Inculcation, Bias, and Viewpoint Discrimination in Public Schools

Abstract

This article investigates the latter aspect of the Court's jurisprudence - the concept of improper indoctrination. The subject of public schools and indoctrination has generated much scholarly debate in recent years, and I do not intend to join that specific debate here. Rather, this article makes a fairly narrow doctrinal point about how to interpret and apply the Court's free speech doctrine in light of concerns about possible indoctrination. The article reviews key free speech clause precedent to determine whether the Court imposes a type of viewpoint neutrality requirement for school policies that exhibit bias against religious opinions, political opinions, or opinions on matters related to race. The article argues that concerns about indoctrination expressed as a "no-bias" principle can be used to understand what the Court has already done with respect to free speech in public schools. These concepts can also be used to decide the proper outcome of future First Amendment cases.

Part II of the article identifies the type of bias to which the Court's jurisprudence is opposed, highlighting religion, political preference, and race as the most likely targets. Because such matters go to the heart of a child or adolescent's developing identity, Part II argues that the Court's jurisprudence is particularly concerned about shielding these areas from too much state interference. Part III argues that particularly in the case of religion, free speech safeguards permit students to "push back" against official efforts to enforce orthodoxy and can be helpful for students' developing identities. Part III also answers arguments that religious speech in public discourse is unhealthy and that religious speech threatens to undermine Establishment Clause values. Part IV applies the no-bias standard to a sampling of school speech cases.