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When Is Viewpoint Discrimination a Constitutional Virtue?

Lyle’s comprehensive post below on today’s argument in Morse v. Frederick, as well as Linda Greenhouse’s article in the New York Times yesterday, understandably emphasizes the unusual fact that an array of religious groups have filed briefs in support of the student who unfurled the “Bong Hits for Jesus” banner.

As Linda notes, “[w]hat galvanized most of the groups on Mr. Frederick’s side was the breadth of the arguments made on the other side.”

The Solicitor General, along with the school, has argued that primary and secondary public schools ought to be permitted to engage in viewpoint discrimination and restrict student speech whenever the “message” conveyed by the student is “inconsistent with the school’s basic educational mission.” So, for instance, on this view a school could discipline a student for engaging in any advocacy of unlawful conduct, or expression of a message inconsistent with the teachings of the school itself, at least where such teachings are “central to a school’s basic educational mission.”

In Morse itself, the speech did not even occur in the school. (The students in question were absent that day, and unfurled their banner on a public street, during a parade, in plain view of other students who had assembled there during a period when the school had “released” its classes to watch the parade.) Thus, the SG’s argument might be read to suggest that students can even be disciplined for public speech conveyed to fellow students, as long as the message conveyed is inconsistent with the school’s “basic educational mission.”

This truly is a bold argument — that the viewpoint expressed by the student can actually be a constitutional justification for the school’s restriction of the student speech. If the Court were to adopt the argument, it would likely sound the final death-knell for the Tinker doctrine, which has been increasingly watered down in recent years. If the argument were credited, for example, then apparently the school district in Tinker itself would and should have prevailed if (i) the student armbands in question read “Dodge the Draft”; or (ii) the school itself had been trying to inculcate patriotic loyalty, or support for the nation’s foreign affairs.

In support of this argument, the SG and the school principally rely on the Court’s 1986 decision in Bethel School District v. Fraser, upholding a school’s right to restrict students from using vulgar speech in a school assembly. To be sure, the Court in that case indicated that a school may prohibit at least some student speech that “would undermine the
school’s basic educational mission.” 478 U.S. at 685. But the Court did not suggest that such speech-prohibition is permissible then the “undermining” of the school’s mission is the result of a substantive disagreement with the curricular and moral lessons the school is trying to inculcatre. To the contrary, the Court in Fraser was very careful to stress that the school in that case was within its rights because, unlike the school in Tinker itself, it had avoided viewpoint discrimination: “Unlike the sanctions imposed on the students wearing armbands in Tinker, the penalties imposed in this case were unrelated to any political viewpoint.” 478 U.S. at 685.

Indeed, the Bethel Court explained that whereas it is entirely appropriate for a school to restrict the mode of student speech — to forbid profanity and lewd double-entendres in order to teach students “the boundaries of socially appropriate behavior,” which “requires consideration for the personal sensibilities of the other participants and audiences” — viewpoint discrimination is, in fact, inconsistent with the core functions of a public school: “These fundamental values of ‘habits and manners of civility’ essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular.” Id. at 681. In other words, the Court in Bethel (and in Tinker) suggested that one of the principal functions of a public school is to encourage (or at least “tolerate”) challenges to the prevailing orthodoxy. But according to the arguments being pressed by the topside briefs today, the fact that a student is challenging the orthodox view is the very reason why his speech may constitutionally be restricted.

The implication of the SG’s argument appears to be that although a school may not penalize student speech because it expresses views unpopular with the majority of the public, it may restrict such speech when the student’s views are inconsistent with the state’s own curricular and pedagogic viewpoints. It’s not hard to see why religious groups would be concerned by such an argument — after all, student speech from a religious perspective is often “inconsistent with” the pedagogy of a public school (indeed, it may often be a direct challenge or rebuke to the school’s curricular viewpoints). Linda Greenhouse: “The religious groups were particularly alarmed by what they saw as the implication that school boards could define their ‘educational mission’ as they wished and could suppress countervailing speech accordingly.”

Safe bet: At least one of the opinions in Morse will quote Justice Jackson’s aphorism from the Court’s most famous case involving the constitutionality of a student’s dissent from the orthodoxy of a school curriculum: “If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion.” But in which opinion will this quotation appear?