Public schools can’t help but curb freedom of expression

Neal McCluskey Director, Cato Institute's Center for Educational Freedom
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It was trending on Twitter all day on Tuesday: #ReligiousFreedomForAll. The impetus was the Sebelius v. Hobby Lobby case being argued before the Supreme Court, and disgust over government forcing people to pay for medical treatments they find immoral. But if people cared about public schooling as much as they do Obamacare, hashtags defending all kinds of freedom would be the daily norm on Twitter.

Just like Obamacare, public schools – government institutions for which all people must pay – regularly violate basic rights. They have to: Among many curbs on freedom, to avoid chaos schools have to have rules about what students and teachers can say, and decisions must be made about what is – and is not – taught.

Consider the nationally covered Easton Area School District v. B.H. case (colloquially known as “I (Heart) Boobies”), which the Supreme Court refused to hear a few weeks ago. It involved two students in Easton, PA, who were suspended for wearing pink, breast-cancer-awareness bracelets that carried the “boobies” message. The district argued that the bracelets, with their intentionally attention-grabbing message, threatened school “decorum” and “the civility of discussion in the classroom.”

As the appeals court ruled, punishing the students violated their speech rights. But the position of the district is understandable: Schools must draw a line so that student behavior doesn’t kneecap their ability to provide the education for which citizens are paying. Indeed, while the speech rights of the Easton students was upheld, Supreme Court precedent limits student speech, allowing public schools to curb it if they decide it is either promoting illegal activities – as they ruled in the recent “Bong Hits 4 Jesus” case – or being too disruptive.

Teachers, too, have had their speech rights curbed. A high school teacher in Batavia, IL, for example, was suspended last year for telling students they had a Fifth Amendment right not to fill out surveys with questions on their alcohol and drug use. Several teachers, in recent years, have been punished for things they’ve expressed on social media, or in class. Some has been insulting about students generally, but written on private blogs of Facebook accounts. Some has been class discussion considered too political or one-sided. All has pitted teachers’ speech rights against either school effectiveness, or taxpayers’ rights not to pay for speech with which they disagree.

Perhaps the most difficult problems, like Hobby Lobby, are connected to religion, including the Constitutional guarantee of equal treatment under the law.

It is logically impossible for public schools to treat the religious and non-religious equally. The schools can either incorporate religion, which many religious people want, or they can be neutral, which is favored by atheists and agnostics. That is why we constantly see battles over prayers at football games or graduation ceremonies, and over the teaching of evolution or creationism. But if public schools incorporated religion, whose would they pick?

This has been a serious problem, even with religion officially irrelevant to schools, in districts with sizeable Muslim populations. Many have major Christian and Jewish holidays off, but are in session on Muslim holidays. New York City has long been struggling with this, facing the quandary, as former mayor Michael Bloomberg put it, that in “a diverse city … if you close the schools for every single holiday there won’t be any school.” New mayor Bill de Blasio recently attempted to remedy the situation, announcing that city schools would be closed on two Muslim holy days. But the Hindu holiday of Diwali? Not yet.

What can be done?

The solution is simple: School choice. Instead of pouring everyone’s tax dollars into public schools, attach it to students and let parents choose institutions that share their values. Let them pick schools that have dress codes that suit their desires for either strict order or free expression. Let them choose institutions where teachers agree to curbs – or they do not – on their speech. Let them select schools that have Muslim days off, or Christian prayers, or no religion at all.

Ultimately, do the opposite of what we’re doing now: Uphold freedom, of all types, in education.

Neal McCluskey is the Associate Director of the Cato Institute’s Center for Educational Freedom and oversees Cato’s Public Schooling Battle Map