Wednesday, August 30, 2006


Wit from the Bench

I was researching Supreme Court cases regarding the rights of students for an upcoming series on the Constitution when I came across this excerpt from an opinion written by Justice Stevens in the 1981 case of Widmar v. Vincent. In that case, the court ruled that the University of Missouri was wrong to ban the use of campus facilities by religious groups, saying that while the university had the right to set rules, they couldn't single out religion as a banned content area. In his concurring opinion, Stevens sought to emphasize that requiring fairness was not a requirement that schools give up any attempt at critical judgment:

Because every university's resources are limited, an educational institution must routinely make decisions concerning the use of the time and space that is available for extracurricular activities. In my judgment, it is both necessary and appropriate for those decisions to evaluate the content of a proposed student activity.

I should think it obvious, for example, that, if two groups of 25 students requested the use of a room at a particular time -- one to view Mickey Mouse cartoons and the other to rehearse an amateur performance of Hamlet -- the First Amendment would not require that the room be reserved for the group that submitted its application first.

Nor do I see why a university should have to establish a "compelling state interest" to defend its decision to permit one group to use the facility and not the other. In my opinion, a university should be allowed to decide for itself whether a program that illuminates the genius of Walt Disney should be given precedence over one that may duplicate material adequately covered in the classroom.

3 comments:

Brian Fies said...

That's great! My opinion of Stevens (admittedly nebulous to begin with) just improved approximately 400%. Good find, thanks for sharing.

VT Teacher said...

Did you hear about the case in Vermont this year? A student had an antibush t-shirt that showed Bush doing drugs. The school didn't let him wear it and the school was sued for violating the first amendment. The judge decided that the kid is allowed to wear an anti-bush shirt but that the school was okay to ban it because of the drug references.....which has been overturned in appeals court and deciding that the school had no right to do it.

If you didn't actually want students to get it handed to them, you could lead with it and see how many teachers hand it out....Or put it a page in and see how few teachers realize the content.

Mike said...

One of the things that I will be dealing with in the series is that, while Tinker v Desmoines established the idea that “Students and teachers do not shed their constitutional rights to free speech at the schoolhouse gates,” subsequent Supreme Court decisions limited that.

In Bethel School Dist. v Fraser, a young man gave a vulgar nominating speech for a fellow-student at an assembly. The court held that this went over the top, since it was disruptive and the young man had been warned by teachers who reviewed the speech in advance.

Warren Burger, writing for a 7-2 majority, said "It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse. Nothing in the Constitution prohibits the states from insisting that certain modes of expression are inappropriate and subject to sanctions. The inculcation of these values is truly the work of the school, and the determination of what manner of speech is inappropriate properly rests with the school board."

My suspicion is that, if this T-shirt case went to the Supreme Court, the kid would lose. Ditto, incidentally, with vulgar shirts generally.

As it happens, however, I came across the Stevens quote in his dissenting opinion to this case, in which he quoted himself in a footnote. Stevens dissent was based on his opinion that the vulgarities did not rise to the level of being disruptive and that the "warnings" by teachers were too tepid to be relevant. He also objected to evidence that described high school students as "children." Interesting chap.

Short answer: I'll use it once it's made the Supreme Court.