Can There Really Be 'Free Speech' in Public Schools?

16 Pages Posted: 13 Mar 2008  

Richard W. Garnett

Notre Dame Law School

Abstract

The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the basic educational mission of public schools, and what are the implications of this mission for officials' authority and students' free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the mission of the public schools? We all recall Justice Jackson's stirring rhetoric in the West Virginia flag-salute case: If there is any fixed star in our constitutional constellation, he proclaimed, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.] But, is this really true - could it be true? - in public schools?

Keywords: Morse, Frederick, Free Speech, Public Schools, Education, Viewpoint Discrimination, First Amendment

JEL Classification: K19, K39

Suggested Citation

Garnett, Richard W., Can There Really Be 'Free Speech' in Public Schools?. Lewis & Clark Law Review, Vol. 12, 2008; Notre Dame Legal Studies Paper No. 08-09. Available at SSRN: https://ssrn.com/abstract=1104722

Richard W. Garnett (Contact Author)

Notre Dame Law School ( email )

Room 327
P.O. Box 780
Notre Dame, IN 46556-0780
United States
574-631-6981 (Phone)
574-631-4197 (Fax)

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