Academic journal article Brigham Young University Law Review

Morality and Public School Speech: Balancing the Rights of Students, Parents, and Communities

Academic journal article Brigham Young University Law Review

Morality and Public School Speech: Balancing the Rights of Students, Parents, and Communities

Article excerpt

Suppose culturally conservative parents living in a culturally liberal community discover that the local public elementary school is teaching their children that same-sex unions are just as acceptable as traditional marriage. May the parents prevent the school from teaching a message they find undesirable to their children? Consider also culturally liberal parents in a culturally conservative community. Suppose the school teaches evolution and intelligent design side by side as possible explanations for the origin of life. Do objecting parents have any recourse?

What if a parent objects to a school's geography requirement? Must the student still learn geography?1 How about a requirement that each student learn music?2 May a parent opt his child out of any subject, or stop the school from teaching the objectionable material entirely?

The Supreme Court has held that the Due Process Clause of the Fourteenth Amendment protects a parent's right to supervise the education and upbringing of his child, including the right to teach certain subjects that the parent wants the child to learn,3 or to send the child to private school if the parent desires.4 However, allowing this right to give parents a freewheeling line-item veto over a school board's curricular choices is impractical and can lead to absurd results.5 Rather, the major protections of parents' constitutional right to direct the upbringing of their children are the parents' option to enroll their children in private school6 or to home school.7

For children whose parents choose to enroll them in the public schools, school districts and communities (through their school boards) should be given considerable freedom to select curriculum, including moral or value-laden messages. School boards are democratic bodies that are entitled to make decisions that reflect the values of the community, even if a minority objects.

A public school's control over its curriculum is not without limits. School districts, like all government entities, must obey the Constitution. This includes following the Establishment Clause of the First Amendment. Further, schools violate the First Amendment if they suppress student speech in some circumstances, or if they force a student to espouse a moral position. These constitutional limits should not, however, restrict a school's freedom to craft its curriculum in light of community values, regardless of objections by students or parents. So long as communities respect explicit constitutional limits, they should be free to use the public schools to teach the moral principles of the community.

Part I explores the idea that schools should be free to make moral decisions in curriculum choices, argues that courts are poor fora in which to resolve challenges to curriculum, and analyzes the doctrinal underpinnings of some of the major constitutional exceptions to this rule. Part II then explores how this thesis applies in practice, examining and critiquing significant controversies and court opinions in selected areas, including schools' positions on human sexuality and their positions on library book selection. While these areas are fraught with controversy, the rule of the majority (within proper constitutional constraints) leads to better outcomes.

I. PUBLIC SCHOOLS' FREEDOM To TEACH VALUE-LADEN CURRICULUM

Curriculum will always contain value choices of educators. Because morality will inevitably inform curricular choices, communities should be free to decide what moral messages they wish to send, so long as they respect constitutional constraints, such as those forbidding establishment of religion, interference with protected speech rights, or interfering with freedom of conscience.

A. The Inevitability of Morality in Curriculum

A superficially appealing solution to the problem of controversial subjects in public schools would be to avoid controversy altogether by forbidding schools to take a moral or value-laden position on any subject. …

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