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Civil Law | Constitutional Law | First Amendment


This work was published in the Tulsa Law Review, which can be viewed at this website:


Seventy years ago, in West Virginia State Board of Education v. Barnette, the United States Supreme Court eloquently held that the state could not compel public schoolchildren to salute the flag while reciting the Pledge of Allegiance. The decision has been heralded as one of the Court’s most significant free speech cases because it acknowledged expansive protection for freedom of conscience. But recently, the United States Court of Appeals for the Eleventh Circuit held that Barnette’s protection does not extend to college students who challenge their public institution’s curriculum because university enrollment is “voluntary.” The impact of this decision is potentially far-reaching. Because academia has recently placed greater emphasis on “real life” education, college students are increasingly constrained to adopt their university’s ideology as their own in order to successfully earn a degree. Indeed, in the last decade, public universities have forced students to lobby for legislation, to provide live counseling, and to embrace political philosophies that reflect the dogmatic preferences of the universities in contradiction to the students’ consciences. As dissenting students around the country are raising compelled speech claims to such requirements, federal courts are increasingly being asked to decide what degree of constitutional protection is available for them.

While few courts have addressed the question directly, the Eleventh Circuit’s so-called “voluntary enrollment” disqualifier entirely forecloses constitutional review of curricular compelled speech claims brought against public universities. But the court misread Barnette and the case precedent that has developed since that decision. Moreover, the Supreme Court has recognized that the First Amendment is implicated when public universities compel student speech in the curriculum-related context, and two federal courts of appeals have done the same in the curricular context. The “voluntary enrollment” disqualifier not only goes against the weight of judicial precedent, but taken to its logical conclusion, would produce devastating consequences for liberty on the university campus and beyond. For if a student waives his right to refuse to affirm state-sponsored ideas when he voluntarily enrolls at college, it is doubtful that other constitutional rights would remain secure. This article maintains that federal courts should reject the “voluntary enrollment” disqualifier and permit judicial review of compelled speech claims aimed at public university curricula.