Freedom of Speech in School and Prison
Caplan, Aaron H., Washington Law Review
Abstract: Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro level, however, there are subtle but significant differences between the two. These arise primarily from the judiciary's belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules is turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.
It is the rare public school student who has not at least once complained that her school is like a prison, with the principal as warden and the teachers as guards. The trope of school-as-prison appears regularly in popular culture, most often voiced in a tone of rueful irony. For example, in an obituary for actor Patrick McGoohan, a critic wrote that McGoohan' s 1968 production The Prisoner was "the most important television series of my life" because "I was just then working out that my own junior high school was a kind of jail."1 Andy Singer's cartoon succeeds as satire because most people believe that school is not supposed to be like prison. Figure 1. School is supposed to be a site of uplift and optimism, providing students with the mental and social tools to thrive as free citizens. Prison, by contrast, is the antithesis of freedom, a place to quarantine a deviant population for whom our best efforts at education, uplift, and optimism have failed. With these expectations, identifying similarities between the two institutions amounts to an implicit call for change.
By contrast, judicial opinions about freedom of speech compare schools and prisons without irony, and indeed without hesitation. Courts litter their decisions about prisoner speech with citations to decisions about student speech and vice versa. Many judges treat the analogy as if it were innately persuasive, requiring no special justification or explanation.
Michel Foucault would say the judges are onto something. In Discipline and Punish, Foucault traced the historical progression from medieval forms of punishment that exacted retribution on the body of the accused (think torture or public execution) to the modern practice of incarceration.2 The shift was not, Foucault argued, evidence of evolving standards of decency. Rather, a well-developed prison system could simply be a more effective deterrent to wrongdoing by inculcating in prisoners the mental habits of discipline and subservience. Internalizing discipline in young minds is also, he believed, the essential function of the public school. Hence, it is no accident that the prison resembles the school, even down to its architecture: "Is it surprising," Foucault asked, "that prisons resemble factories, schools, barracks, hospitals, which all resemble prisons?"3
This Article explores the analogy between school and prison in constitutional free speech cases. Is the analogy best understood as a mordant punch line or as evidence that the two institutions share a joint mission? In answering this question, I draw on a body of recent First Amendment scholarship debating the degree to which speech rules should operate differently within government-run institutions than they do in society at large.4 The literature often addresses the trio of schools, prisons, and military bases together as prototypical institutions where speakers enjoy less constitutional protection. …