Inculcation, Bias, and Viewpoint Discrimination in Public Schools
24 Pages Posted: 22 Jul 2010
Date Written: 2004-2005
The First Amendment prohibition on viewpoint discrimination, a particularly invidious species of content discrimination, represents a consistent theme in the U.S. Supreme Court’s free speech clause jurisprudence. In the elementary and secondary public school context, the Supreme Court has not explicitly applied the doctrinal framework of viewpoint discrimination to a school practice or policy restricting speech. However, in Tinker v. Des Moines Independent Community School District, the Court’s initial application of the First Amendment to student speech in public secondary schools, the Court stated that schools may not fashion students into “closed-circuit recipients of only that which the State chooses to communicate.” The Court’s language in Tinker leaves the reader to understand that there is a line between inculcation and indoctrination – and that the Court can, if called upon, readily distinguish between the two. This article investigates the concept of improper indoctrination and makes a fairly narrow doctrinal point about how to interpret and apply the Court’s free speech doctrine in light of concerns about possible indoctrination. Part I of the article identifies the type of bias to which the Court’s jurisprudence is opposed, highlighting religion, political preference, and race as the most likely targets. Part II argues that particularly in the case of religion, free speech safeguards permit students to “push back” against official efforts to enforce orthodoxy and can be helpful for students’ developing identity. Part III applies the no-bias standard to a sampling of school speech cases.
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