Why Student Religious Speech is Speech
52 Pages Posted: 27 May 2008
Date Written: 2007
This article is my contribution to a symposium on The Religion Clauses in the 21st Century, which was published in January 2008 as the opening pages of volume 110 of the West Virginia Law Review. The article responds to Kristi Bowman's symposium contribution, Public School Students' Religious Speech and Viewpoint Discrimination.
After some initial observations on Professor Bowman's paper, especially its treatment of the Supreme Court's decision in Morse v. Frederick, I explain how and why courts and litigants have come to focus on the Free Speech Clause as the primary protector of religious liberty in the public schools. This fact ought to strike us as a bit puzzling. Free speech protections in the public schools are sufficiently weakened that one might expect the Free Exercise Clause to assume greater importance in protecting student religious speech. This is all the more true because of the pervasive availability in the public school context of arguments invoking the hybrid rights exception to the free exercise doctrine established in Employment Division, Department of Human Resources of Oregon v. Smith. Yet Professor Bowman and I fully agree that the Free Speech Clause remains the real workhorse in the protection of student religious speech. In trying to account for this fact, I first review a variety of reasons why hybrid arguments in general, and free speech hybrid arguments in particular, have made little headway in the courts. I then argue that even a stronger reading of the Free Exercise Clause than is reflected in current law would make no difference in the amount of protection afforded to conventionally expressive student religious speech. This is true because most student religious speech must be characterized as speech rather than the exercise of religion; and once that characterization is made, the Free Speech Clause decrees that any preferential treatment of religious speech in relation to secular speech is unconstitutional content discrimination. It follows that student religious speech must be protected only as speech and not as the exercise of religion.
Keywords: student speech, Tinker, Morse, Frederick, bong hits, First Amendment, school law, education law, free exercise, hybrid rights, Yoder, religious speech
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