Rebel without a clause: the right "rights of students" in Nixon v. Board of Education and the shadow of freedom under Harper v. Poway.

AuthorEck, Brian D.

INTRODUCTION

[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order. (1)

~W. Va. Bd. of Ed. v. Barnette

The intriguing problems surrounding free speech often involve the permanent tension between liberty and equality present in every democratic republic. (2) Hate speech regulation is an interesting aspect of that tension in American jurisprudence. The "absolutists" on the side of liberty would even defend a Nazi's right to demonstrate, lest their own speech be trampled one day beneath the boots of thought police. (3) On the other hand, some scholars critique liberty on the basis of its discriminatory impact on minorities and the historically persecuted. These critical theorists contend that speech reinforcing existing prejudices is unworthy of constitutional protection. (4)

This Note considers the gray area between the elementary school and the university. (5) One can safely say that grade school children are still developing the faculties necessary to fully participate in the marketplace of ideas and that protecting their development is more important than ensuring robust speech. (6) On the other hand, robust speech is appropriate in the university because of its unique truth-seeking role and the maturity of postsecondary students. (7) But what about high school students? Do they need to be protected from speech like "Be ashamed, our school has embraced what God has condemned ... Homosexuality is shameful--Romans 1:27"? (8)

Although the Ninth Circuit's Harper v. Poway decision was eventually vacated by the Supreme Court, (9) the rule it articulated raises several fundamental questions when contrasted to other cases, such as Nixon v. Board of Education. (10) An adequate analysis of these cases must begin by examining which normative approach is more faithful to the Constitution and weighing the reasons for restricting Harper's speech against the reasons for allowing it. (11) A resolution of these conflicting circuit decisions would require the Supreme Court to determine (implicitly, at least) which values are most important to the maintenance of liberal democracy. (12)

This Note argues that educating high school students to exercise and endure liberty is more important to a public high school's fundamental mission than ensuring equality or comfort. Therefore, even political speech that touches on a student's "core identifying characteristic[s] such as race, religion, or sexual orientation" should enjoy the same constitutional protection during the school day that it would in public. (13) Protecting students from psychological injury is important, but the Court has already developed a way for schools to restrict harmful, worthless speech such as racial slurs without engaging in viewpoint discrimination. The existing student speech doctrine permits schools to control slurs by considering them vulgar or plainly offensive under Bethel School District v. Fraser. (14) Accordingly, the Court should strike a compromise between the absolutist and critical positions. It should apply the rationale of Chaplinsky v. New Hampshire (15) to high schools by holding that speech bearing some value as a step to truth on matters of public concern must be allowed even when it could offend other students "in the most fundamental way." (16) Unless the offensive speech is peripheral to the political message conveyed and its offensiveness clearly outweighs its social value, the speech should be permitted. (17) While the potential for psychological injury might justify broadly protecting younger students, high schools must prepare young citizens for the privileges and perils of our free and disputatious society.

Parts I.A and I.B summarize the judicial interpretation of the free speech clause as applied in the public square and the public schools and argue that the protections and restrictions elaborated by the Court point to truth-seeking and political progress as the most important values fostered by robust public discourse. Part II compares the student speech cases in the Circuit Courts of Appeals and argues that the Supreme Court should take up the issue of hate speech in the classroom again and apply the approach of Nixon v. Board of Education rather than the Ninth Circuit's approach in Harper v. Poway, because inculcating civic spiritedness is particularly necessary in compulsory public schools in order to make meaningful public discourse a reality. (18)

  1. THE VALUE OF FREE SPEECH

    1. Free Speech in the Public Square

      Congress shall make no law ... abridging the freedom of speech.... (19)

      ~United States Constitution

      Prior courts have expanded the scope of the First Amendment's protection well beyond its original interpretation. (20) Today, the free speech clause protects expressive conduct or "symbolic speech" if it evinces an intent to convey a particularized message and is likely to be so understood by those who viewed it. (21) Free speech is so important to liberal democracy that the Court has suspended the general presumption of a statute's constitutionality when it restricts speech. (22) To pass constitutional muster, a speech restriction must be (1) a content-neutral time, place, or manner restriction that targets non-communicative aspects of the speech, (23) (2) a viewpoint-neutral restriction reasonably related to furthering the forum's purpose, (24) or (3) a restriction that can pass strict scrutiny, that is, one that is necessary to advance a crucial government interest and narrowly tailored to that end. (25)

      The First Amendment applies to state governments through the Due Process Clause of the Fourteenth Amendment; thus, school boards are bound to respect free speech. (26) If a school board wants to restrict speech, however, it need not make the same showing as other state actors because the First Amendment must be read in light of the "special characteristics of the school environment." (27) Even so, the First Amendment retains its fundamental character inside the schoolhouse gates. (28) Therefore, to understand when and why a school may restrict student speech, one must first examine the Court's general free speech doctrine to see why the Constitution protects offensive and controversial speech.

      1. Justices Holmes and Brandeis on Danger and Truth

        [T]he fitting remedy for evil counsels is good ones. (29)

        ~Whitney v. California

        The modern pole star of the Court's free speech doctrine appeared when Justices Holmes and Brandeis broke with the Court's earliest free speech decisions. In Schenck v. United States, Frohwerk v. United States, and Debs v. United States, Justice Holmes wrote the majority opinions upholding convictions under the Espionage Act of 1917. (30) Holmes reasoned that the state may suppress speech that presents a "clear and present danger" of "substantive evils that Congress has a right to prevent," (31) such as Socialist exhortations with the intent and the "tendency" or "probable effect" of obstructing the draft during a time of war. (32)

        In 1918, the Act was expanded to encompass speech critical of government policy, such as "'disloyal, profane, scurrilous or abusive language about the form of government of the United States' or 'any language intended to bring the form of government of the United States ... into contempt, scorn, contumely or disrepute....'" (33) Under the expanded Act, a jury convicted a man for publishing pamphlets advocating a general strike to protest the Allied decision to send an expeditionary force to quell the Bolshevik Revolution. (34) When the Supreme Court upheld his conviction in Abrams v. United States, however, Justice Holmes dissented, setting forth a magnetic principle:

        [W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas--that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.... [W]e should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. (35) Although Holmes's "marketplace of ideas" has been criticized for being a pie-in-the-sky approach to law--that it wrongfully assumes that people are reasonable, will listen to minority viewpoints, and then apprehend and adhere to the truth--it expresses a viewpoint that has shaped the free speech debate to this day. (36) Political progress in the nineteenth and twentieth centuries has shown that even the oldest and most self-evident principles were open to question and change; therefore, for Holmes, skepticism became the guiding principle of free speech. (37) The majority of the Court, however, did not believe that a laissez-faire bazaar of ideas was a wise policy, and in 1925 and 1927, during the days of the first "Red Scare," the Court granted the Legislature's definition of "clear and present danger" broad deference. (38)

        In Whitney v. California, (39) the Court's 9-0 decision to uphold the conviction of a Communist Party organizer under the California Syndicalism Act prompted Justice Brandeis to elaborate another famous defense of free speech. Although Brandeis concurred in the result, he disagreed with the rationale:

        [W]e must bear in mind why a State is, ordinarily, denied the power to prohibit dissemination of social, economic and political doctrine which a vast majority of its citizens believes to be false and fraught with evil consequence. Those who won our independence believed that the final end...

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