Representative Tension: Student Religious Speech and the Public School's Institutional Mission
Brown, Josie Foehrenbach, Journal of Law and Education
When litigation erupts from students' interjection of statements of religious belief into school settings, courts face a clash between the school's conception of its institutional character and the multiple constituent identities attempting to coexist within the school community. Among those asserting that their expressive objectives merit recognition as constitutionally protected prerogatives are the child who seeks to speak in religious terms, the child's audience, which may contain persons who do not share the child's faith or who perceive themselves to be attacked by that faith's asserted beliefs, the families of the students involved, the teachers and administrators responsible for regulating school life, and the larger social and political constituencies surrounding the school. As courts work to develop a syncretic reading of the Speech and Religion Clauses in this special context, their efforts to discern which expressive objectives are compatible with a constitutionally anchored school mission usually evoke dissatisfaction and consternation. I attribute this discomfort at least in part to uncertainty about what I describe as the contested representational dimensions of the public school's institutional identity. In its student speech cases, the Supreme Court has incorporated but not fully elucidated the idea that the public school has an institutional mission and that school officials have constinationally sanctioned authority to pursue that mission through the regulation of student messages.1 This lack of a clearly articulated conception of how the Constitution shapes the content of the school's projected institutional mission confounds the resolution of cases involving the regulation of student religious speech.2
As a matter of constitutional law, how is the public school's mission to be understood as having a representational dimension? To allow its policies to mirror the dynamics and demographics of religious life in the surrounding community would be an oversimplification inconsistent with applicable First Amendment principles. I argue that the school should instead be characterized as an institution that aspires to represent a more complex ideal of community that the Constitution itself prods us to pursue. Part of that ideal is an understanding of a public school as a place where children have the opportunity to express their individual and family identities, identities that may or may not place religious belief at their core, while learning to negotiate how to share the school community with others whose identities differ but who have an equivalent^ legitimate claim to membership. As a matter of constitutional practice, the representation of community that is created by the school's institutional response to students' expression will not be devoid of tension, but it will demonstrate that those present strive to reconcile the reality of their heterogeneity with the pursuit of an enduring and respectful relationship.
Ambivalence and uncertainty often permeate encounters with constitutional questions in the public school context as courts and litigants grapple with the tension between two foundational ideas: schools as places where community values are manifested, and schools as places where overarching constitutional values must be enforced, sometimes against fierce opposition from majority constituencies. The tension between these ideas can be understood as reflecting the complexity behind the assertion that public schools are representations of American communities. Local schools simultaneously reflect American communities as they are, often diverse and divided, but, within our constitutional framework, schools must represent the community as it should be if constitutional ideals are fully realized.
This tension surfaces most dramatically in cases in which a person or group seeks to enforce religious orthodoxy by hijacking the school enterprise for that constitutionally illegitimate end. …