Publication Date

2017

Document Type

Article

Disciplines

Law

Comments

This article was originally published in the Journal of Constitutional Law vol. 20, issue 1.

Abstract

Virtually three-quarters of a century ago, the Supreme Court in West Virginia State Board of Education v. Barnette recognized that the First Amendment protects citizens from being forced to speak. Often, new legal doctrines are announced cautiously and narrowly in anticipation of future judicial development. Not so with Barnette. The Court boldly proclaimed that the right to be free from state-compelled affirmation is so fundamental that it stands as the one “fixed star in our constitutional constellation” that cannot be moved. State assertions of power that seek to coerce citizens to affirm government-approved ideas will inevitably fail, except when narrowly tailored to prevent “grave and immediate” danger. The Justices further signified the force of this doctrine by applying it to a curricular exercise mandated by public school teachers—those state officials who regularly require young citizens to speak in our nation’s classrooms.

While the Court has since confirmed the breadth of the compelled speech doctrine in multiple contexts outside of the classroom, its protections are now at risk of being eroded. Over the past seventy-four years, the size and scope of the government’s role in education—particularly higher education—has increased dramatically. The federal judiciary has largely accommodated this growth by granting public university officials more and more deference to their policies and curricular choices. But recently, some courts have extended this deference to dilute Barnette’s scope and force in the public university classroom. Indeed, two federal courts of appeals have held that curricular exercises that coerce college students to affirm official ideas will only face minimal judicial scrutiny when challenged in court. Another court of appeals held that such compelled speech claims are waived entirely when students choose to enroll at a public university. Not only are the circuits split, but neither of these conflicting positions properly respects the constitutional rights of students in the college classroom. Under these approaches, a public university could use its curriculum to force its students to campaign for a political party, lobby for legislation, or even pledge allegiance to a particular ideological position. This is not the legacy of Barnette.

This Article maintains that Barnette and its progeny require more rigorous and nuanced scrutiny—not deferential review—of public university curricular requirements that compel student speech. Only such an approach will permit teachers to teach while respecting the first liberties of college students in a manner consistent with compelled speech jurisprudence.

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