A majority on the U.S. Supreme Court delivered what the minority called "a civics lesson" last week, overturning 20 years of constitutional interpretation that had given students and teachers broad freedoms of speech and expression under the First Amendment.
While reaffirming the court's 1969 decision in Tinker vs. Des Moines that neither "students (nor) teachers shed their constitutional rights of freedom of speech or expression at the schoolhouse gate," the high court nevertheless last week gave wide discretionary powers to school administrators to censor the "style and content of student speech in school-sponsored expressive activities." At issue here are both the nature of students' constitutional rights in schools and the very nature of schools in a democracy.
The recent ruling sprang from a lawsuit filed by high-school students in Hazelwood, Mo., who sought the high court's support after their principal deleted from a student newspaper articles on teen-age pregnancy and the effect of divorce.
The court argued previously that school officials could curtail or discipline student expression only when it "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." Now the court majority has ruled that the First Amendment does not protect student expression and speech when that expression occurs under the financial, curricular or administrative auspices of the school. There, the court maintains, the school acts like any editor or publisher, determining what is appropriate and valid and ultimately what is spoken and read.
Under the current ruling, it seems that arm bands and soap-box addresses during the noon hour are permitted, while discomforting editorials in the school paper, unorthodox campaign speeches for school elections and unwelcome ideas in the classroom are not . . . simply because the latter are supported, directly or indirectly, by the school.
But the decision has even broader meaning for American education, for it reinforces the notion that schools should be apart from life, not part of it; that schools should teach democracy, but not be democratic.
Schools are dominant institutions in the lives of children. There students learn intellectual and academic skills, there students learn to express their views and opinions, there they make friends and often make enemies. Schools, for the students in them, are small societies, public forums in the lives of America's youth.
Previous high court decisions argued eloquently that schools in which rights were restricted for any but the most compelling reasons of safety or order were schools in which democracy and democratic ideals died. In 1943, in Barnette vs. West Virginia, in a ruling that established the right of students to refuse to salute the flag, the high court wrote that because "they are educating the young for citizenship" schools must "scrupulously protect constitutional freedoms of the individual." If not, the court warned, schools would "strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."
The message in Barnette is clear: Democracy must be lived as well as taught in schools, for without the living the teaching is worse than meaningless; it is deceitful and hypocritical. The basic survival of our democracy depends on succeeding generations of citizens who reject the censor and the propagandist and who have learned to speak for what they believe in, even against daunting opposition.
Free speech is cacophonous and ill-ordered; democracy itself is horrifyingly ill-ordered. In the hands of adolescents, free speech and free expression are often experiments in defining their own views and values. But this is how our children learn about freedom: by using it, testing it and feeling the power that it gives. It is the responsibility of schools to sharpen that learning, not to stifle it; to teach kids to drive, not to lock the keys to the car in the kitchen cupboard.
Free expression and free speech have limits. Our schools must engage in active and persuasive teaching about those limits, and there is no doubt that school officials must have means available to sanction student expression that goes too far. But who defines what is too far? In decisions over the last 50 years the Supreme Court has set elaborate standards for protected speech, and teachers and administrators must be able to act swiftly and decisively when student expression violates the rights of others or when it threatens property or safety. I may not cry "Fire!" in a crowded theater, and a student may not cry "Fire!" in a crowded school auditorium.
But the point is that these standards already exist, and they exist for all of us--student, teacher, newspaper editor and politician. To define free speech more narrowly in schools than elsewhere is to deny the very efficacy of existing limits to protected speech and to recast schools as institutions separate and immune from general application of constitutional law. At that moment the teaching of the First Amendment in schools becomes the kind of "mere platitude" that the high court warned us about 40 years ago.
Free speech is a risk, often leading to conflict in schools as anywhere else. Still, in Tinker, the court argued that "our Constitution says we must take this risk, and our history says it is this sort of hazardous freedom that is the basis for our national strength and of the independence and vigor of Americans."
To take away freedom, to constrain individual liberties without clear danger to other individuals or property, especially in schools, is riskier still. What one risks by regulated speech in authoritarian schools is democracy itself. The high court has taken that risk by giving school authorities the ability to teach democratic principles without abiding by them.