University of Michigan Law School, Public Law and Legal Theory Working Paper Series, Working Paper No. 156
21 Pages Posted: 31 Jul 2009
Date Written: 2008
This Article assesses the alarming proposition at the core of the school’s argument in Morse v. Frederick: that a school has constitutional power to suppress any speech inconsistent with its self-defined 'basic educational mission.' The phrase was taken from an earlier opinion upholding punishment of the 'vulgar and lewd' manner in which an idea was expressed. It would be a very different thing to extend this concept to suppression of the idea itself. This Article explores the extent to which inculcating particular ideas can be part of a school’s mission, and the still narrower set of cases in which suppression of dissent can be an acceptable means of inculcating those ideas. While the Court cannot identify a clear principle that describes all the cases in which student speech can be suppressed, it can identify a clear counter-principle: the right to freely state political and religious ideas is protected. Tinker v. Des Moines Independent Community School District is an essential protection for such high-value speech, and all subsequent cases in the Supreme Court appear to reaffirm this core holding of Tinker. The Court’s public-forum doctrine is no substitute for Tinker; public- forum doctrine would permit even-handed suppression of broad categories of speech. The school’s 'basic educational mission' standard, unless carefully defined and limited in ways the school did not even attempt, would eliminate even the requirement of viewpoint neutrality and substantially repeal the Free Speech Clause in public schools.
Keywords: Free Speech Clause, religious speech, Morse v. Frederick
JEL Classification: K19
Suggested Citation: Suggested Citation
Laycock, Douglas, High-Value Speech and the Basic Educational Mission of a Public School: Some Preliminary Thoughts (2008). University of Michigan Law School, Public Law and Legal Theory Working Paper Series, Working Paper No. 156. Available at SSRN: https://ssrn.com/abstract=1440758