Table of Contents Introduction I. The Authority of Management and the Authority of Governance II. Managerial Authority in Schools III. The Scope of a School's Managerial Authority IV. The Tinker Settlement V. The Educational Mission of Schools and Off-Campus Speech VI. The Appeal of Ordinary First Amendment Standards Conclusion
Introduction
Courts and commentators seem irresistibly drawn to the fiction that speech is everywhere protected except insofar as it conforms to narrow exceptions like fighting words or true threats. Called by some the "two-level" theory of the First Amendment, (1) and by others the "all-inclusive approach," (2) the fiction has perhaps best been summarized by Justice Souter: "[S]peech as such is subject to some level of protection unless it falls within a category, such as obscenity, placing it beyond the Amendment's scope." (3)
The fiction flies in the face of the obvious fact, long ago noted by Frederick Schauer, that "even the briefest glimpse at the vast universe of widely accepted content-based restrictions on communication reveals that the speech with which the First Amendment deals is the exception and the speech that may routinely be regulated is the rule." (4) The fiction obscures clear constitutional thinking wherever it occurs, (5) but nowhere more so than in the context of student speech.
If a First Amendment scholar were to visit a public school, she would immediately observe an intensely speech-regulative environment, punctuated by periods of relative communicative freedom, perhaps on playgrounds during recess or in the corridors between classes. But in the heart of the school, in the classroom, she would observe that teachers comprehensive control student expression in ways that are inconsistent with virtually every sacred First Amendment doctrine by which we define freedom of speech.
So, for example, the Court has always interpreted the First Amendment "to afford special protection against orders that ... impose a 'previous' or 'prior' restraint on speech." (6) Prior restraints, which require a speaker to receive official approval before communicating, (7) bear "a 'heavy presumption' against their constitutionality." (8) They are "the essence of censorship." (9) Even a novice First Amendment scholar, however, would observe that in classrooms teachers routinely impose prior restraints. Students are forbidden from speaking unless recognized, which typically occurs when they raise their hands and receive official permission. (10)
Black-letter constitutional doctrine also holds that "[s]tandardless discretion to censor is anathema to First Amendment values." (11) The Court has held that "[t]he First Amendment prohibits the vesting of ... unbridled discretion in a government official." (12) Yet a First Amendment scholar would find that teachers govern student expression with virtually unrestrained discretion. Teachers allow some students to speak while suppressing the voices of others. Teachers use flexible professional judgment to guide classroom discussions. (13) As Justice Thurgood Marshall once facetiously noted in an oral argument, even in the absence of statutory authority, a teacher can "tell the children to shut up for the next five minutes, and I don't want to hear a sound out of you." (14)
Another virtually sacrosanct First Amendment principle is that government may not compel persons to speak. Because freedom of speech includes "the decision of both what to say and what not to say," (15) and therefore encompasses the "freedom not to speak publicly," (16) it is a "fundamental rule of protection under the First Amendment, that a speaker has the autonomy to choose the content of his own message." (17) Yet students are routinely required to speak in American classrooms. (18) Not only are students called upon by their teachers to answer questions, but they are regularly assigned homework and take examinations that compel them to explain their views about controversial historical and ethical questions.
The prohibition of content discrimination is another fundamental First Amendment doctrine. The Court has repeatedly emphasized that "content-based regulations," which "target speech based upon its communicative content," are "presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests." (19) This "stringent standard" is meant to express "the fundamental principle that governments have no power to restrict expression because of its message, its ideas, its subject matter, or its content." (20) Yet no one can visit an American classroom without immediately witnessing the continuous content-based regulation of messages. (21) Students are permitted to speak according to content-based criteria of relevance; their expression is assigned and compelled according to content-based criteria of materiality; and their work is evaluated according to content-based criteria of merit. (22)
Although the Court has repeatedly stressed that viewpoint discrimination is "an egregious form of content discrimination" (23) that is "poison to a free society" (24) and strictly forbidden in both limited public forums (25) and nonpublic forums, (26) it is no exaggeration to characterize classrooms as engines for the imposition of selective viewpoints. (27) Students will have difficulty passing their science courses if they believe that the earth is flat (28) or that human evolution is a myth. (29) Students who believe that the Holocaust never happened will not do well in their history classes. (30)
One could multiply such examples endlessly. Yet commentators, citing the famous assertion of Tinker v. Des Moines Independent Community School District that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," (31) nevertheless blithely assert that "students retain broad constitutional rights in school, including the right not to speak." (32) They assert that these rights that can be overridden only "in ... narrow categories--vulgar speech and speech that advocates illegal drug use," as well as in the context of speech in "school-sponsored" events and speech that can reasonably be predicted to cause significant disturbance. (33)
Commentators mysteriously instruct us that students "enjoy[] strong First Amendment protection in school with respect to their adult educators, except in a few specific, limited types of circumstances." (34) Law review articles and notes assert that "[t]he student speech framework mandates that, unless the speech advocates illegal drug use, is school-sponsored, or is lewd or obscene, students retain full First Amendment rights" so long as "their speech does not cause or cannot be reasonably foreseen to cause ... disruption or ... interference with the rights of others at school." (35) They explain that "the exceptions to Tinker make it clear that they are narrow decisions about very specific categories of speech." (36)
Legal scholars take their cue from courts. Tinker itself, quoting Keyishian v. Board of Regents, (37) asserts that the "classroom is peculiarly the 'marketplace of ideas,'" (38) as though students are just as free to speak in classrooms as the New York Times is to publish editorials. Chief Justice Roberts encouraged this strange idea by flatly announcing in Morse v. Frederick that "Tinker held that student expression may not be suppressed unless school officials reasonably conclude that it will 'materially and substantially disrupt the work and discipline of the school.'" (39)
It is no surprise, then, that lower courts regularly emphasize that "school speech" can be restricted only pursuant to "Tinker's 'general rule,' [that] the government may restrict school speech that threatens a specific and substantial disruption to the school environment or that 'inva[des] ... the rights of others,'" with the exception of "three 'narrow' circumstances." (40) Those circumstances involve the explicit categories set forth in Bethel School District No. 403 v. Fraser ("vulgar, lewd, and plainly offensive speech"); (41) in Hazelwood School District v. Kuhlmeier ("school-sponsored" speech); (42) and in Morse v. Frederick (speech "'promoting illegal drug use'"). (43) Some lower courts characterize these exceptions to Tinker as "a narrow accommodation" and a "limited carveout from students' general 'free speech rights.'" (44) Like commentators, courts seem to imagine that student speech is protected unless its regulation can be justified by narrow and strict rules. (45)
It is apparent that something has gone seriously wrong with the constitutional conception of student speech in both judicial opinions and scholarly commentary. It is not true that student speech is free and unregulated unless subject to specific and explicit exceptions. It would in fact be more accurate to say that student speech is pervasively regulated unless there are reasons to exempt it from the comprehensive authority of the school. The question explored in this Essay is how we can make constitutional sense of the actual situation of student speech. We need, in the words of Benjamin Cardozo, "a conception of law which realism can accept as true." (46)
My thesis is simple but radical. It is that the ordinary First Amendment standards to which courts and commentators appeal as a baseline do not apply to schools. Like all government mission-driven institutions, schools are empowered to regulate the speech of those within the scope of their managerial authority as required to achieve their organizational mission. The purpose of schools is to educate students. The obligation of courts is to review school restraints on student speech to determine, first, whether regulated student speech is within the scope of the managerial authority of a school, and second, whether restraints on student speech are required by the legitimate pedagogical purposes of the school. In making...
