The Constitutionality of Mandatory Public School Community Service Programs

Article excerpt

RODNEY A. SMOLLA [*]

I

INTRODUCTION

Proposals for public service programs have long had currency in America, and may be gaining a certain millennium momentum in current public debate. While proposals for national public service programs of varying ambition and scope continue to be debated, [1] at the local level a growing number of U.S. public school districts are implementing community service programs for high school students. [2] Community service programs generally require students to complete a specified number of hours of service as a condition for graduation. [3] In a typical program, a student may be required to complete forty to sixty hours of community service with organizations or agencies on an approved community service list during their high school years. There are often modest academic or introspective components to a community service program, such as a requirement that a student compose a paper reporting or reflecting upon his or her community service. [4]

As with all innovations in U.S. public life, such programs are inevitably challenged in the courts. At first blush, the challenges appear plausible: These programs are forced labor of sorts, an oxymoronic coerced volunteerism, the imposition of a particular philosophic vision of civic duty and community life on the whole student populace, and the cry that this just can't be constitutional is at least colorably serious.

Constitutional challenges to community service programs may be divided into two generic types--those raised by students or parents who object to the requirement of community service, and those raised by students, parents, organizations, or agencies who object to the selection criteria used to include or exclude organizations or agencies eligible to participate in community service programs. The first form of challenge will involve someone who claims to be a "conscientious objector" to compelled community service. The objection may be broadly articulated, contesting the entire idea of coerced community service, or it may be more narrowly conceived, claiming that for reasons unique to a certain student, participation in a community service program of a particular design violates the student's constitutional rights. Broad objections are likely to be grounded in the claim that community service is a form of involuntary servitude prohibited by the Thirteenth Amendment, or a deprivation of the students' or parents ' liberty protected under the substantive due process principles that have evolved from the Due Process Clause of the Fourteenth Amendment. More targeted challenges are likely to be grounded in First Amendment arguments, such as claims that for a particular student, participation in a community service program violates the student's rights of freedom of association, freedom against forced speech, or the free exercise of religion.

Challenges to the selection criteria used to determine which groups are eligible for participation in community service programs may attack either a decision to keep a particular organization on or off of the "approved list" of participants, or a decision to include an organization or agency on the list. Thus, a service program operated by a local church might be excluded by a school board from participation on the ground that inclusion would violate principles of separation of church and state. The church might sue the school board, claiming that the exclusion of the church service program, when other similar programs run by secular organizations are not excluded, violates the Free Exercise Clause of the First Amendment. Or, imagine that a local chapter of the Ku Klux Klan creates what purports to be a community service program, and a school board refuses to include the program, on the ground that the Klan's racist agenda renders it inappropriate for participation in any joint venture with public schools. T he Klan might sue to challenge its exclusion, arguing that such ideology-based decisionmaking by the school board amounts to viewpoint discrimination prohibited by the Free Speech Clause of the First Amendment. …