SEATTLE UNIVERSITY LAW REVIEWVolume 22, No. 3WINTER 1999
Guarding the Treasure: Protection of Student Religious Speech in the Classroom
Chad Allred(fn*)
I. Introduction
In February 1996, New Jersey first-grader "Z.H." was rewarded for his reading skills. Z.H.'s teacher, Ms. Oliva, allowed students reaching a certain reading proficiency to read a book of their own choosing to the rest of the class.(fn1) Z.H. chose to read "A Big Family," a story adapted from Genesis included in The Beginner's Bible.(fn2) "However, because of its religious content, Ms. Oliva did not allow Z.H. to read the story to the class. Instead, although the other students were allowed to read their nonreligious stories to the class, he was allowed to read the story only to Ms. Oliva."(fn3) After unsuccessfully requesting that Z.H. be allowed to read his story to the class, Z.H. and his mother filed suit against the local Board of Education and the State Department of Education alleging a violation of "Z.H.'s rights to Freedom of Expression under the First Amendment."(fn4) The district court granted the defendants' motions for judgment on the pleadings.(fn5) The Court of Appeals for the Third Circuit affirmed without comment.
While it is pleasing to recall that students and teachers do not lose their constitutional rights at the schoolhouse gate,(fn6) we know that students and teachers do not enjoy their constitutional rights as fully within the schoolhouse as when they are outside of it. Within the American schoolhouse, the robust freedoms of religious exercise and of speech are restricted. C.H. v. Oliva highlights the difficulty of determining how tight this restriction must be, especially when the conduct at issue is not only within the schoolhouse, but within the elementary school classroom.
Freedom of speech was clearly important to the framers of our Constitution and has remained a valued freedom over the past two centuries. It is understandable that Z.H.'s family would sense that something had gone awry when Z.H. was not allowed to read his story. Although Z.H. does have a right to some protected speech within the classroom setting, it is also clear that the framers valued religious liberty. Part of their plan to protect this liberty was the Establishment Clause of the First Amendment-an effort to leave religious choices within the hands of citizens and out of the reach of government. Thus, it is understandable that the school district may have seen it as the district's constitutional duty to prohibit Z.H. from reading his story. Moreover, it is understandable that many parents would expect the school district to prohibit Z.H.'s presentation, believing that the Constitution preserves the freedom to send their children to public school without fear that the children will be coerced or proselytized. This tension between the Free Speech Clause and the Establishment Clause is not new. Part of the reason why the tension lingers is the lack of clear standards. Judges and attorneys, not to mention students, parents, and teachers, are left to wonder if and when one clause has priority over the other and what the standards are for making such a decision.
Accepting Oliva as a paradigm example, this Article attempts to ease the Free Speech Clause-Establishment Clause tension in the context of student religious speech within the public classroom. In Part II, momentarily leaving the Establishment Clause aside, this Article evaluates the degree of freedom which Z.H. and student speakers like him have to speak within the elementary school classroom and asserts that where student expression is not school-sponsored and does not occur in a "nonpublic" forum, Tinker v. Des Moines Independent Community School District(fn7) governs the scope of protection for this expression. In Part III, this Article examines the Establishment Clause defense to determine whether it acts to prohibit religious speech such as Z.H.'s and argues that, guided by Capitol Square Review and Advisory Board v. Pinette,(fn8) courts should not apply the Establishment Clause to student religious expression in the classroom.
This Article makes two observations, both in Parts II and III, that have received insufficient attention in the academic literature and in the courts. First, students in public school classrooms are "captive speakers." Due to compulsory attendance laws, students are "captive" not only when hearing speech, but also when they wish to speak. Adhering to the First Amendment means protecting not only captive listeners, but also captive speakers. Second, in the face of the potential misperception of students that their school endorses the speech of a fellow student, teachers have an extraordinary opportunity to simultaneously disclaim endorsement and teach the fundaments of religious liberty. Rather than treating students as static and incapable of distinguishing between state-sponsored and private religious expression, teachers should explain the distinction, along with the importance the Constitution assigns to religious expression.
II. Free Speech Within the Classroom Walls
The first issue of importance is whether, aside from the Establishment Clause, Z.H. had the right to speak freely in his classroom. If he did not have this right-if the school district could curtail his speech for reasons unrelated to the Establishment Clause-the issue of whether the Establishment Clause may restrict student religious speech in the classroom is irrelevant.(fn9)
In Tinker v. Des Moines Independent Community School District, the Supreme Court considered the right of junior high and high school students to wear black armbands at school in order to protest the hostilities in Vietnam.(fn10) The Court held that the students had the right to wear the armbands at school and that the school authorities could prohibit speech only when they could reasonably "forecast substantial disruption of or material interference with school activities."(fn11) Conduct that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech."(fn12)
The Court stated:The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. There is here no evidence whatever of petitioners' interference, actual or nascent, with the school's work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.(fn13) But the Court clarified that its holding did not apply only to silent expression:Any departure from absolute regimentation may cause trouble. Any variation from the majority's opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, and our history says that it is this sort of hazardous freedom-this kind of openness-that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.(fn14)
Nearly twenty years after Tinker, in Hazelwood School District v. Kuhlmeier, the Supreme Court considered the extent to which school officials can exercise control over the contents of a high school newspaper produced as part of the school's journalism class.(fn15) The Court distinguished the case from Tinker primarily in two ways. First, the Court found that the school newspaper was not a "public forum."(fn16) "Accordingly, school officials were entitled to regulate the contents of [the newspaper] in any reasonable manner. It is this standard, rather than our decision in Tinker that governs this case."(fn17) Second, the Hazelwood Court asserted that Tinker sets forth the standard for appropriately punishing student speech, but not "for determining when a school may refuse to lend its name and resources to the dissemination of student expression."(fn18)
The Court explained:The question whether the First Amendment requires a school to tolerate particular student speech-the question that we addressed in Tinker-is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech. The former question addresses educators' ability to silence a student's personal expression that happens to occur on the school premises. The latter question concerns educators' authority over school-sponsored publications, theatrical productions, and other expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school. These activities may fairly be characterized as part of the school curriculum, whether or not they occur in a traditional classroom setting, so long as they are supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences.(fn19) Thus, the Hazelwood Court indicated that the standard it applied is appropriate (and the Tinker standard is inappropriate) where the speech in question (1) occurs in a nonpublic forum and (2) is...
