As regular readers of this blog and my former students know, I approach my course on “Law and Public Affairs” through a constitutional lens. There are some obvious reasons for that focus: many of my students will work for government agencies, and will be legally obliged to adhere to what I have sometimes called “the Constitutional Ethic.” Due to the apparent lack of civic education in the nation’s high schools, a troubling number of graduate students come to class with very hazy understandings of the country’s legal foundations.
Freedom of speech seems particularly susceptible to misunderstanding.
The first problem is that a significant number of Americans don’t “get” that the Bill of Rights only restrains government. Walmart or the Arts and Entertainment Channel or (as one angry caller insisted when I was at the ACLU) White Castle cannot be sued for denying you your First Amendment Right to express yourself.
The most difficult concept for my students, however, has been the principle of content neutrality. Government can–within reasonable limits– regulate the time, place and manner of citizens’ communication, but it cannot favor some messages over others. (I used to illustrate that rule by explaining that city ordinances could prohibit sound trucks from operating in residential neighborhoods between the hours of 10 pm and 7 am, but could not allow trucks advocating for candidate Smith while banning those for candidate Jones. I had to discontinue that example when I realized that none of today’s students had the slightest idea what a sound truck was…)
One example I did continue to use was public school efforts to control T-shirts with messages on them. Private schools can do what they wish–they aren’t government–but public schools cannot constitutionally favor some messages over others. This is evidently a lesson that many Indiana schools have yet to learn. A brief article from the Indianapolis Star reports that the ACLU is suing a school in Manchester, Indiana, after a student was forced by administrators to go home for wearing a T-shirt with the text “I hope I don’t get killed for being Black today.”
According to the Complaint, students at the school are allowed to wear T-shirts with Confederate flags and “Blue Lives Matter” slogans. It describes the plaintiff, who is identified only by his initials, as one of the few Black students at the school.
“Schools cannot selectively choose which social issues students can support through messages on their clothing,” Ken Falk, the ACLU of Indiana’s legal director, said in a prepared statement on Monday. “Students do not lose their constitutional rights at the schoolhouse doors. The refusal of the school to allow D.E. to wear his t-shirt is a violation of his right to free speech.”
The school would be within its rights to ban all “message” T-shirts (although I can hear the grumbling now). Favoring certain messages over others, however, is a violation of the principle of content-neutrality –a core precept of the Free Speech Clause that prohibits government from favoring some messages over others.
The courts give school administrators a good deal more leeway than other government actors, on the theory that providing an educational environment requires a larger measure of control than would be appropriate for adults. But there are limits; as Ken Falk noted, and the Supreme Court affirmed in Tinker v. DeMoines, students do not leave their constitutional rights at the schoolhouse door.
Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values. Too many public schools are operated as totalitarian regimes–environments that stress compliance and group-think, rather than teaching critical thinking, acquainting young people with the values of a democratic society, and encouraging civic debate and engagement.
When school officials themselves routinely break the rules, is it any wonder so many young people graduate still unaware of them?
27 thoughts on “Constitutional Rights At The Schoolhouse Door”
Ms. Kennedy, I know you are retiring from teaching soon, but I may have quite a legal case for you to pursue shortly. It is in the works, shall I say…
I believe you mentioned the operative word “control.” This is when one human wants to oppress another human of their rights. The list of justifications is endless.
God’s law versus man’s law.
“Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values.”
To paraphrase Sheila’s comment above, “Far too many Republicans in Congress are more focused on exerting control than on modeling or transmitting constitutional values.”
Question; because every member of Congress has sworn to an Oath of Office to uphold and support the Constitution of the United States of America, how close are their actions – and inactions – to being treasonous? They are of an age and generation who were required to take civics classes and most have had to pass their state law exams to get where they are today; they cannot claim a lack of knowledge regarding the Constitution they swore to uphold. What is this teaching today’s students who are watching this government implode; in part due to the revolving door administration ordered by one White Nationalist mental incompetent? The voucher system is moving education to creationism rather than education based on history and evolving facts. And today’s students and younger generation are watching and waiting to know if they have a future in this country.
I know that Supreme Court justice Robert H Jackson was one of your favorites, and the decision in the case before the courts (West Virginia State Board of Education versus Barnett), where the Board of Education could not force a person to say the Pledge of Allegiance against their First Amendment rights!
Justice Robert H. Jackson’s opinion in Barnette reexamined the purpose and function of public schools, noting that schools serve the essential role of “educating the young for citizenship.” With this in mind, the Court explained its intervention in Barnette as justified by the concern that “small and local authority may feel less a sense of responsibility to the Constitution, and agencies of publicity may be less vigilant in calling it to account.”
Public education, according to the Court, should “not strangle the free mind at its source [or] teach youth to discount important principles of our government as mere platitudes.” Instead, education should enable students to make informed choices about what to believe. The Court echoed the sentiments of Congress that patriotism does not become stronger because it is compulsory but rather when it is voluntarily chosen.
Jackson concluded:———— “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in matters of politics, nationalism, religion, or other matters of opinion[,] or force citizens to confess by word their faith therein.”————-
Jackson famously wrote: “The very purpose of the Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and establish them as legal principles to be applied by the courts.”
The clearest example of Jackson’s fear of unchecked liberty was his “suicide pact” line from Terminiello v. Chicago (1949) in which a speech incited a riot.
Jackson claimed that “[t]his Court has gone far toward accepting the doctrine that civil liberty means . . . that all local attempts to maintain order are impairments of the liberty of the citizen. The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.”
Justice Jackson was definitely a man of deep thought, unlike some of these individuals that are appointed to the Supreme Court today, he had a long history in the Roosevelt administration to be gleaned by those who wanted to know his opinions. Also it was one of the prosecutors at the Nuremberg trial! So, might I ask? Where is our judge Robert H Jackson?
He definitely was one not afraid to go against the grain with his decisions that slapped some of those justices with a conservative bent on the wrist with his proclamations of dissent.
I’m borrowing this clip from MTSU.education First Amendment article; which reads,
Jackson’s defense of the First Amendment was not without its limits, however; he generally advocated judicial restraint.
In his view, the First Amendment freedoms ensured that citizens could make their discontent public so that the subject of that discontent could be addressed publicly. Moreover, although all citizens had the obligation to tolerate and reply to open dissent, no matter how disagreeable, “this concept of liberty had no tolerance of any form of lawlessness, no belief that there could be freedom except under law.”
In addition, the protections afforded by the Constitution “must not be discredited by an interpretation to mean liberty without law. Nothing can do the cause of liberal government more harm . . . than to give . . . the impression that our Bill of Rights is useful only to our enemies or is a mere refuge for criminals.”
In a separate address, Jackson was a bit clearer about his fear of unchecked rights. He argued that classifying the freedoms of speech, press, and assembly as “preferred freedoms” was problematic because communists (and by implication others who advocate the overthrow of the U.S. government) invoke these preferred rights to shelter themselves from legal recourse if they are attacking the government.
This guy was awesome!
Perhaps you should visit buildbackbetter.gov and sign up to work for the new Department of Education as a curriculum advisor for civics. Your core beliefs and integrity are precisely what are missing from our public schools. Your platform and resume’ should qualify you immediately.
We older folks don’t have a moment to lose in imparting our experience and knowledge to the younger generations.
May I submit, Hoosier educators ARE teaching Civics (Senior year Government class) as required by State directives, but the students aren’t retaining it.
While you may not have to be a comedy actor or a Tik-tok style influencer, educators do need to discover ways to make government so inviting these kiddos will want to get involved in it!
On a more serious note, this generation of students have brains that have been totally rewired since they were toddlers. Learning about government for many of them is drudgery because they cannot connect- literally!
Students are visual, auditory or kinesthetic learners and often all three.
My experience over 40 years in education has been that we have to find ways to actively engage their brains, which is never easy, but certainly worth the try on our part.
If staff are still using 1980 styles of communicating information to our students there is no wonder they are tuned out.
Teaching Civics has GOT to be delivered in a way that connects them to the real world.
I once heard an older educator say the students she had always learned it her way with no trouble.
I had to remind her those students left the building a long time ago.
When I was in high school, girls had to wear dresses. One girl was sent home on St. Patrick’s day for because she dyed her hair green.
Free speech is guaranteed by the first amendment. Right speech one of the central ethical principles of Buddhism is goes beyond free speech and addresses the responsiblity of using civil speech.
So how can schools address bullying and not violate the first amendment ? Shall we allow them to cuss at a teacher, call a peer ugly names and threaten them with violence ? What about allowing the to wear a Nazi swastika ?
How can schools create an atomosphere of respect and tolerance and yet uphold free speech?
Adolescents test limits. Their frontal lobes of their brains are not yet fully mature. So they need some guidance and discipline.
You seem to think it’s about authoritarian control. In some cases, that is true. In other cases, it’s about trying to keep 1500
or more adolescents safe and to help them learn impulse control. Perhaps the loss of smaller high schools has not been the wisest choice to ensure quality education and safety of the students.
My mother was valedictorian of her class. There were only 18 kids in her class.
The answer to your questions is: This is why we have rules to live by in complex, modern societies that are overpopulated with people who don’t and will not read.
From the Guardian:
Federal court rejects Trump election lawsuit in Pennsylvania.
“Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here,” Judge Stephanos Bibas wrote for the three-judge panel.
The US district judge Matthew Brann had said the campaign’s error-filled complaint, “like Frankenstein’s Monster, has been haphazardly stitched together” and denied Giuliani the right to amend it for a second time.
“Voters, not lawyers, choose the president. Ballots, not briefs, decide elections,” Bibas said in the opinion, which also denied the campaign’s request to stop the state from certifying its results, a demand he called “breathtaking”.
As John posted in an above quote:
The choice is not between order and liberty. It is between liberty with order and anarchy without either. There is danger that, if the Court does not temper its doctrine logic with a little practical wisdom, it will convert the constitutional Bill of Rights into a suicide pact.
It seems obvious Trump’s “Legal Team” wants a specific result in their favor and will risk the ramifications of anarchy. It would be insulting to adolescents to say the Trump Legal Team is engaging in adolescent behavior. The Trump Legal Team is trying to change the score after the game has ended.
Beth Kallimani; in the 1950’s Government classes were about the structure and function of government. Today, do they include the connection to rights of citizens and their responsibilities as citizens?
Vern,,Mrs.Kennedy is needed as head of justice dept, to review the recent past policy and change it.
this is a fine subject today. living in NoDak, and free speech..being from a soundly educated north east coast (its how ya look at it)and west coast liberal upbringing,living in NoDak has guaranteed view of no speech. seems the influence of past gens have left the free speech at the cafe table or the pulpit. ive been in some lively discussions,as a outsider with my own view, (im not recognized for my views here in NoDak) though it supports the very intrests these people have,my view sometimes says,get off your ass and change it.they dont know how. they have no clue why black people protests,even with travisty such as Mr Floyd,and the view i get from them,wasnt a trump view,its generational. when you dont witness blaintant bigotry against another person in real time,then stay in the dark, it may be your turn next. the education system here in NoDak says you will get to college. in the last decade,the in state colleges here finally have a better balance in diversity. i hope it makes a change down the line. but in NoDak,ill have to ask, why do you still trivialize the race issues,and civil rights? they were obviously denied access to this education..
An excellent primer on the Free Speech Clause.
Conservatives and liberals both argue for policies and practices that violate the First Amendment’s free speech clause. One we’re seeing more of is public officials being fired for expressing unpopular positions in private forums, on their own time. That’s a dangerous road to go down.
We have a President in office now who wants to overturn NY Times v. Sullivan so it’s easier to sue people who criticize him. I don’t think since John Adams have we had a President more hostile to political free speech. (With the possible exception of Woodrow Wilson who actively targeted journalists who reported on the 1812 Spanish flu – which probably originated in Kansas, by the way – or otherwise criticized his administration.)
I have had my differences with the ACLU. But one issue the organization always gets right is Free Speech.
theres people sending money to trumps legal funds and his other,in his pocket first funds.those Guardian stories were real time imformation,and,what not to do. now the Guardian needs to swim upcurrent and grab some information of these funds for trump and investigate them..
one donator wants his $2.5 million donation returned. im sure he`ll get it soon..
One of my favorite misstatements about Free Speech law. Is “you don’t have the right to yell “fire” in a movie theatre. (Or as Speaker Pelosi hilariously said when she mixed up two sayings: “you don’t have the right to yell “wolf” in a movie theatre.)
Well, you don’t have the right to yell “fire” in the theatre not because of the content of the speech, but because the theatre is privately owned and the First Amendment Free Speech Clause does not apply. You not only don’t have the right to yell “fire” in a movie theatre, you don’t have the right to “yell” anything in a movie theatre. In fact, if the theatre is owned by someone who is a Purdue fan and you walk in with and IU shirt, that theatre owner has every right to kick you out.
you have a point,whereas,someone being fired for their views on a private/public site. trumps ideals are pro corprate,and such their policy,and what his admin tried to chnge.many employees today are subject to their facebook page.many new hires in many buisness are now are required to submit their facebook page. ( i was asked on a employment app)and sign policy statements.this is all private,and corprate realities. (corprate,meaning buisness of any kind) im not defending it. but if you want the real world of butt your nose in someomes buisness by goverment,try king george the 2nd,(bush) and his,leadup,to invading Iraq. not only wiretapping everyone,on the net, and silencing the public airwaves,from protests..
Since Indiana is forcing taxpayers to fund religious schools, why aren’t they held to these same standards? If you take tax funds, you should be held to the same rules as public schools.
Vernon, and Jack: Yes, Sheila needs to be encouraged, and/or drafted(lol).
Sheila, there is much to gain from volunteering, as a senior citizen.
I was just having a discussion, with a friend, about the need to teach civics in general education, sent her the link to today’s blog.
I will have to say that a good part of my civic education came outside of school, with the Boy Scouts. Citizenship in the community Merit Badge opened my eyes up to how things were done at a local level. Citizenship in the Nation had me writing a letter to my congressman, and I even got a reply. Citizenship in the world opened my eyes to how different or the same the rest of the world could be.
I remember nothing worth while from high school. It was not until I was in college and I still had required “history” classes to take. I was force to read de Tocqueville and finally started to get a real perspective on how American civics might have been unique.
It is has still taken years, and years to start to see how little I was really taught in school. Luckily I am in a position to teach new Scouts (boys and girls now), some of what it takes to be a citizen.
Beth Kallimani, I believe I catch your drift in your post. Back when I was in College mid 1970’s we had a computer program for our marketing class. Each team had a company to run and we could make various inputs and then see the results. There were several variables we could input. It was far more challenging than just listening to the Professor.
There are far more sophisticated games today, maybe someone will invent a game to build and run a city and have elections, etc. We humans seem to enjoy a good game to play.
jack smith @ 10:45, I believe the saying is, “A fool and his money, soon go separate ways”.
It’s fundamental that democracy and free enterprise both require informed buyers and sellers. Ignorance impedes the function of freedom. Informed means educated.
However both sellers in free enterprise and politicians in democracy can be more successful not by educating those whose support they require but by miseducating them and the means today for them to do that are extensive and professionally developed and can overwhelm people who’s attention is more absorbed by survival or everyday pursuit of happiness. It’s become asymmetrical warfare.
How can that that fundamental dysfunction be righted?
Okay, everyone sign!
Please forward the above petition as I have, Pinterest, Instagram, Facebook, twitter, and any others you can figure out or that you have a membership in.
Also Sheila, I didn’t post a photo because I didn’t know what you would prefer, if there’s something you would like me to add, please let me know!
I am flattered, but please discontinue.
The Bill of Rights does not guarantee free speech; it constrains government from denying it, leaving its other restraints to the laws of defamation. New York Times v. Sullivan established that public figures have a higher bar of proof to establish defamation than proles like me must establish in order to prevail. An old judge told me early on that defamation suits are like a bucket of —-: that the more you stirred it the stinkier it got. I have had exactly one defamation suit in my entire career as a lawyer, which was settled and never went to trial, and it was not subject to NYT v. Sullivan because that case had not yet been decided, and besides, neither party was a public figure in any event. My advice in re contemplated suits in defamation > Try to find some other heading of tortious conduct in which to draft and file your claim.
I’m not an attorney, but I think it would be appropriate to yell “fire” in a crowded venue if there was in fact a fire. Also, if we pay for tickets, and your venue doesn’t provide for our safety, and we’re harmed while there, we will hold you liable. Where money is involved, privacy is limited. The slipped comment that Speaker Pelosi said is something that women understand, and could be a defense.
I agree, Sheila! People (Republicans, especially, it seems, based on Fox News stories) don’t understand free speech. There would be no discussion of “cancel culture” at all if they did. It’s a simple matter: you are entitled to your opinion and are free to express it. (And I’m looking at you, ‘my pillow’ guy.) Great. Similarly, another person is entitled to express their opinion that the first person’s opinion is utter crap (and in relevant cases, they may also say they are not going to buy the first person’s product anymore). Again, great.
So regarding ‘cancel culture’, the fundamental problem is that many people seem to believe that free speech implies that they are free to express any opinion they like, but with no possibility of receiving criticism or consequences. Free speech does NOT imply that everyone must agree with or accept your opinions.
This is one of those areas that can get pretty tricky, pretty fast. For example, can you allow t-shirts with the American flag or Indiana state flag on it but disallow t-shirts with swastikas or the flag of Imperial Japan? Or, if you allow one kind of flag imagery, do you have to allow all of them?
Does the allowance of any flag imagery open the door for all political messaging generally?
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