It isn’t clear that there is a single, good libertarian answer to the issue of student free-speech rights in public schools. Libertarianism, it must be admitted, has nothing to say about how best to carry out government interventions. Similarly, there can be no libertarian public school curriculum. However, sometimes the details of a debate can provide meaningful fodder for libertarian reflection, and such is the case in Morse vs. Frederick, coming Monday to the Supreme Court.
It seems Frederick, an 18-year-old-high school student, wanted to get on tv and annoy his principal, simultaneously if possible. So, when the Olympic torch came to his town, he was there to greet it, with a banner reading "Bong Hits 4 Jesus." He achieved all of his goals, as he was noticed by tv cameras and suspended from school. Morse, the principal of his school, said the banner promoted drug use and was religiously offensive.
In terms of promoting drug use, the principal seems correct on the facts, that the banner does promote drug use. As far as being religiously offensive, I’d say the principal is brighter than I am, because I am unable to obtain any religiously meaningful message from the words of the banner. We can grant, though, that it probably was not pro-religion. So the principal seems to have gotten the facts right here. What is the consequence?
Regardless of the question of the existence of public schools, both charges seem incredibly hypocritical when viewed through libertarian eyes. After all, what of a teacher who comes into class with a steaming hot cup of coffee, and sips it, explaining to the students that he needs the caffeine to stay awake? Certainly, he is promoting drug use. The distinction is that the student is promoting illegal drug use, which most libertarians would agree is a distinction without a difference. More to the point, wasn’t there a time when educators did not attempt to settle contentious public questions, such as the status of marijuana, by simply banning one side from being expressed? What kind of stimulating discussions go on in social studies classes in this school if pro-drug messages, such as "the war on drugs should be ended" result in suspension?
One has to work hard to think of an institution more generally intolerant of religion than public school districts. Religious students are forced to recite the dogmas of evolution, and listen in silence as their beliefs are marginalized and belittled. Private prayers are forbidden, while the confessions of the secular faith are required. Students are taught the importance of embracing the open lifestyle, that homosexuality is not only to be tolerated, but loved and respected. Condoms are handed out openly, but speakers who dare mention the dreaded A word are banned. All sorts of alternative lifestyle groups are guaranteed after-hour use of school facilities, while religious groups are excluded. So, it is particularly ironic to see Morse being supported by school boards from around the country in punishing a statement she considers religiously offensive. Perhaps the problem is not at all the insult to religion, but the fact that the student dared write Jesus at all!
Now, the assumption that suspension is a punishment is difficult. In the face of mandatory attendance laws, suspension might be seen, not as a punishment, but as freeing the student from an onerous legal obligation. Nonetheless, the student clearly considered it a punishment, as did the principal, and so for the purposes of this case, we might as well consider it a punishment. This seems to be in line with Austrian subjectivism.
Moving past this hypocrisy, though, there are more absurdities to this case. For one, the entire incident took place off school grounds! An employer who punishes an employee for activities engaged in outside of work, even entirely relevant activities (environmentalist activism, say, for a petroleum engineer) will quickly find himself the subject of an equal opportunity and civil rights investigation. Yet this principal proposes to suspend students for holding strange banners off of school property. Morse argues that, although not a school function, the event is within her domain because, well, the school cheerleaders appeared there. No wonder Bush backs Morse on this case — this is quite similar in form to his absurd comments about Iranian meddling in Iraq. After all, Iraq is subject to American oversight, and meddling restrictions, because the Marines are there.
The case also illustrates well the complete irrelevance of the Constitution, precedent, and laws in today’s legal climate. In Tinker vs. Des Moines, the Supreme Court ruled that students have the right to free speech within the schoolhouse. With this in mind, the following surprisingly clear-headed analysis from Harvard Law professor Martha Minow seems to say it all:
“The student has a better case than the school. But the trend of the Supreme Court has been toward curbing student speech and increasing deference to school administrators."
Well, there you have it. Legally, the student is right. But the Court may rule the other way because, well, it feels like it. Putting it differently, the Court now rules on its own opinions and the politics of the day, without necessarily consulting the law-books.
So, despite there being no clear libertarian answer (although it’s fairly clear which way I lean), free speech cases in schools still are worthy of libertarian discussion. Oftentimes, it is the discussion of the case that can teach us the most or make the most important points.
Joshua Katz [send him mail] was Chief of EMS at the Town of Hempstead Park and Recreation for the past three summers. He has studied philosophy of mind, logic, and epistemology of economics from an Austrian perspective, and is a former graduate student in philosophy at Texas A&M, as well as holding a bachelor’s degree in mathematics. He is presently tutoring and volunteering, as well as reading voluminously, while waiting for Texas bureaucrats to renew his EMS certification. He enjoys a glass of port and a wedge of Brie as a way to safeguard his health, lest he need treatment by a doctor.