Table of Contents Introduction I. The Curriculum Bans A. "Don't Say Gay" Laws B. Critical Race Theory Bans II. Existing Free Speech Doctrine A. Teacher Claims 1. The pre-government speech Pickering-Connick test 2. The post-government speech Garcetti test B. Student Claims 1. Audience rights generally 2. Audience rights of public school students: Pico and Hazelwood 3. Lower courts divided 4. Student claims under Pico -Hazelwood standard III. Theory A. Government Speech Overlooking Private Speakers 1. Harm 2. Solution B. Government Speech Overlooking Private Audiences 1. Harm 2. Solution a. Government's monopoly b. Government's duty c. Audience's captivity d. Audience's vulnerability Conclusion
Introduction
The Supreme Court has long recognized that states enjoy wide latitude in shaping public school curricula. (1) Recently, states have used that power to pass laws censoring entire topics and viewpoints. "Don't Say Gay" laws, first passed in Florida with similar laws proposed in multiple states, (2) ban teachers from discussing sexual orientation or gender identity. (3) Anti-critical race theory laws, introduced in most states and enacted in at least eighteen, (4) forbid teaching "divisive concepts" that lawmakers associate with critical race theory (CRT). (5)
Unlike curricular decisions about whether to teach cursive writing or to require geometry in ninth or tenth grade, these laws appear to be motivated more by politics than pedagogy. Florida's "Don't Say Gay" law was among a slate of anti-LGBTQ laws championed by an administration campaigning against all things "woke." (6) The CRT bans, which misconstrue many of the actual tenets of critical race theory, (7) are perhaps best understood as a backlash to anti-racism campaigns, especially the Black Lives Matter movement. (8)
Both sets of laws undermine the education of millions of public school students. By effectively chilling examination of African American history and eliminating discussion of widespread, systemic racism in the United States, CRT bans deprive students of a deep understanding of America's history of racism as well as its continuing presence and impact. (9) Because of "Don't Say Gay" laws, students will not learn about the civil rights movement for the LGBTQ community and will lose a forum to discuss their own identities and experiences. (10) The censorship also hinders students from acquiring the critical analysis skills that can only be developed by fully analyzing complex topics. (11)
These content-based bans invite Free Speech Clause challenges. Normally, laws that censor specific subjects trigger strict scrutiny and fail. (12) These laws, however, may trigger no scrutiny at all. Under the evolving and expanding government speech doctrine, government speech is not subject to any free speech scrutiny, (13) enabling state defendants to assert that curricular speech is essentially the government's own speech and therefore outside the protection of the Free Speech Clause. (14)
Teachers charged with implementing the curriculum might counter that these mandates abridge their speech rights. However, a teacher's speech pursuant to official duties--the speech uttered while carrying out their paid job responsibilities--is considered government speech. (15) Although an academic freedom exception may protect professors at the postsecondary level, (16) it is unlikely to cover K-12 public school teachers. (17) Students might assert that the curriculum bans affect their free speech right to receive information, but that right has not yet defeated a government speech claim and may face an uphill battle in the public school curriculum context.
Granting the government complete control over any speech that may be classified as the government's--regardless of the free speech interests in that speech of other speakers or its audience--results in what I have termed "First Amendment capture." (18) The unreviewability of the curriculum bans' censorship presents a prime example. First Amendment capture occurs when contested speech is categorized as government speech, thereby allowing the government to suppress certain viewpoints. (19) The term "capture" comes from "agency capture," which occurs when regulated entities gain control of the agency meant to oversee them. (20) For example, the Food and Drug Administration, charged with regulating the food industry, becomes "captured" if it falls under the influence of the food industry and its lobbyists. First Amendment capture occurs when speech becomes controlled by the government when the Free Speech Clause should be regulating the government. (21)
This Essay argues that the government speech doctrine overreaches in at least two ways. First, it classifies as "government speech" speech that should be thought of as mixed speech--that is, speech with both government and private speakers. (22) Second, it classifies as government speech streams of speech that the audience has as much a stake in, if not more, than the speaker. In both cases, the Essay concludes, the speech should be subject to some level of Free Speech Clause review.
Part I describes the curriculum gag rules and their effects. Part II explains that free speech challenges brought by teachers will likely fail and challenges brought by students face an uncertain path, in large part due to the government speech doctrine. The result is a paradigmatic example of First Amendment capture. Part III advocates for two changes to the government speech doctrine. First, speech with both private and governmental speakers should not be deemed government speech immune to review. Second, even when the government alone speaks, the audience's free speech interest should, when weighty enough, trigger free speech review. The Free Speech Clause, after all, protects the free flow of speech, not just speakers.
One final note: This symposium Essay focuses on potential free speech challenges to these content- (and viewpoint-) based curriculum laws. It does not address other constitutional challenges, such as due process challenges arising from the vagueness of the laws (23) or equal protection challenges based on discrimination against a protected group. (24)
I. The Curriculum Bans
In contrast to curriculum regulations that detail topics and skills public school students should master, these state-level curriculum bans excise certain subjects and viewpoints from the public school curriculum. The "Don't Say Gay" laws target sexual orientation and gender identity while the CRT bans target race and race discrimination.
A. "Don't Say Gay" Laws
Nicknamed the "Don't Say Gay" law, Florida's Parental Rights in Education Act states that "[c]lassroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur." (25) The prohibition, which originally covered kindergarten to third grade public school classes, was subsequently extended to the twelfth grade. (26) Teachers who violate the law put their employment and their teaching licenses at risk. (27) Many states have proposed similar laws, (28) with six additional states succeeding by the end of 2023. (29)
School districts have interpreted the regulations to require cleansing classrooms of any books with LGBTQ characters, even if they are penguins or bunnies, (30) as well as any indications of support for LGBTQ students like "safe space" stickers. (31) Miami-Dade County's school district ceased recognizing October as "LGBTQ history month" on the grounds that it conflicted with the law. (32)
The bans, with their vague language, also chill speech that is not directly forbidden. When people are unsure when their speech crosses the line into illegality, they will err on the side of caution and steer far clear of the line, thereby self-censoring more than what is actually required by the law. (33) Florida teachers are hesitant to discuss same-sex families or display LGBTQ symbols like pride flags or rainbows. (34) One school district took down a video about LGBTQ bullying. (35) Uncertainty also led schools to cancel AP Psychology because its developmental psychology section covers sexual orientation and gender identity. (36) As one Florida teacher observed, "We're all nervous." (37)
B. Critical Race Theory Bans
Even more states have enacted or proposed CRT bans. (38) Critical race theory arose in law schools to address why racial inequalities persist despite civil rights laws banning race discrimination in areas ranging from education to housing to employment. (39) The answer, CRT posits, is structural racism. CRT does not deny the existence of intentional racist acts by individuals, but it focuses on the ways that institutions or societal structures, including the law, perpetuate racial disparities. (40) Indeed, CRT maintains, structural racism is so widespread that the United States cannot be fairly described as a land where opportunity is equal and where effort and ability alone determine success. (41) Consequently, insisting on colorblindness only ignores deeply embedded structural racism. (42)
The CRT bans themselves draw inspiration from a 2020 Trump executive order which prohibited funding any federal civil service training that promotes a list of nine "divisive concepts." (43) These same concepts--the Trump Administration's understanding of critical race theory--appear, often word for word, in most of the state-level bans on critical race theory in public schools. (44)
Some concepts ban making assumptions about individuals based on their race, (45) such as that one race is inherently superior to another (46) or that an individual's moral character is determined by their race. (47) Ironically, these represent important civic values that CRT theorists would also support.
Others prohibit blaming individuals for the acts of their racial forebears. (48) Also forbidden is teaching that "any individual should feel discomfort, guilt, anguish, or any other form of psychological...
