Posted by Eugene Volokh:
Karns Elementary School Students Barred from Discussing a Certain Subject
During Recess:
http://volokh.com/archives/archive_2005_06_05-2005_06_11.shtml#1118249488
A 10-year-old student and his friends were barred from engaging in a
certain kind of speech during recess at Karns Primary School. The
recess in that school, I'm told, is about 30 minutes long, and
students are generally allowed to play, sit and read, talk, and do
lots of other things. But this student and his friends were barred
from engaging in one particular kind of speech. What is this speech
that a Kentucky school has decided must be banned?
1. Wearing black armbands to protest the war.
2. Displaying a confederate flag.
3. Discussing the Wiccan neo-pagan religion.
4. Wearing insignia that depicted firearms.
5. Something else.
And the answer is . . . #5, specifically discussing the Bible. Those
are the charges levied in [1]a lawsuit filed by the student's parents
(see [2]the Complaint here). The Principal's letter to parents
specifically says that "children could not have a Bible study class"
-- which apparently includes an informal group of a few kids sitting
around and talking in the schoolyard -- during recess; I have seen a
copy of it myself.
I've long been appalled by the willingness of government officials to
discriminate against religious speech this way. It's true that under
the Court's Establishment Clause caselaw the government generally may
not itself engage in religious speech (especially in K-12 schools),
nor may it give preferential treatment to religious speech. But this
ban on government preferences for religious speech doesn't require or
authorize discrimination against private religious speech. Such
discrimination is itself unconstitutional; it violates the Free Speech
Clause, and in my view the Establishment Clause and Free Exercise
Clause as well (though that's less clear than the Free Speech Clause
violation).
Here, the students were trying to talk religion on their own, in a
time and place in which students were perfectly free to talk about
other subjects (sports, television, politics, and so on). This wasn't
an organized class activity. (School officials naturally are entitled
to more control over speech in such activities, for a variety of
reasons.) Any students who weren't interested in talking or hearing
about the subject were free not to talk or hear about it. There was,
to my knowledge, no evidence that the speech would cause material
disruption. And ten-year-olds are perfectly capable of distinguishing
what their classmates say on their own from what the school is saying
or endorsing as true, and the speech in this instance was clearly on
the "classmates say on their own" side of the line.
Unless there's something seriously missing from the news story and the
Principal's letter, there seems to me to be no justification for this,
except an assumption that "separation of church and state" (a rather
misleading phrase) requires the state to suppress speech by students,
who are clearly not the "state." The Supreme Court has repeatedly
rejected this assumption, for over two decades in education generally,
and over a decade as to K-12 education in particular; and so have
lower courts. It bothers me that so many school officials still
haven't gotten the message, and continue to violate students' First
Amendment rights.
References
1.
http://www3.knoxnews.com/kns/local_news/article/0,1406,KNS_347_3826676,00.html
2. http://www.telladf.org/UserDocs/WhitsonComplaint.pdf
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