Book Review: Speaking Up
“Hey! Teachers! Leave Them Kids Alone”
Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre. Cambridge: Harvard Univ. Press. 2009. Pp. 289. $29.95.
Reviewed by Brannon P. Denning*
U.S. public schools regularly find themselves sued by students alleging violations of their First Amendment rights. The scope of public school students’ free speech rights is notoriously unclear, and the proliferation of technologies that both make communication possible as well as blur the on-campus/off-campus line, moreover, make these cases increasingly difficult. Courts and administrators often struggle to balance students’ speech rights with the need to maintain order and safety in public schools.
University of Georgia law professor Anne Proffitt Dupre’s new book, Speaking Up: The Unintended Costs of Free Speech in Public Schools, tells the story of how the Court got us to this point. The chapters of Dupre’s book take the reader on a guided tour of the Court’s student speech jurisprudence. There is a chapter on each case in the Court’s original school speech trilogy: Tinker v. Des Moines School District (pp. 11-38), Bethel School District v. Fraser (pp. 39-73), and Hazelwood School District v. Kuhlmeier (pp. 74-106). The latest case, Morse v. Frederick also gets a chapter at the end (pp. 230-258). In addition, there are chapters on Pico v. Island Trees Union Free School District, which concerned the removal of books from school libraries (pp. 107-137), a long chapter on religious speech in schools (pp. 138-203), and one on teacher speech rights (pp. 204-229). The chapters themselves are interesting, if somewhat unfocused, featuring detailed accounts of the facts, the lower court decisions leading up to the cases, the arguments presented by the parties in both briefs and in the Court, and close readings of the Court’s majority and dissenting opinions. While there are some interesting bits of information about these landmark cases, there are also a number of distracting digressions on topics as varied as Progressive historians Mary and Charles Beard, anti-bullying efforts, the decision-making style of Byron White, and the life and fate of famed atheist Madalyn Murray O’Hair. Moreover, I found the chapters on the right of school libraries to remove books from circulation and the speech rights of teachers to range far afield of the main topic—the First Amendment rights of public school students. Treating all of these areas as mere subsets of a larger, “school speech” category is misleading because it conflates different doctrines, each with its own set of rules and exceptions. The doctrinal rules governing, say, student speech and those governing speech of government employees (like teachers) have very little in common.
More serious than the presence of detours and its broad sweep, however, is what the book lacks: a sustained argument. At various points, Dupre suggests several downsides to the Court’s cases since Tinker. Early in the book she says that opening the door to First Amendment challenges at school has harmed the ability of schools to educate students. Tinker, she writes, spawned a “legal regime” that “has more costs than are commonly recognized. It has dramatically changed the way public schools operate as they attempt to educate our children, and some of these changes have not benefited students” (p. 10). Later she suggests that expanding student speech rights has harmed democratic accountability by “contract[ing] the rights of other voting citizens” to have schools operate as voters wish them to (p. 31). She also argues that Tinker and its progeny have imposed monetary costs on schools. Schools are forced to expend resources determining whether and to what extent they may act or to litigate cases in an uncertain legal environment. Those costs may lead schools to err on the side of permitting potentially disruptive student speech (p. 87).
Any of these is a plausible critique of the Court’s cases, but each needs more by way of support; none is developed in any detail. On the costs of student speech rights, I was surprised not to find evidence of the size of the cost. A case study, or even data gleaned from briefs filed in school speech cases, would have been helpful to a reader seeking to gauge the size of the costs schools bear as a result of Tinker et al. Dupre seems to assume that readers will simply agree that schools are worse places today than they were prior to the late 1960s when Tinker was decided, and invite the conclusion post hoc, ergo propter hoc. Given her tone at the beginning of the book, I was also confused by her statement at the book’s end that “[t]he school speech story presents no concrete solutions, and there are troubling costs when the line is drawn too far to one side or the other” (p. 258). Her conclusion struck me as excessively wishy-washy given the certitude of the opening chapters.
She also suggests that the Court’s initial decision recognizing student speech rights in Tinker raised more questions than it answered, and that its subsequent decisions not only answered few of those questions, but have tended to further compound the confusion. This is the theme to which Dupre recurs most frequently throughout the book. At one point she observes that, following Pico, “[s]chool officials throughout the country were left with yet another decision with nearly incomprehensible rules, once again plunging them into a sea of uncertainty” (p. 125). That description fits nearly every school speech case the Court has ever decided. Her treatment of the cases provides ample support for the argument that, having opened the door to student First Amendment challenges, the Court has almost willfully declined to provide clear rules that administrators, students, and lower court judges could rely upon when controversies arise. But that means only that students’ First Amendment cases are in good company with a number of other confused doctrinal areas: state action, the dormant Commerce Clause doctrine, standing, and so on.
Doctrinal disarray in constitutional law usually signals that there is uncertainty about the constitutional command those doctrinal rules are supposed to implement. It seems to me that only by carefully considering why we care about students’ free speech rights in the first place, and what limits are consistent with the reasons for granting those rights, will we begin to arrive at workable doctrinal solutions. Perhaps it is time to revisit Tinker’s assumptions about students, rights, and the schoolhouse gates. If public school students’ other constitutional rights (and those of children generally) are circumscribed in service to goals such as safety and order, it is not obvious why First Amendment rights should be an exception. Supporters often cite the need to train students how to exercise those rights as future members of a liberal democracy. But it does not follow from that premise that students should exercise free speech rights on par with, or even approaching, those of adults. “Public school students are not adults,” Dupre observes. “They are still developing cognitively and emotionally. They often make impulsive decisions, and sometimes they make bad decisions about their health and their future” (p. 133). But there is no attempt made to link this observation to any broader normative argument or even to suggest changes to doctrinal rules that take account of these differences between children and adults.
Fears that judicial deference to school officials will convert schools into “enclaves of totalitarianism,” in Justice Fortas’s hyperbolic phrase, are likely overblown. After all, plenty of people who attended private schools whose operations are unconstrained by the First Amendment—and even those who attended public schools under the pre-Tinker ancien regime—seem to have emerged with no less regard for the values of the First Amendment than their post-Tinker, public school counterparts. In any event, pressure from parents could check egregious abuses of authority by school officials. That’s not to say that students should be stripped of all free speech rights. But many commentators who view Tinker as a paradise lost in subsequent Court cases simply assume that Tinker struck the correct balance.
As an introduction to student speech controversies, Speaking Up serves readers fairly well. It probably would be most helpful to either nonlawyers or lawyers for whom constitutional law is a distant memory. But it is largely descriptive, not prescriptive. Dupre’s book recounts how the Supreme Court marched into the student speech swamp; another book will be required to show the way out.
* Professor and Director of Faculty Development, Cumberland School of Law, Samford University. Thanks to Beth Burch, Marcia McCormick, Paul McGreal, Dayna Royal, Brooks Smith, Dan Solove, and Norman Williams for comments on earlier drafts.