Protecting Student Speech

Guest Blogger

Ronald C. Den Otter

My new book, Education in Democracy:The Importance of Free Speech in American Public Schools, is about the value of student speech and the dangers of censorship. Coupled with distrust of government, where school authorities cannot be trusted to police student speech competently or fairly, I make an autonomy-enhancing argument, contending that the exercise of free speech rights by students is constitutionally required in the name of respecting their autonomy, both as speakers (or writers) and listeners (or readers). I also explain why this practice over time is conducive to the development of the autonomous capacities that they will need as they approach adulthood and democratic citizenship. Ultimately, I defend the perhaps counterintuitive conclusion that constitutional protection for student speech is more imperative when students are young and impressionable. Not in spite of their age, but because of their age, there ought to be few limits regarding what they can say or write outside the classroom, when they are on campus or off campus using social media. 

In Bethel School District v. Fraser, the Court allowed school officials to censor student speech that was lewd and plainly offensive. This exception to Tinker implies that a school could ban sexually explicit speech even when that speech is somewhat political, which outside the context of public schools, would be presumptively constitutionally protected unless it were, legally speaking, obscene. On top of that, this decision could be read more broadly to authorize school officials to censor student speech that they deem inappropriate or offensive even if it lacks sexual innuendo. Hazelwood School District v. Kuhlmeier empowers school officials to prohibit speech in school-sponsored activities that bear the imprimatur of the school, like the school newspaper, plays, dances, and sporting events. This ruling would mean that a school might be able to ban football players, who represent the school, from taking a knee during the playing of the national anthem to protest police brutality, as long as the sporting event qualifies as a school-sponsored event and the school can show that the restriction on the player’s speech is reasonably related to a legitimate educational interest, such as teaching respect for the flag or the police. Likewise, school officials, with different political views, probably could ban the football team from wearing armbands that read “Blue Lives Matter.” In Morse, the “Bong Hits for Jesus” case, the Court made another exception to Tinker, ruling that schools could ban speech that advocates illegal drug use, prompting Justice Thomas in his concurrence to propose that Tinker should be explicitly overruled. As Justice John Paul Stevens implies in his dissent, this decision could be read more broadly as permitting some viewpoint discrimination, which normally would be, without question, constitutionally impermissible elsewhere. Mahanoy, which the Court decided several years ago, may seem like a long overdue victory for student speech, but eight of the justices ended up protecting a student’s crude speech (and gesture) on social media when she was off campus, in a parking garage at a mall on the weekend.

My objective is not only to go much farther than the Court did in Tinker by spelling out why almost all student speech should be constitutionally protected but to clarify what the law should be. The clearer the legal rule or standard is, the harder it will be for school officials to restrict student speech without adequate justification and the harder it will be for judges to permit such restrictions when they are litigated. That is not to say that a clearer precedent itself could prevent school officials from restricting student speech that is unequivocally constitutionally protected, yet it is to say that as much as possible, the Court should make it more difficult for them to do so if they are so inclined. For now, due to this lack of clarity in this area of First Amendment law, those who have little sympathy for student speech can construe the relevant precedents broadly and can emphasize some decisions over others, allowing their own political preferences to determine whether the student speech in question can be banned. In other words, a lack of clarity facilitates viewpoint discrimination. After all, for many school officials and teachers, their primary concern will be the enforcement of school discipline so that understandably, it will be easier for them to do their jobs, including avoiding controversy. However, that tendency is troubling when this discretion would enable a school official to censor student speech that either is, or at least should be, constitutionally protected, and most likely would be protected if the speaker were an ordinary adult or a student off campus.

In making the case that student speech should receive considerably more constitutional protection than it has received in the past, I know that I will not come close to persuading everyone, such as school officials and teachers who are on the front lines, so to speak, and have a very difficult job to do. Nevertheless, I hope that what I have to say will resonate with many of those who are on both the left and the right of the American political spectrum. What I mean by that is despite deep partisan differences, it may be possible to convince those who are on different ideological teams that they have good reasons not to give school officials the authority to censor so much student speech. Because school officials at a particular school could be progressive or conservative, an individual has no way of knowing in advance whether the political views that she favors --or those of her children-- will be at risk of being censored if she were thinking about the situation from an impartial standpoint. Each person should assume that in the absence of constitutionally protecting almost all student speech, her worst political “enemy” will be deciding which student speech can be silenced. The best rule, then, would be to not empower school officials to censor student speech.

One might believe that Americans can learn about the importance of free speech in other places, outside of school, when they are young, and to some degree that is true. But it strikes me that a public school is an ideal place for such learning to take place. First, about 90% of Americans still attend public schools, even when home-schooling and private schools remain an option for some of them. Second, students spend a considerable amount of their time in school during the academic year where they must interact with others, some or many of whom may be different than they are. Third, many of them will not attend college. Thus, junior high and high school will be their only opportunity to be exposed to the various dimensions of free speech in an educational environment. Fourth, when it comes to free speech, there really is no substitute for learn by doing. Although it is imperative that students learn about famous free speech cases in their high school government course and discuss freedom of expression in the abstract, I doubt that an experience in the classroom would substitute for the actual experience of either expressing a political view about, say, healthcare, the war on drugs, mass incarceration, or police brutality, or having to deal with speech that one really disagrees with in face-to-face interactions. Fifth, there are almost always non-censorious alternatives.

The most serious difficulty with not protecting enough student speech is that it is terribly inconsistent with the most appropriate understanding of modern free speech doctrine and its underlying principles. That is an unjustifiable double standard where restrictions on speech that ordinarily are not permissible are allowed in an educational setting (where they would be on a college campus, for instance) when at least arguably, free speech rights are even more important. Once one can show that a public school is, for the most part, best thought of as a kind of public forum for students, who have a constitutional right to express themselves and others have a right to hear them, then it becomes much more difficult to defend restrictions on student speech. When school officials censor such speech, whether they realize it, they are indoctrinating them instead of appealing to their rational faculties. At the end of the day, school authorities must start acting within the limits of the First Amendment.

Ronald C. Den Otter, is Professor of Political Science, California Polytechnic State University, San Luis Obispo. You can reach him by e-mail at denotter@calpoly.edu.