Saving Our Children from the First Amendment

12 Speech in the Schools

Speech in the Schools Schools are central both to this effort and to the child’s life. Once children begin school, they may spend more of their time on the average school day interacting with the school population than with their parents. Their experiences in school, both in the formal classroom setting and in informal settings such as the hallways, the cafeteria and the locker room, are important to their psychological development. Any reconception of the First Amendment intended to protect children from influences that negatively affect their safety and psychological development will necessarily have an impact on the speech rights of children in the schools. At the same time, a number of writers have recognized the important role the schools must play in the development of children as participants in our political system. The schools are important to civic education in a broader sense than teaching how a bill becomes a law. Children must learn to engage in the sort of debate that sustains the political process. Thus, Amy Gutmann argues for a “principle of nonrepression” as a limitation on adult use of the state “to undermine the future deliberative freedom of children.”1 Children must learn not just to behave in accordance with authority but to think critically about authority if they are to live up to the democratic ideal of sharing political sovereignty as citizens. . . . [P]eople who possess sturdy moral character without a developed capacity for reasoning are ruled only by habit and authority, and are incapable of constituting a society of sovereign citizens.2 Bruce Hafen expresses similar sentiments: “The interest in self-governance . . . applies to students in a longer term sense. As holders of in12 228 choate rights of democratic citizenship, students have a high stake in the development of their own critical powers to act in the future as sovereign citizens.”3 That does not require adoption of a moral neutrality in the schools. Schools can teach values and prepare students for active citizenship. As Suzanna Sherry notes, there is no necessary conflict between value inculcation and critical thinking. The two tasks must be furthered concurrently . The child must develop the capacity “both to understand and internalize the norms of her society and to judge those norms against rational attack.”4 Not all restrictions on the short-term autonomy of children will thwart their civic development and, indeed, some restrictions can further the long-term autonomy necessary to their future role in the polity.5 What restrictions will and will not negatively affect the future role of children as adult participants in the political system will be a major consideration in this chapter. In addition to keeping in mind the implications of civic republicanism, it is necessary to examine the Supreme Court’s rulings in the area of schools and expression, before turning to a theory of what speech should be free and what subject to control. Having discussed the cases, a line can then be drawn recognizing the need to educate children with the implication that schools may sometimes limit speech, while at the same time showing concern for the potential distorting effect controlling student speech can have on the political future of the community. A. The Supreme Court Cases 1. Background Several cases that may seem not directly on point as to the expression rights of children in schools do make points that are related to the issue and have been cited in the later Supreme Court cases that are more directly relevant. The first of them also provides a still current limitation on the inculcation of values. That case is West Virginia State Board of Education v. Barnette.6 The issue there was a state statute requiring public school student participation in a flag salute. Refusal to so participate was grounds for expulsion. A group of Jehovah’s Witnesses, whose religious beliefs forbid saluting the flag, challenged the requirement, and the statute was held to be a violation of the First Amendment. Speech in the Schools | 229 The Court characterized the question raised as whether or not a ceremony “touching matters of opinion and political attitude” can be imposed on the individual.7 Speaking of the role of public education, the court said “[f]ree public education, if faithful to the ideal of secular instruction and political neutrality, will not be partisan or enemy of any class, creed, party, or faction.”8 On the other hand...