Lessons in Censorship

Public schools, we all agree, should teach civics and promote democracy, including respect for constitutional rights. Unfortunately, regardless of the official curriculum, schools routinely teach students through censorship and punishment that those in charge decide what may be said.

In Lessons in Censorship: How Schools and Courts Subvert Students' First Amendment Rights, George Washington University law professor Catherine Ross presents and analyzes dozens of legal cases concerning the free speech rights of students in K-12 public schools. She also provides a convincing critique of the state of the law, an urgent warning about what students experience in school, and concrete suggestions for protecting student speech.

Ross does not address censorship of college students, which has been much in the news over the past year. But her book is an important reminder that censorship of students begins long before they get to college. She organizes her presentation around five key U.S. Supreme Court decisions.

In West Virginia v. Barnette (1943), the Court ruled that public schools must respect the First Amendment right of students not to participate when the class salutes the flag and recites the pledge of allegiance. The decision was justified on the basis of fundamental principles of free speech, personal autonomy, and the constitutional protection of individual rights. It remains a classic and oft-quoted statement of those principles.

In Tinker v. Des Moines (1969), the Court ruled that public schools must respect the First Amendment right of students to wear black armbands to protest U.S. violence in Vietnam. Setting a relatively stringent standard known since as the Tinker test, it ruled that student speech is protected by the First Amendment provided it does not disrupt the operation of the school or violate the rights of others.

Tinker came at a high point of judicial protection for individual rights. In subsequent decades, as the Supreme Court became more conservative, it increasingly deferred to government authority by reversing or narrowing earlier decisions protecting individual rights. Although Tinker has not been reversed, its scope has been substantially limited by three subsequent Supreme Court decisions.

In Bethel v. Fraser (1986), the Court upheld the authority of a school to punish a high school student who gave a sexually suggestive speech at a school assembly. Schools have since banned and punished a wide range of speech deemed offensive; courts have often, though not always, rejected First Amendment challenges.

In Hazelwood v. Kuhlmeier (1988), the Supreme Court upheld the authority of a high school principal to censor the school newspaper. Ever since, schools have taken their authority over school-sponsored speech to justify censoring or punishing any speech associated with the curriculum, including student speech in class. Unfortunately, federal courts have generally upheld broad school authority over curriculum-related student speech.

In Frederick v. Morse (2007), involving a banner that said "Bong Hits 4 Jesus," the Supreme Court upheld school authority to punish student advocacy of illegal drug use, thus creating a new exception to the First Amendment. Although the opinion concerns nonpolitical speech about drugs, schools construe it broadly and courts generally defer to the judgment of school officials about what needs to be censored.

In summary, schools interpret the three later decisions as broad exemptions from First Amendment law. Unfortunately, federal courts often, though not always, let them get away with this, leaving Tinker to apply only to incidental speech in the hallways and cafeteria that does not offend anyone or question school values. As a result we teach the next generation lessons in censorship that contradict and undermine our claims to value liberty and democracy.

What can we do? Educators should respect free speech. States should pass laws to protect student speech, as some already have. Courts should recognize the core principles of Barnette and Tinker and interpret the subsequent restrictions of their scope narrowly as limited exceptions to basic principles of free speech.

Students, Ross argues, best learn the meaning and value of constitutional rights by "living liberty" during their time in school. If we're serious about civics and democracy, we should insist that public schools teach respect for individual rights and show that they mean it. For more, read the book.