Wednesday, March 21, 2007

Public Schools as First Amendment Institutions?

I've been reading the oral argument transcripts in Morse v. Frederick. Interesting reading. With the luxury of a Wednesday-morning quarterback, I'm not blown away by Kenneth Starr's argument (not that I could do better!); he seems to suggest that while Tinker's rule protecting student political speech should be maintained, there should be some kind of per se carve-out for drug-related speech, presumably for the reasons so eloquently offered by Mr. Mackey. I don't think those two principles sit together well. But let me move past that and focus on a related but different aspect of the argument. In effect, Starr and Edwin Kneedler, the Deputy SG, argue that public schools should be able, "under our policies of federalism . . . and democratic theory[,] to fashion [their] educational mission[s] subject constitutional safeguards." Pursuant to this principle, "a school does not have to tolerate a message that is inconsistent with its basic educational [mission]."

Sound familiar? To those few valiant readers who have struggled through my most recent paper, Universities as First Amendment Institutions: Some Easy Answers and Hard Questions, it should. This is very much the sort of argument I have advanced in the university context, as to both public and private institutions. I have argued that under some circumstances, universities ought to enjoy substantial autonomy to shape their own institutional missions and to regulate speech and other aspects of campus life in accordance with those missions. Leaving aside Mike's thoughtful earlier critique of that approach in an earlier post, let me ask: Does the fact that I have championed such an approach make me a fan of the arguments advanced by Starr and Kneedler? If universities are entitled to be treated as First Amendment institutions and granted substantial autonomy accordingly, are K-12 public schools similarly entitled?

My tentative answer is, not exactly. I am not averse to treating public schools as First Amendment institutions in a variety of ways. But there are important distinctions between public schools and universities, and those differences should shape our legal treatment of those distinct institutions. First, universities are sites for the exchange of ideas, and for the production of free speech, in the form of research, publication, speeches, conferences, and so on. Public schools, on the other hand, primarily serve the First Amendment as sites for the production of the facility for free speech: that is, they teach children so that they will have the capacity to be engaged and active citizens elsewhere and later in life.

That distinction may actually point in favor of the approach that Starr and Kneedler propose. But there are other differences that may point in the opposite direction. One aspect of my institutional approach has tended to be that a variety of speech institutions deserve greater autonomy because they are highly self-regulating, and that self-regulation takes place through a variety of norms and traditions that tend to be fairly stable, fairly disciplined, and fairly protective of and conducive to free speech values. It is not clear the same can be said of public schools and public school administrators, and there may therefore be a greater need to subject them to a greater level of constitutional constraint. Moreover, I tend to assume that there is greater room for a variety of distinct educational missions among universities, and thus greater room for a varying approach to speech rules among those universities. By contrast, it may be that the "institutional mission" of the public school is more uniform, and that this mission requires a more uniform approach to student speech, and thus calls for less deference to a public school's "autonomy," even if there are still substantial reasons to defer to a school administrator's on-the-ground judgment about particular facts. I note that the growing number of magnet schools and other mission-specific public schools might change the validity of this second argument.

In short, I don't think we should discount Starr and Kneedler's argument out of hand, but I think their particular focus on deference to a public school's "institutional mission" is more misplaced in the public school context than it would be in the university context. Deference to a public school administrator's factual judgment in particular cases is different from deference to a public school's general educational mission, and we ought not conflate the two, which I fear their argument does. There is room for a variety of educational missions and corresponding speech regimes in the wider universe of universities, and we can be somewhat assured that deeply settled norms of self-regulation, as well as market forces, will offer meaningful constraints in these circumstances; it is less clear that the same is true in the public school world.

What's my sense of how Morse itself should come out, regardless of the First Amendment institution issues? I think the focus on drugs, or even on some kind of per se rule against advocating illegal conduct, is a dead end. I certainly do not think schools should be free to suppress any and all such messages in any public school location. For example, I think a rule saying that a teacher in a lunchroom can punish a student for telling a table of classmates that he thinks the drug laws should be reformed, or that the President should authorize assassinations even where not legally authorized to do so, would be wrong, although it seems to me Justice Scalia's comments at oral argument almost seemed to favor such a rule. Certainly such an approach would eviscerate Tinker. I would rather see the Court focus on two questions: location (or context) and disruptiveness. Future conduct like that of Frederick in this case could still be prohibited under a reasonable consideration of those factors, it seems to me, without giving administrators a roving license to selectively and clumsily punish student speech in a content- or viewpoint-based manner based on their own, often dim understanding of their educational "mission."


Michael C. Dorf said...

Paul's analysis nicely reverses the usual contrast drawn between university education on the one hand, and elementary and secondary education on the other hand: That the youngsters in the latter have fewer rights--because they are not yet equipped to handle such rights--than do the adult students at universities.

md said...

Paul, I'm curious whether you think that the comparative arguments you make here can be analogized persuasively to the public school affirmative action context. I'm thinking of the Seattle Schools case (and the other one out of the 8th Circuit, I think) that gave public school kids a tiebreaker for race. The arguments relied heavily on the diversity rationale (as you know well, following Grutter, Bakke, et al.).

It seems to me that if one buys into the distinction between the 'first amendment institutional mission' you draw between public schools and universities -- that universities have a primary mission to foster the exchange of ideas while public schools have a primary mission to 'facilitate' the capacity of youngsters to exchange ideas -- then Grutter's diversity rationale in the public school context seems weaker (or at least very different) in the public school context. That is, the institutional mission of the public school isn't so much to actually exchange ideas as it is to facilitate the capacity to exchange ideas.

I don't know that I buy this argument entirely, but I do see a difference between the two kinds of mission. And I certainly see an analogy between the sort of argument you are making and this one.

Sobek said...

Paul, I wonder if your analysis leaves administrators too exposed to lawsuits in the event that they, in good faith but ultimately incorrectly, prohibit certain speech. That is, it seems you are proposing as a rule a balancing of subjective factors, about which reasonable people could differ.

Certainly that doesn't put us in any worse a position than we're in under Tinker, but I like to see rules that are actually, you know, rules, so people can conform their conduct to them, rather than be informed after the fact (and after protracted litigation) whether or not they were acting within constitutional bounds.

Perhaps there's no such thing as a good rule in this case. Certainly I can't think of one -- I'm horrified by either the idea of a school's unfettered right to restrict speech (even in elementary school), or the idea of a student's unfettered right to, for example, advocate unlawful conduct.

As to that latter point, if a student says "I think we should reform/change/abolish the drug laws in this country," nothing about that statement advocates illegal behavior. If a student says "the President should have the right to assassinate foreign government officials," that is not advocacy of illegal behavior.

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