrably more negative effects on that core of concern, then regulating identity aggression in schools should be a simple matter. To this end, this Article proposes a normative way of understanding the Supreme Court's student speech jurisprudence based on an effects test, which is the consistent rationale underlying the Court's student speech cases. School discipline of identity-based aggressors is consistent with that effects test and retains fidelity to the liberal and classical values running through American public education. Part II defines identity-based aggression in greater detail as attacks on an intrinsic personal characteristic that is salient to a person's or group's identity. This definition relies on current psychological evidence and my own sociological studies. In Part III, I describe the unique harms of identity-based aggression by comparing them to traditional face-to-face aggression. I argue that identity-based aggression devalues personhood, which in turn wreaks particular devastation on a school's and community's social fabric. This damage is exponentially compounded when the identity-based aggression occurs online. Part IV situates those harms within the Supreme Court's student speech doctrine. Tinker and its supposed exceptions are linked by a consistent effects test that bases the constitutionality of school discipline of student speech on some measure of the speech's effects on the school environment. To this end, I argue that the Court's student speech jurisprudence since Tinker should not be seen, as is the conventional wisdom, as a single test and three exceptions, but rather as an imperfect elucidation of one flexible balancing test that assesses the value of the speech versus its impact on the school's ability to teach. Because identity-based aggression irreparably damages the school by harming its reputation and its ability to teach, restricting identity-based aggression makes sense within this framework. Finally, Part V shows how this proposal is consistent with both the liberal and classical educational values that run through Tinker, Fraser, Kuhimeier, and Morse, further suggesting the proposal's mainstream appeal.
Ari Ezra Waldman,
All Those Like You: Identity Aggression and Student Speech ,
77 Mo. L. Rev.
Available at: https://scholarship.law.missouri.edu/mlr/vol77/iss3/5