By Mike Hiestand
It’s lucky for Americans that Revolutionary War patriot and general rabble-rouser Thomas Paine wasn’t a high school student today. Had he penned his incendiary pamphlet Common Sense and posted it online from his bedroom at home, he almost certainly would have been expelled – or worse.
It has been a staple lesson of American civics that we, as citizens of our self-described free and open society, have the right to speak our minds. That freedom, we are told, is particularly important when it comes to expressing our concerns and having our voices heard with respect to how we are governed. We are taught from early on that the right to question and criticize governmental policy and authority without fear of being hanged, drawn and quartered (as happened in Paine’s day in England) – or otherwise punished by those in power is a cornerstone of the American system. And certainly, over the years there have been plenty of opportunities to test our commitment to that principle as disgruntled citizens have expressed their displeasure using words, pictures and other forms of expression that many – and in some cases, most – people would find offensive and disturbing. But, we understand, tolerating speech by others that we don’t like is the price we have to pay to ensure that our speech, which others might deem equally offensive, is protected.
That’s why it has certainly come as a shock to many, not the least of whom is Connecticut high school senior Avery Doninger, that a federal appeals court in May upheld the authority of school officials to punish her for a message she posted to an online, commercial blog from home one evening last year that criticized school officials for canceling (or merely postponing, depending on who you believe) a student concert she and her fellow student government members had scheduled. In what many would see as a deeply American tradition, she called upon her classmates to join her in contacting school administrators to voice their displeasure, which some did. She was frustrated and, as many who have experienced governmental inertia have done before, used a couple of coarse words (though certainly her words were much tamer than those heard in the hallways of her high school or in material found in the school library.) Because of her language and the “disruptive” response to her message, school officials concluded that she had failed to “display…civility and good citizenship” and Doninger, who the court acknowleged was an “accomplished and respected” student was denied her elected position on the student government and the right she had earned to speak at her graduation.
The thing is, Doninger’s blog posting was not libelous. Nor was it obscene (or even close), physically threatening to any individual or in any other way unlawful. It is, in fact, undisputed that the only reason public government officials were allowed to punish her for her off-campus blog posting was because she was, at the time, a student.
For much of this nation’s history, public schools have been charged with the mission of transmitting the principles and ideals of democracy and the First Amendment to each succeeding generation of Americans.
The 19th century educator Horace Mann, widely referred to as “The Father of American Education,” wrote way back in 1845 that: “The great moral attribute of self-government cannot be born and matured in a day; and if school children are not trained to it, we only prepare ourselves for disappointment if we expect it from grown men.”
It was a sentiment that was also once strongly held by the United States Supreme Court. In one of its first opportunities to consider whether and to what degree the First Amendment applied on public school campuses, the Court ruled in 1943 that a Jehovah’s Witness student could quietly refuse to salute the flag because it violated the teachings of his church.
In its written decision, The Court powerfully reminded school officials that the Constitution and the First Amendment were not simply sources for test questions. The Court wrote:
“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…”
Those sentiments were again reflected in the Court’s 1969 Tinker v. Des Moines decision, where the Court upheld the First Amendment right of students to wear black armbands to school as their way of protesting America’s involvement in the Vietnam War.
In an oft-quoted line from the opinion, the Tinker Court wrote that students and teachers do not “shed their constitutional right to freedom of speech or expression at the schoolhouse gate.”
But the Court also went on from there:
“In our system, state-operated schools may not be enclaves of totalitarianism,” Justice Fortas wrote for the Court majority.
“School officials,” he continued, “do not possess absolute authority over their students. Students in school as well as out of school are ‘persons’ under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as the closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of sentiments that are officially approved.”
But, as the saying goes. that was then. This is now.
By the mid 1980’s, the makeup of the Supreme Court had changed and so, too, had a majority of the justices’ beliefs regarding the value of a “hands-on” civics education. In a series of decisions, the Court began to significantly cut back on the First Amendment protections previously thought available to high school students while they were in school. The Court, saying that it was now the job of school officials to ensure that students adhered to the “shared values of a civilized social order” (though making no real attempt to attempt to define what that might mean) said it would largely defer to administrators to determine what student speech would be permitted in school and what would not.
Not content with exerting more control over students on campus during the school day, however, school officials over the past several years have now set their sights on extending their authority to cover student speech and activity around the clock, both when students are on school grounds and in their bedrooms.
The Supreme Court has yet to directly say how much authority school officials are permitted to exercise over students when they are off school grounds and not involved in a school-sponsored activity. Although last year, in Morse v. Frederick (better known by many as the with the “Bong Hits 4 Jesus” case), the Court dodged the question when it upheld the authority of school officials to punish an 18-year-old Alaskan high school student for holding up a banner on a public sidewalk across the street from the high school while the Olympic torch passed through downtown Juneau. The Court conceded the event was not “school-sponsored,” but ruled the event, which students were permitted to leave class to watch – fell into a previously unknown category – “school-sanctioned” – over which it said school officials had the same broad authority.
Without clear guidance from the Supreme Court, however, there is a growing conflict among lower courts faced with the question of deciding where and when and how much authority school officials have over the off-campus lives of their students. Some courts continue to recognize what they believe is a reasonably hard line between in-school and out-of-school student speech and conduct. Other courts, as in the Doninger case, seem to be okay with the idea that the authority of school officials can extend far beyond the schoolhouse gate, allowing them virtually 24/7 authority to punish students for speech that would clearly be protected were the speaker a non-student.
Under this view, student speakers – for no other reason than they are students – are forever relegated to second-class citizen status. Where courts are unwilling to second-guess the actions of school officials, students learn quickly that this thing called “free speech” is anything but. In fact, it can be quite risky, they realize, when they can be punished, as Doninger was, when school officials determine a student has not displayed their version of “good citizenship.”
What a very different – and perilous – civics lesson we are teaching in 2008. It is hard to see how students that are not permitted to question the actions of their school officials will later be inclined to question their elected officials.
As Avery’s mother noted, “This was a 16-year-old girl trying to figure out how to find her political voice, and she did it clumsily. I think high school should be a training ground for citizenship, and if we squash students’ clumsy attempts at political activism, it is a very dangerous thing.”
I dare say, Thomas Paine – who it’s unlikely King George III of England would have described as a “good citizen” – could have said it any better.