Academic journal article Texas Law Review

A Civics Lesson

Academic journal article Texas Law Review

A Civics Lesson

Article excerpt

LESSONS IN CENSORSHIP: HOW SCHOOLS AND COURTS SUBVERT STUDENTS' FIRST AMENDMENT RIGHTS. By Catherine J. Ross. Cambridge, Massachusetts: Harvard University Press. 2015. 368 pages. $39.95.

Introduction

"It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."1

With that famous passage, the Supreme Court established the high watermark for protection of public school students' right to free speech. With the publication of Lessons in Censorship some forty-five years later, Professor Catherine Ross forcefully argues that "[a] mix of ignorance about, indifference to, and disdain for the speech rights of students permeates society"2 leading to "rampant constitutional violations that plague our schools."3 Not only does the erosion of free speech in school harm the individual student, Ross argues it also threatens the very core of our democracy when schools fail to model and inculcate the norms of citizenship that include the right to express and the obligation to tolerate a multitude of ideas and perspectives. Simply put, suppression and punishment of student speech threatens to undermine the constitutional bulwark that protected the Tinker and Eckhardt children the days they wore their black armbands to school in protest of the Vietnam War.4 "That [schools] are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes."5

Lessons in Censorship is not only a comprehensive and colorfully written treatment of the Court's student-speech jurisprudence, but it also reminds us that we must remain vigilant in our protection of free speech in the classroom and the courtroom. After bringing clarity to the Court's often opaque student-speech decisions in the wake of Tinker, Ross demonstrates that modern free speech controversies go beyond the schoolhouse gate and reflect the heated battles being waged in the culture wars. Whether it's banning a t-shirt that says "All the Cool Girls are Lesbians" because it's "offensive to some people" in one school district,6 or banning another elsewhere that proclaims "Be Happy, Not Gay" because it disparages a group of students,7 Ross explains that suppression of speech isn't solely a conservative or progressive impulse. Such sensational examples of what Ross calls "pure" speech aside,8 Ross also aims to show how speech that seems less valuable in the marketplace of ideas, such as insubordinate, hurtful, uncivil, or just-plain-offensive speech (what Ross calls sans-gêne speech),9 ought to be protected in schools so long as the speech does not materially disrupt the educational process. Along the way, Ross offers an analytic approach to and ways of thinking about the law that would forcefully protect free expression without creating disruption in school.

Here I first summarize Lessons in Censorship with a focus on its contributions to First Amendment analysis. I then probe Ross's argument that protection of all pure student speech, even that which is hurtful, insubordinate, and offensive, is essential to the school's duty of modeling and transmitting the values of citizenship. Though we must value the robust exchange of ideas, even at the expense of allowing hurtful and disrespectful language, I argue below that we must also ask our schools to convey that the values of civility, mutual respect, and safety for all persons are part of our duties of citizenship. In schools especially, where learning is the central mission, we must ensure that all students feel safe and free from threat or harm so that they are free to learn. Moreover, in the often chaotic hallways of our schools, administrators must constantly make split-second decisions on how to respond to insubordinate or offensive speech that may also be tangled up with perceived threats or subtle conduct. …

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