The Magazine

Talk Isn't Cheap

When 'free speech' undermines the First Amendment.

Sep 28, 2009, Vol. 15, No. 02 • By MARY GRABAR
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Speaking Up

The Unintended Costs of Free Speech in Public Schools

by Anne Proffitt Dupre

Harvard, 304 pp., $29.95

"A teacher in [a democratic] community," said Plato, "is afraid of his students and flatters them, while the students despise their teachers or tutors."

Among the fears besetting public school teachers today is the lawsuit from a student--a development not anticipated by Plato. But since the 1965 case of Tinker v. Des Moines Independent Community School District, the threat of lawsuits has become a fact of life in our public schools. In Speaking Up, Anne Proffitt Dupre presents a compelling narrative, from that watershed case to the infamous Morse v. Frederick (2007), where high school student Joseph Frederick sued his principal for ordering him to take down his 14-foot banner advertising "Bong Hits 4 Jesus." The sheer fact that a student would provoke school administrators and then sue over his (light) punishment tells how far down the road to Plato's anarchic state we have come--at least in our public schools.

A law professor and former schoolteacher, Dupre understands the motivation behind (and consequences of) such lawsuits in schools that were instituted for, as Thomas Jefferson envisioned, the "common people." Jefferson's concern for an educated and principled citizenry required, as Dupre points out, a set of "core values."

"Core values" were at issue in the Tinker case involving four students, ages 8 to 15. In defiance of school rules they wore black armbands to protest American involvement in Vietnam. But it was the fathers who sued the school district after their children were sent home: Not surprisingly, the Tinker parents were involved in antiwar organizations and SDS. Although school authorities won the case in the federal district court and appeals court, the Supreme Court famously declared that students and teachers do not "shed their constitutional rights to free expression at the schoolhouse gate."

Since then, schools have altered disciplinary practices to comport with Tinker and subsequent cases. Although bong advocate Joseph Frederick did not prevail, the threat of similar litigation hovers, inspiring costly preemptive measures. Even the opinions of some conservative judges and counselors testify to the shift in tenor.

For instance, Dupre notes the "strange bedfellows" that Joe Frederick attracted: the Christian Legal Society and the Liberty Legal Institute, which feared that a broad ruling would give politically correct schools the power to restrain the speech of conservative students. This shift in focus testifies to the radical change in the curriculum and atmosphere in our schools; conservative students now need protection for expressing opinions once considered "core values."

Conservative students also need protection in our universities. There the issue of "academic freedom"--for certain members of the faculty--prevails, and has been championed in such efforts as the AAUP's 1915 resolution against government infringement and the 1952 Wieman case against the requirement that teachers sign loyalty oaths. But professors have morphed from Justice Felix Frankfurter's characterization as "priests of our democracy" to a priestly class that seeks to control the speech of students, and the hiring, promotion, and publication of colleagues.

It's strange what parents might consider "free speech." But court decisions since 1965, and the passage of the Civil Rights Attorney's Fees Awards Act of 1976, made it easier for the father of Matthew Fraser to sue in 1986 on behalf of his son, who had given a speech using pornographic sexual metaphors to 600 of his fellow students. Emboldened teams of parents and students have jumped into other "free speech" arenas involving student newspapers, book "banning," religious speech in the form of prayer, and the Pledge of Allegiance.

What becomes evident, however, is an unconsciously coordinated effort between the curriculum devisers and the legal system, and between teachers and parents. Since 1965 we have come to see children as little adults--but without the responsibilities. As teachers grant more authority to students as "critical thinkers" capable of resolving complex issues, parents treat their children as entirely capable and as worthy of free speech rights as grown-up scholars--and deserving of due respect and honors from their teachers.

Justice Hugo Black's assertion--"our Constitution assumes that the common sense of the people and their attachment to our country will enable them, after free discussion, to withstand ideas that are wrong"--is applied prematurely to children. Dupre notes: