Leslie Kendrick - Virginia Law Review

Foreword to In Tribute: Professor Frederick Schauer

I am delighted to introduce this special issue of the Virginia Law Review Online, which celebrates the life and work of my friend, mentor, and colleague, the late Fred Schauer. The essays that follow were written for a symposium entitled “Rules and Reasons: A Conference for Fred Schauer,” held here at the University of Virginia in September 2025 to honor Fred and mark the one-year anniversary of his passing, on September 1, 2024.

As a result, this collection is something beyond a regular law review issue, or even a regular festschrift. It is a memorial, a tribute, and the product of a gathering of a worldwide community. The scholars who assembled in September 2025 were a very distinguished group, as you will see as you read some of their work. Nevertheless, the most important distinction they all shared was that Fred mattered to them, and they mattered to Fred. The conference, and these essays, were created in Fred’s memory, but they also attest to his enormous impact and his enduring legacy across multiple areas of the law.

To give a small sense of that legacy, let me describe Fred by the numbers. Fred wrote more than 300 works, including 14 books, which he authored, edited, or co-edited. (And here, I must digress for a moment. When preparing the program for the conference, the Law School communications director wanted to include a full chronological list of Fred’s works. When she asked ChatGPT to produce such a list, it kept returning answers such as, “This is going to be a really long list. Are you sure you want such a long list?” and “Here are Fred Schauer’s top titles instead.” As she told me, Fred wrote so much that he defeated ChatGPT.)

Fred’s work cut across many areas of law and many dimensions, from the most practical to the most theoretical. The essays that follow address a multitude of topics, any one of which would occupy most scholars for a lifetime. Fred turned his considerable talents to each of these fields over the course of his remarkable career and contributed significantly to each.

Fred is also one of the most-cited legal scholars ever: A 2021 study put him in the top 20 most-cited legal scholars of all time, with 11,222 citations in books and articles as of that time, ahead of the likes of Herbert Wechsler and Henry Hart.¹1.Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021).Show More Even this astounding fact falls far short of capturing Fred’s legacy. In addition to that enormous impact on scholarship in English, Fred’s works have been translated into at least six other languages: Italian, Spanish, Portuguese, French, Chinese, and Turkish. Participants in our conference represented four countries, sixteen universities, and two courts of law—and are just a small sliver of the scholars and lawyers around the world who have been influenced by Fred and his work.

That is Fred by the numbers: he was a giant, by any measure.

But none of that captures Fred the person—Fred the teacher, mentor, and colleague. All of us who knew him have stories about how remarkable he was. Speaking for myself, I joined the Virginia Law School faculty the same year as Fred and his spouse Bobbie Spellman, in 2008. I was working on freedom of speech and was awestruck by Fred. The Law School provides new faculty members with a mentor, a senior scholar on the faculty who will read their work, give advice, and generally offer support. I asked if Fred could be my mentor because I thought that was the only chance I had of possibly getting this incredibly important person to read any of my work.

It did not take me long to realize how wrong I was. As incredibly accomplished as he was, Fred was equally unassuming, approachable, and—this is very important in a teacher and colleague—both honest and kind. In addition to being one of the most distinguished people in the legal academy, Fred was one of the most generous about reading others’ work, especially that of junior scholars. Fred not only read everything I ever sent him, but he did it in record time and always sent it back with a long email list of suggestions and comments, which ranged from the insightful to the devastating. He did the same for any scholar who asked him, junior or senior. He also took time to give junior scholars advice about new projects, potential future lines of inquiry, and that all-important but hard-to-articulate question of what kind of scholar one ought to be. He appreciated each of us for our individual talents and strengths and had a knack for engaging in those big career questions in a way that was at once knowing—about us, about the vagaries of legal academia—and supportive. (The last piece of advice Fred ever gave me was, “Don’t be a university president.”)

Fred was a first-generation law school graduate, a first-generation college graduate, and a first-generation high school graduate. Born in Newark, N.J., he attended Dartmouth College and then Harvard Law School. He started his teaching career at West Virginia University and worked at five very different institutions: WVU, the College of William & Mary, the University of Michigan, Harvard University, and finally the University of Virginia. He was a generous mentor and role model to first-generation students. Equally importantly, he was down to earth, and that is not just a nice thing to have in a colleague or teacher: for anyone who sometimes feels out of place in academia, it is vital. Where some distinguished scholars might insist upon their rank in ways quiet and loud, Fred was the opposite. He made everyone feel welcome. He felt no need to assert his status: he simply asserted his mind, which was assertion enough.

I could write as many words as Fred wrote across his lifetime and still not capture everything that was wonderful about him. I am grateful to the Virginia Law Review for publishing this collection of essays, and to all the authors who have contributed here. Many hands together paint a fuller picture of Fred Schauer the scholar, mentor, teacher, and friend.

Fred R. Shapiro, The Most-Cited Legal Scholars Revisited, 88 U. Chi. L. Rev. 1595, 1602 (2021). ↑

Foreword: Tinker at 50

Fifty years ago, in Tinker v. Des Moines Independent Community School District, the Supreme Court intoned, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[1] Nevertheless, speech protections for students in public primary and secondary schools have never been as robust as Tinker’s rhetoric suggests, not at the time of Tinker and certainly not now after decades of erosion. Tinker itself said that student speech was not protected if it was materially disruptive of the educational mission or involved “invasion of the rights of others,” two limitations on speech in public schools at once sensible and manipulatable.[2] Schools and courts have both made use of the disruptiveness exception to regulate a wide variety of speech, while the exception for speech that invades the rights of others has mostly withered on the vine, when it arguably has important work to do.

Since Tinker, students have lost every student speech case to come before the Supreme Court. In each one, the Supreme Court has identified another type of student speech as categorically unprotected by the First Amendment: profane and sexually suggestive speech,[3] school-sponsored speech,[4] and speech advocating illegal drug use.[5] These days, to reach the uncertain protections of Tinker, students must run a gauntlet of categorical exceptions into which their speech might fall.

Despite this retrenchment, Tinker still has real power. It governs the most salient student speech issues of our time, including the scope of school disciplinary authority over social media and other off-campus speech and the ability to regulate students’ wearing of white supremacist symbols in public schools. Tinker put forth a deceptively simple maxim: speech may be regulated when it disrupts the educational environment or invades the interests of others. What these words mean is at the heart of most K-12 student speech conflicts today.

This Symposium considers Tinker’s history and its legacy. The four pieces in this collection go all the way from the Supreme Court’s pre-Tinker cases, through the opinion itself, to its influence on current speech issues finding their way into schools and courts across the country. Professor Mary-Rose Papandrea’s piece points out that school speech cases are complicated by the fact that, both before Tinker and since, the Supreme Court has been none too clear about minors’ free speech rights outside the school context.[6] Professor Papandrea also argues that courts’ non-intrusive, deferential approach to schools and school officials leaves student protest and heterodoxy more vulnerable than Tinker appears to suggest.[7]

Professor Mary Anne Franks moves from the schools directly governed by Tinker’s holding, primary and secondary schools, to the realm of higher education, where she considers Tinker’s significance—and its distortion—in the university context.[8] Professor Franks suggests that contemporary claims of a free-speech “crisis” on college campuses are overblown and indeed manufactured. She argues that these claims of crisis misconstrue a foundational free speech principle affirmed in Tinker: that peaceful protest is an essential part of freedom of speech.[9] In criticizing college students for protesting controversial speakers, Professor Franks argues, the campus speech crisis narrative has “targeted a long-recognized, well-established form of protected free speech—student protest—and recast it as censorship.”[10]

Meanwhile, the student contributions to this Symposium address contemporary speech issues in public schools. Manal Cheema’s essay considers Tinker and subsequent cases and the questions they leave open about schools’ ability to require student participation for pedagogical purposes.[11] Cheema examines a recent Fourth Circuit case in which a student unsuccessfully claimed that a school lesson on world religions violated her First Amendment speech rights because she had to fill out a worksheet stating basic tenets of Islam.[12] Cheema argues that, although the court reached the correct outcome in this case, the Supreme Court has not provided enough guidance on the scope of speech that can be required for pedagogical purposes.[13] She examines the relevant precedent to develop a roadmap for courts faced with similar claims.

Finally, Anna Cecile Pepper’s essay applies Tinker and its progeny to student walkouts protesting gun violence and climate change.[14] Pepper points out that here, too, existing precedent provides insufficient guidance, at least in situations where schools expressly permit participation in a walkout.[15] In such cases, the status of student speech during the walkout becomes unclear, and schools could argue that it is completely unprotected school-sponsored speech.[16] Pepper suggests that Tinker provides the better paradigm and that all student walkouts, both permitted and unpermitted, should be governed by Tinker.[17]

All of these contributions highlight Tinker’s continued importance. Even as it left many questions unanswered, even as its scope was reduced by subsequent cases, even as its central premise remains under-developed, Tinker endures as the touchstone for school speech. Fifty years later, a Vietnam protest case sets the terms for walkouts and worksheets, for gun violence and climate change, for cyberbullying and white supremacist symbols—for all the dangers and opportunities that come with recognizing student speech rights while educating young people in a pluralistic and complex society. In the following essays, four scholars whom I am lucky to count as my students, colleagues, and friends, explain all of this and more.

[1] 393 U.S. 503, 506 (1969).

[2] Id. at 513.

[3] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).

[4] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

[5] Morse v. Frederick, 551 U.S. 393, 397 (2007).

[6] Mary-Rose Papandrea, The Great Unfulfilled Promise of Tinker, 105 Va. L. Rev. Online 159, 161 (2019).

[7] Id. at 168.

[8] Mary Anne Franks, The Miseducation of Free Speech, 105 Va. L. Rev. Online 218, 218–19 (2019).

[9] Id. at 233.

[10] Id.

[11] Manal Cheema, Fill in the Blank: Compelling Student Speech on Religion, 105 Va. L. Rev. Online 175, 178–79 (2019).

[12] Id. at 175–78 (discussing Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019), cert. denied, 2019 WL 5150487 (U.S. Oct. 15, 2019) (No. 18-1438)).

[13] Id. at 178–79.

[14] Anna Cecile Pepper, Walking out the Schoolhouse Gates, 105 Va. L. Rev. Online 198, 201 (2019).

[15] Id. at 204–07.

[16] Id. at 206.

[17] Id. at 214–16.

Are Speech Rights for Speakers?

Though it may sound surprising, there is a great deal of debate about whether speakers have free speech rights. Those who deny it say that the freedom of speech protects listeners, not speakers. Lately, these skeptics can point for support to First Amendment case law, which is expanding in ways that draw speakers’ rights into question. When search engines, Internet service providers, food producers, and so on are claiming immunity from regulation because they are speakers, the time has come to reevaluate speakers’ rights.

This Article does just that. It confronts hard questions about whether speakers have rights, including the argument that it is illogical for speakers to have rights. It shows that this is not the case. In fact, under the most plausible views of freedom of speech, speakers must have free speech rights.

Nevertheless, recognizing speakers’ rights is often inconvenient and difficult. Above all else, recognizing speakers’ rights has tended to distract from listeners’ rights, to less than salutary effect. These problems are real. But rights by definition complicate matters. The fact that they do so is not a reason to reject them.

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