Education in Democracy: The Importance of Free Speech in American Public Schools (Guest Post by Ronald C. Den Otter)
My new book, Democracy in Education: The Importance of Free Speech in American Public Schools, is about the importance of the free speech of junior high school and high school students in the U.S., calling into question why the U.S. Supreme Court has treated public schools so differently than colleges for free speech purposes. There are many ways to defend free speech. Instead of defending the free speech rights of students on marketplace of ideas grounds, my focus is on how educational the experience can be when students exchange reasons with their classmates.
The exercise of free speech rights over time can become normalized, not only encouraging students to think for themselves but also exposing them to ideas that they otherwise might not encounter elsewhere. An important part of becoming a citizen in a democracy calls for learning how to deal with disagreement in a pluralistic society like our own, which is characterized by considerable partisan divisions. It may seem counterintuitive that constitutional protection for student speech is even more imperative in the context of secondary education than at the college level, yet the point is that young people must begin to learn how to exercise their free speech rights before it is too late, developing tolerance for ideas that they find repugnant so that they do not immediately think censorship is the only solution for the dissemination of ideas that they find offensive or worse. In this sense, then, there should be much more constitutional protection for the speech of teenagers, not in spite of their youth but because of it.
Not that long ago, schools did not serve as venues where students could learn how to speak their minds. That appeared to change with the Supreme Court’s 1969 decision Tinker v. Des Moines Indep. Community Sch. Dist, but since then the Court has generally moved the country in the wrong direction, and many administrators have taken advantage of these decisions to suppress student speech with insufficient justification, sometimes to discriminate against viewpoints. (I say generally in recognition of the notable positive exception of the 2021 swearing cheerleader case, Mahanoy Area School Dist. v. B.L., although the fact pattern of the case involved the use of social media off campus on a weekend.)
When it comes to student speech, the constitutional status quo must be fundamentally changed. Any real marketplace of ideas, where ordinary people participate, including students, will fall far short of the ideal. Students will make plenty of mistakes, but that is fine. After all, doing so is part of the learning process. We do not want students to self-censor because they fear punishment. Neither do we want school authorities to coerce them into silence.
Censorship has many long-term negative consequences. Frequently, people forget the big picture when they want a false claim or “bad” idea to disappear. Because some and perhaps many school officials will not police ideas fairly, neutrality on their part must be constitutionally required to avoid unacceptable content-based and viewpoint-based restrictions on student speech. Otherwise, far too many learning opportunities will be lost.
In the book, I defend an autonomy-enhancing approach for teenagers who must begin to learn how to exercise their free speech rights sooner rather than later. Extensive restrictions on student speech in an educational environment are antithetical to respect for autonomy and the development of their autonomous capacities. There must be a very strong presumption against allowing school authorities to silence a student who wants to share their thoughts with others orally, in writing, or through expressive conduct. No solution is perfect, but the traditional remedy of counter speech should be assumed to be valid unless proved otherwise. Amid disinformation, which is inevitable, other students can be encouraged to take responsibility for fact checking and to not rely on someone else to do it for them, thereby facilitating the educational experience of separating the wheat from the chaff, a point that John Stuart Mill would have appreciated. The long-term goal is the establishment of a free speech-friendly culture, beyond what the state can or should do. Although judges can raise the constitutional minimum and lawmakers can ratchet up, in a democracy, everyone has a civic duty to improve the free speech norms of their communities and comply with them in practice. No one can do that for them.
Within any classroom, content-based restrictions are inevitable to keep the conversation on the designated subject matter. However, anything that is controversial is worth discussing outside of the classroom. Whether a student participates in such discussions is left up to them. On the campus of a junior high or high school, there should be no such thing as a false idea. That is the best way to think about the dangers of empowering school officials to engage in censorship. When the topic matters, students will want to talk about it, even when some or many of them might be angry or upset and considerable disagreement is unavoidable. The more controversial, the better, when it comes to student speech. No subject should be off-limits.
That is not to say that controversy is intrinsically desirable; its value is instrumental, stimulating interest amid so many other distractions competing for students’ time, most of which are not particularly educational. At a public school, if a topic is uninteresting or unimportant, very few students will pay attention. That many students are not “into” school is the bane of educators, including college instructors, who struggle to induce students to pay attention and do more than the bare minimum. When educators shut down controversy, students cannot avail themselves of the chance to learn why other people do not see the world in the way that they do, often with justification. Educators can take advantage of such situations by urging students to evaluate conflicting beliefs and in doing so, becoming more self-reflective and more willing to take seriously what others say, even when they disagree with them.
While well-intentioned, too many school authorities want to shield students from controversy to avoid discomfort on their part. In the wake of the police shooting of Michael Brown in Ferguson, Missouri, and civil unrest in 2014, many school districts instructed their teachers to avoid the controversy in their classrooms because administrators were more concerned with avoiding a sensitive topic. In some states and school districts, teachers cannot raise controversial issues in a classroom setting and can be disciplined (and even fired) for their extramural speech.
Under these circumstances, it is imperative that students be able to fill the void. These opportunities for expression can help adolescents become habituated to living in a free speech-friendly environment and following its norms. In a culture of Internet celebrities, social influencers, and partisan pundits who become obscenely rich due to their ability to lie, distort the truth, shock, and pander to their respective audiences, students must be exposed to an environment that contains counterexamples of what free speech, at its best, could be. The kind of communication which I advocate and believe is possible encompasses listening, trying to understand others’ perspectives, offering evidence, appreciating nuance, and developing intellectual humility in the face of complexity.
That alternative stands in sharp contrast to our public sphere, where the most uninformed people appear to dominate public discourse, lies and half-truths spread so easily, and personal attacks abound. The point is not that the ideal will be achieved but that so much room for improvement exists. American politics should not be some sort of reality television show, where bad behavior, because it is entertaining, leads to higher ratings. Given their place on the learning curve, the educational objective of the exercise of their free speech rights would be for students to learn to see their future participation in public deliberation in a particular way: not only to put up with ideas that disgust them but also to motivate them to respond with their own counter speech, viewing it as the only acceptable response. Whether they convince those who disagree with them is out of their control. While all people must have realistic expectations about the likelihood that they will persuade others even when they have the “better” argument (or in fact do have it), they can always continue to try when they are playing the long game. And those who disagree with them will do likewise.
In terms of constitutional protection for free speech and public support for it more generally, this moment is not the worst in American history, even though it may seem that way. That said, the American public’s commitment to free speech appears to be weaker than it used to be. Younger progressives do not seem to be bothered much by cancel culture. Republican efforts to remove books from school and public libraries reveal that they, too, are convinced that students should not be exposed to certain ideas. Any degree of bipartisan support for censorship, albeit not concerning the same viewpoints, ought to alarm us when it reveals that the views of many people are unprincipled. On both sides of the political spectrum, a fair number of them are not inclined to respect the autonomy of others by letting them express themselves without the possibility of censure or worse, notwithstanding that they value being able to articulate their own views with impunity.
Above all, this phenomenon reflects a failure to appreciate the importance of the reciprocity that we owe one another as members of the same political community, no matter how awful somebody else’s words may be. People should be able to say whatever they want to say, with extremely rare exceptions where the state’s countervailing interest is compelling. Almost all restrictions on student speech at public schools violate the Constitution and are morally wrong by not respecting the autonomy of teenagers, who should be able to choose what they want to say and how they say it (with narrow exceptions like threats, bullying, cyberbullying, and harassment, including the racial and sexual kinds). Censorship on the part of school authorities at a critical stage of their lives interferes with the development of their autonomous capacities because they are denied the chance, over and over again, to figure out things for themselves.
This book offers an unapologetic normative constitutional defense of the free speech rights of junior high and high school students with the objective of having the Court establish a prophylactic rule for student speech, moving far beyond the constitutional status quo. At present, student speech is underprotected, whereas it must be overprotected or else too much important student speech will be chilled, too many students will be denied the right to express themselves, and too many of their classmates will be deprived of the educational benefits of exposure to their ideas. For now, all of them will be less prepared for the deliberative aspects that the practice of democratic citizenship will demand in the future. A junior high or high school does not differ nearly enough from a public university to warrant such starkly different constitutional treatment. Indeed, anyone who has spent time on a college campus is aware that many college students are hardly more mature or thoughtful than their high school counterparts. After all, many of them are only a year or two removed from high school.
The actual practice of freedom of expression and the communication that results are indispensable to the cultivation of students’ autonomous capacities and those of others. Respect for the value of autonomy on the part of school authorities entails development of the critical thinking skills that constitute an essential part of civic education. The book underscores how the exercise of free speech rights can help teenagers to become more intellectually sophisticated and develop a more tolerant attitude.
It is hard to conceive of a genuine democracy where the vast majority of those who live in the same country do not care about respecting the autonomy of their fellow members and do not value independent thinking. There is a time and a place for limited paternalistic treatment of students. The curriculum should not be left to them when they do not recognize why some subjects are important or understand how they should be taught due to their lack of expertise. Those decisions are best left to professional educators.
By contrast, with respect to student speech, paternalism has no place in a public school. School officials do not necessarily know better (in fact, many of them probably don’t). Many students are as fully capable of exercising their free speech rights as adults are (or are close enough) and must have numerous opportunities to learn how to exercise them responsibly before it is too late. In the famous Tinker case, where Mary Beth and her brother John Tinker were suspended from school for wearing black arm bands to protest the Vietnam War, two of the plaintiffs were fifteen and one was only thirteen. Surely, that someone happens to be older does not mean that they are wiser or better informed about every topic (this was true in my day and still is true today). By high school, teenagers are nearing adulthood and many of them will attain this legal status before they graduate.
The alternative to the robust protection of student speech involves condoning the indoctrination and the infantilization of students, who are not allowed to speak freely, are shielded from certain ideas for their own good, and are told what to think. That alternative is authoritarian. School authorities already are incentivized to overreact and undervalue student speech to avoid controversy. Moreover, they do not always know better. They, too, are fallible.