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Visions of Public Education in Morse v. Frederick


Aaron H. Caplan


Loyola Law School Los Angeles

August 4, 2008

Journal of Educational Controversy, Vol. 3, No. 1, 2008
Loyola-LA Legal Studies Paper No. 2008-23

Abstract:     
The US Supreme Court held in Morse v. Frederick (2007) (the "Bong Hits 4 Jesus" case) that the First Amendment allows a public school principal to "restrict student speech at a school event, when that speech is reasonably viewed as promoting illegal drug use." The rule may be straightforward, but the reasoning that generated it is harder to follow.

Supreme Court cases involving the free speech rights of public school students tend to accept two general premises. First, the constitutional right of free speech applies to students while they attend public schools. Second, the protection offered by the constitution may apply in a weaker form in schools than in other settings, if a different approach is mandated by educational necessity. This second premise means that the result in a given case will hinge on a Court's view of what a good education requires - which in turn hinges on a Court's view of what education is for. But unlike the earlier decisions, the majority opinion in Morse did not expressly link its legal discussion to a vision of the ideal public education.

This article reviews the major Supreme Court cases involving the speech rights of public school students, with an eye toward identifying their beliefs about the proper purpose and methods of secondary education in a democracy. Beginning with the cases in the 1940's involving the rights of Jehovah's Witnesses to refrain from the Pledge of Allegiance, the Supreme Court typically aligns itself with one or another view of the ideal public education. When the Court believes that the purpose of education is to create a homogeneous populous with shared cultural values, it tends to affirm the authority of school officials to discipline nonconforming students. This occurred, for example, in Minersville School District v. Gobitis (1940), the decision upholding an expulsion of Jehovah's Witness children. When the Court believes that the purpose of education is to create autonomous citizens who use critical thinking skills to challenge orthodoxy, it tends to affirm the speech rights of students. The archetype of this type of case is West Virginia State Board of Education v. Barnette (1943), which reversed Gobitis and announce a right against compelled speech.

Morse differs from its predecessors in not acknowledging in any overt way its beliefs about the role of education. However, its decision indicates agreement with the homogenization principle of Gobitis.

Number of Pages in PDF File: 13

Keywords: First Amendment, Education, Student Rights, Student Speech, Tinker, Fraser, Bethel, Hazelwood, Kuhlmeier, Mergens, Brandenburg

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Date posted: August 7, 2008 ; Last revised: August 13, 2008

Suggested Citation

Caplan, Aaron H., Visions of Public Education in Morse v. Frederick (August 4, 2008). Journal of Educational Controversy, Vol. 3, No. 1, 2008; Loyola-LA Legal Studies Paper No. 2008-23. Available at SSRN: http://ssrn.com/abstract=1201869

Contact Information

Aaron H. Caplan (Contact Author)
Loyola Law School Los Angeles ( email )
919 Albany Street
Los Angeles, CA 90015-1211
United States
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