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Introduction

As part of her public high school’s required social studies curriculum, Caleigh Wood’s teacher presented her with a fill-in-the-blank assignment concerning a lesson the teacher gave that day on Islam.[1] The worksheet summarized the growth and expansion of Islam, discussed its beliefs and practices, and compared it to Judaism and Christianity.[2] Wood had “to complete certain information comprising the ‘Five Pillars’ of Islam,” including filling in portions of the shahada, a declaration of faith and a core belief of Islam.[3] On the worksheet, the statement read in full: “There is no god but Allah and Muhammad is the messenger of Allah.”[4]

Wood asserted that the assignment “promot[ed] Islam,” while her father instructed her that she was not required to “do anything that violated [her] Christian beliefs.”[5] Wood sued, alleging the assignment violated the Establishment Clause by “impermissibly endors[ing] and advanc[ing] the Islamic religion.”[6] Wood also alleged that completing the assignment would “depriv[e] [her] of her right to be free from government compelled speech.”[7]

The U.S. Court of Appeals for the Fourth Circuit disagreed with Wood. It affirmed the U.S. District Court for the District of Maryland’s summary judgment award in favor of the school officials, holding that “the challenged coursework materials . . . did not violate Wood’s First Amendment rights, because they did not impermissibly endorse any religion and did not compel Wood to profess any belief.”[8] The Fourth Circuit distinguished between reciting the shahada, which it suggested would constitute a devotional practice related to Islam, and filling in a worksheet.[9] Instead, Wood’s teacher asked Wood “to write only two words of the shahada as an academic exercise.”[10] The curriculum did not, contrary to Wood’s claim, compel her “to confess by written word and deed her faith in Allah.”[11]

While the Fourth Circuit reasoned that public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate”[12] under Tinker v. Des Moines Independent Community School District, First Amendment rights in school are “applied in light of the special characteristics of the school environment.”[13] This is because “the educational process itself may sometimes require a state actor to force a student to speak when the student would rather refrain.”[14] So, for instance, a school cannot force a student to profess beliefs with which she disagrees, but it may require a student to make arguments supporting those beliefs as part of her studies.[15] In making this point, it is evident that the Fourth Circuit relied on West Virginia State Board of Education v. Barnette, the seminal case concerning compelled speech in the school setting.[16]

In light of these principles, the Fourth Circuit in Wood v. Arnold cited C.N. v. Ridgewood Board of Education for the proposition that a student’s right against compelled speech “has limited application in a classroom setting.”[17] The Third Circuit in Ridgewood invoked the Supreme Court’s decisions in both Hazelwood School District v. Kuhlmeier and Barnette when considering the compelled speech claim (though, notably, the Fourth Circuit did not explicitly cite the Barnette standard).[18] Under Hazelwood, schools may restrict speech “so long as their actions are reasonably related to legitimate pedagogical concerns”[19] and completing assignments does not require a student to adhere to the conveyed messages.[20] However, Hazelwood is silent on schools’ ability to compel speech.

Though the Fourth Circuit rejected Wood’s free speech claim, neither the Fourth Circuit in Wood nor the Third Circuit in Ridgewood attempted to clarify “[h]ow far a school may go in compelling speech for what it views as legitimate pedagogical purposes.”[21] The Supreme Court has yet to answer that question or grant certiorari to cases seeking an answer.[22] Wood itself was denied certiorari by the Court.[23] As litigants continue to turn to the Free Speech Clause to handle religious speech claims,[24] courts struggle with what standard to use for compelled speech claims involving religious curricula.[25] And, if they opt to use Hazelwood, they may struggle with how to apply it.

This Essay argues that courts should employ the Hazelwood standard, initially created for school restrictions on student speech, for compelled speech claims in the classroom, as opposed to the Barnette standard. Though Barnette is considered the seminal case on compelled speech in schools, the Hazelwood standard better reflects the nuances of the classroom, especially when it comes to religious curricula.

Part I of this Essay explains how courts apply the Free Speech Clause to the public school setting under Tinker, Hazelwood, and Barnette. Part I.A will show that Hazelwood, rather than Tinker, applies in the classroom setting and will explain the Hazelwood standard. Part I.B will detail how different circuit courts emphasize either Hazelwood or Barnette to assess claims of compelled student speech in the classroom and the consequential lack of clarity over which standard to use. In light of the Court’s reasoning in Barnette and Hazelwood and circuit case law, the Hazelwood standard is the proper framework for evaluation of compelled speech in the classroom, but Barnette remains informative to the inquiry.

Part II proposes how the Hazelwood standard should be applied and the extent to which it permits a school to compel student speech in the academic setting. First, under the “reasonably related” prong of Hazelwood, which governs the mechanism by which a teacher may instruct on a topic, the exercise must be part of a mandatory education effort rather than compelled recitation. Second, when assessing the school’s “legitimate pedagogical goals,” academic rather than inculcative goals must be the controlling reason for schools to introduce religion into the required curriculum. While the Court is highly deferential to teachers regarding curricula, it is the academic purpose that generates that deference. However, in this second step of the analysis, Barnette should be considered, as a teacher may not instruct as to compel a belief.

I. The Application of the Free Speech Clause to the Public School Setting

Generally, a school district’s actions to restrict or regulate speech implicate the First Amendment.[26] Three major principles govern a student’s right to free expression. First, under Tinker v. Des Moines Independent Community School District, if independent student speech will substantially disrupt school activities or interfere with the rights of other students, the school may regulate it.[27] Second, schools can restrict student speech in an instructional setting under Hazelwood if reasonably related to legitimate pedagogical concerns.[28] Third, under Barnette, schools cannot inculcate certain beliefs through the compelled expression of orthodox values.[29]

Considering these three principles, this Part first explains that Hazelwood—not Tinker—governs speech in the classroom. Second, by comparing circuit decisions that utilize Barnette[30] and those that utilize Hazelwood,[31] this Part argues that Hazelwood should govern Wood’s compelled speech claim.

A. Hazelwood Over Tinker: Student Speech in the Classroom

Tinker is the seminal case regulating speech in schools.[32] However, it does not govern school-sponsored activities. Instead, Hazelwood governs the classroom and what happens inside it.[33] This Section explains the Court’s reasoning in Tinker and Hazelwood. It then describes the Hazelwood standard, which the Court devised to reflect the needs of the classroom, and its limitations.

In Tinker, the Supreme Court considered the constitutionality of a school’s decision to suspend students for passively wearing black armbands protesting the Vietnam War. The Court held that a school district can regulate student speech if necessary to avoid material and substantial disruption to classroom operations.[34] However, the Court implied that a school may limit otherwise protected speech as part of a “prescribed classroom exercise,” when it asserted that a regulation restricting speech for anything but a classroom exercise would likely violate the First Amendment.[35] Because the Court characterized the student speech in Tinker as pure student expression, it distinguished between how student speech is regulated based on location—inside or outside the classroom—and context—in connection to or separate from classroom activities. As this Essay will establish, student speech is more circumscribed when inside the school and made with respect to classroom activities.

The Court refined the standard for restricting student speech in the school setting in Hazelwood, confining the applicability of Tinker. In Hazelwood, the Court distinguished school-sponsored speech, which “members of the public might reasonably perceive to bear the imprimatur of the school,” from pure student speech.[36] The Court considered a principal’s decision to excise two pages concerning teen pregnancy and divorce from a student-produced newspaper without informing the students and held the decision to be constitutional.[37]

The Court determined that the principal did not violate the First Amendment for two reasons: first, the speech occurred as part of the school’s curriculum and, second, the principal censored it for a legitimate pedagogical purpose.[38] First, the Court found that a school newspaper is akin to a classroom activity or exercise.[39] In doing so, it broadly defined a school’s curriculum as activities that are “supervised by faculty members and designed to impart particular knowledge or skills to student participants and audiences” whether or not they occur in the classroom itself.[40] The newspaper counted as a classroom exercise because of its faculty supervision and use within a journalism class, even though members of the community could obtain the paper.[41]

Second, and more importantly, the Court rejected the applicability of Tinker and determined that a school may exercise authority to decide curriculum content.[42] In particular, the school may restrict student speech in school-sponsored activities if doing so is “reasonably related to legitimate pedagogical concerns.”[43] The Court applied this standard to the principal’s decision. In distinguishing Hazelwood from Tinker, the Court noted that the school may not be required to “affirmatively . . . promote particular student speech.”[44]

The consequence of the Court’s decision in Hazelwood is that while Tinker sets higher constitutional protections for student speech, Hazelwood lowers the bar for educators. Said differently, the Court will allow schools to curtail student speech when it comes to certain classroom activities. The Hazelwood standard appears to afford “wide latitude” to schools as courts tend to “defer[] to the expertise of school authorities in deciding what constitutes a valid pedagogical purpose.”[45] After all, Hazelwood requires merely legitimate (as opposed to compelling) pedagogical purposes, and the purposes need be only reasonably related (as opposed to narrowly tailored). Strict scrutiny, which is typically applied in First Amendment cases and in Tinker, may seem preferable when it comes to school-mandated speech, especially when it relates to religious instruction. However, imposing a more stringent standard than Hazelwood may chill the speech of the school itself, as teachers would lose control over their curricula, and undermine the school’s educational mission.[46] The Court noted this in Hazelwood[47] and likely developed the legitimate purposes standard with these concerns in mind.

Further, since Hazelwood, lower courts have expanded the decision’s scope beyond its facts to curricula more generally. For example, the Tenth Circuit suggested that Hazelwood applies “in the context of a school’s right to determine what to teach and how to teach it in its classrooms.”[48] Likewise, the Sixth Circuit reasoned that “[w]here learning is the focus, as in the classroom, student speech may be even more circumscribed than in the school newspaper or other open forum.”[49]

The only limitation to Hazelwood’s permission of “limit[ing] speech or grad[ing] speech in the classroom in the name of learning” is that the restriction cannot be “a pretext for punishing the student for her race, gender, economic class, religion or political persuasion.”[50] As a result, the Ninth Circuit has reasoned that teachers may “require that a student comply with the terms of an academic assignment.”[51] Even if the student disagrees with the assignment, “the First Amendment does not require an educator to change” it.[52] Hazelwood provides a manageable standard by which courts can scrutinize classroom exercises. Students should not be subject to a curriculum that does not advance legitimate pedagogical goals or modes of instruction that are not reasonably related to those goals.[53] That said, given their expertise and purpose as an educational facility, schools and teachers should still retain some level of control over the curriculum. As long as the school’s restriction on student speech is reasonably related to legitimate pedagogical purposes, the federal courts cannot—and should not—intervene.

B. In Cases of Compelled Student Speech: Use Hazelwood Over Barnette

Though it is clear that Hazelwood applies to restrictions on student speech related to school-sponsored activities, it remains unclear what standard applies when the school seeks to compel viewpoints or speech from students in these settings. Compulsion adds a complication to the analysis of student speech in the classroom. Some, for instance, argue the principles in Barnette derive a “more workable standard” for compelled speech claims.[54] That said, this Section will argue courts should use Hazelwood over Barnette for claims concerning student speech produced by religious curriculum. This Section proceeds in three parts. First, it describes how a court could theoretically use either case to assess compelled speech claims. Second, it introduces the facts and holdings in Barnette. Third, it analyzes how courts differ or appear not to settle on the appropriate standard for compelled speech claims in the classroom. It will then argue Hazelwood should control.

Nothing explicitly prevents Hazelwood from reaching compelled student speech, beyond the argument that the facts of Hazelwood did not touch on compulsion. Just as educators can restrict students from writing on certain topics, they can demand students produce writings on certain issues. Further, compelling student speech still avails Hazelwood’s purpose of “preserv[ing] an environment conducive to fulfilling the state’s educational mandate.”[55] In this context, it is precisely because of the state’s mandate to educate that it is asking students to speak.  Given the discretion teachers have in designing their curricula, and the fact that speech is occurring as part of a classroom exercise, the Hazelwood standard should control.

Still, Barnette, which preceded Tinker and Hazelwood, complicates this analysis. Professor Joseph J. Martins describes Barnette as “explain[ing] the limits the compelled speech doctrine imposes upon state-mandated curriculum.”[56] Barnette concerned the constitutionality of a school decision to expel two Jehovah’s Witnesses for refusing to salute the flag during the Pledge of Allegiance.[57] The students claimed their religion forbade the worship of any “image” other than God.[58] The Supreme Court overturned the students’ expulsions, ruling that the First Amendment prohibited any “[c]ompulsory unification of opinion.”[59] Further, it struck down the statute requiring students to salute the flag, which it considered the same as requiring them “to declare a belief”[60] and “utter what is not in [their] mind[s].”[61]

The Court further justified its conclusion by observing that the school required students to salute the flag to promote “national unity” and not because doing so had “educational value.”[62] The Court classified the compulsion as serving a social goal that did not merit deference to education officials.[63] In fact, the Court suggested its ruling encouraged democratic values rather than suppressed them.[64] It also confirmed that schools are “not at liberty to intentionally command patriotism through a mandatory pledge.”[65] Thus, if public schools use their curricula to compel students to affirm an orthodoxy, strict scrutiny applies.[66]

Whether Barnette applies on its own in such cases is unclear, as the Supreme Court has not considered a compelled student speech case since Barnette. Further, Barnette’s ruling “was handed down more than twenty-five years before the Court first started to recognize that a lower standard of First Amendment protection may be afforded to public high school students in certain situations.”[67] Thus, if a case concerning compelled speech in the classroom were to be heard now in the Supreme Court, it is unclear whether the Court would decide it under Barnette or Hazelwood. Circuits have been left on their own to answer that question, to varying results.

The Fifth Circuit used Barnette explicitly in Brinsdon v. McAllen Independent School District to conclude that, where a compelled utterance by a student has no purpose but “to compel the speaker’s affirmative belief,” the First Amendment is not violated.[68] The court held the school did not unconstitutionally compel students to recite the Mexican Pledge of Allegiance in Spanish class because the exercise was not “seeking to force orthodoxy.”[69] The court contrasted the facts with Barnette, which analyzed whether requiring a student to recite a pledge linked with an expectation to adhere to its words and meaning was unlawful compulsion.[70] However, in Brinsdon, the students were not actually required to pledge allegiance to Mexico.[71] In assessing case law across the Seventh,[72] Ninth,[73] and Tenth Circuits,[74] the Fifth Circuit observed:

[I]t is clearly established that a school may compel some speech. Otherwise, a student who refuses to respond in class or do homework would not suffer any consequences. Students, moreover, generally do not have a right to reject curricular choices as these decisions are left to the sound discretion of instructors.[75]

Nowhere in Brinsdon did the Fifth Circuit consider Hazelwood; however, the court did refer to its reasoning. In determining that the students were not unconstitutionally compelled, the court noted that the pledge was “part of a cultural and educational exercise.”[76] Further, the Fifth Circuit cited Axson-Flynn v. Johnson, which applied Hazelwood to compelled or school-mandated speech in the university setting.[77] Specifically, the Tenth Circuit held that an educational institution may compel students to engage in a classroom exercise “for legitimate pedagogical reasons.”[78] Thus, while the Brinsdon court relied on Barnette rather than on Hazelwood, its citation to Axson-Flynn indicates that it did not foreclose reliance on Hazelwood in some capacity.

That said, by using Hazelwood, the Tenth Circuit effectively equated compelled speech and restricted speech in Axson-Flynn.[79] The Fifth Circuit’s decision in Brinsdon did not make a similar conclusion, as it noted that Axson-Flynn was not “directly applicable” to the case of Brinsdon,[80] and emphasized Barnette more heavily in its analysis. The Tenth Circuit, on the other hand, more clearly prefers Hazelwood for compelled student speech cases, as demonstrated by its decisions in Corder v. Lewis Palmer School District and Axson-Flynn.[81]

Specifically, in Axson-Flynn, the Tenth Circuit found that the student’s speech was school-mandated and explicitly evaluated it under Hazelwood.[82] The student argued that being forced “to say words she finds offensive constitute[d] compelled speech,” violating her First Amendment rights.[83] In particular, the student, a member of the Church of Jesus Christ of Latter-day Saints, refused to swear or take God’s name in vain during classroom acting exercises.[84] The Tenth Circuit emphasized the less-than-stringent standard of Hazelwood but also underscored the court’s role in ensuring that the school’s purported legitimate “pedagogical concerns” were not merely pretextual.[85] Though the school did not “explicitly threaten[]” the student “with expulsion,” the court found that the school “attempted to compel [the student] to speak.”[86] Still, the court gave “substantial deference” to the school’s asserted goals[87] and remanded the case to the lower court to determine whether the school’s interest was merely a “pretext for religious discrimination.”[88]

In Corder, the Tenth Circuit returned to the Hazelwood standard for cases involving compelled student speech.[89] There, the valedictorian claimed the school unconstitutionally forced her to apologize for expressing her appreciation for Jesus Christ and urging the audience to learn more about the religious figure’s sacrifice during her graduation address.[90] The school had an “unwritten policy of requiring students to submit their valedictory speeches for content review prior to presentation,” but the speech the student provided to “the principal for review did not mention religion.”[91] Had the school known the student would discuss her Christian faith in her address, it would have required the student to excise it.[92] In assessing the student’s First Amendment challenge to the school’s actions, the Tenth Circuit considered, first, whether the school could exercise editorial control over the speech, and, second, whether the school could compel the student’s apology. For both questions, the court relied on Hazelwood.

To determine that the school could exercise editorial control over the speech, the Tenth Circuit made a threshold determination, finding that the graduation ceremony was a school-sponsored event.[93] Then, the court assessed that the school could permissibly review the student’s speech as it was a “learning opportunity” and graduation “impart[s] lessons on discipline, courtesy, and respect for authority.”[94] As for the compelled speech claim, the court concluded that a school may tell a student “what to say when she disregards the School District’s policy regarding the school-sponsored speech, as long as the compulsion is related to a legitimate pedagogical purpose.”[95] Since the apology itself was school-sponsored speech, the court determined that the school “was free to compel [the student’s] speech” if it met the Hazelwood standard.[96] The Tenth Circuit found that the “forced apology” was “reasonably related”[97] to the pedagogical goal of “learning.”[98] Thus, according to the Tenth Circuit, a school does not violate a student’s First Amendment rights if the speech is school-sponsored and the restriction or compulsion survives the Hazelwood analysis.[99]

In light of the Sixth and Tenth Circuit’s decisions, courts may reasonably rely primarily on either Barnette or Hazelwood to assess compelled speech claims. Indeed, one possible way to summarize the scope of Hazelwood and Barnette—as influenced by subsequent case law—is that Hazelwood concerns the school promotion of student speech while Barnette concerns the student promotion of school speech. That said, courts should use Hazelwood as the framework for their analysis.

When it comes to teaching religion in classes, the Hazelwood standard is more useful, but deferential, providing a mechanism by which to assess the validity of the assignment or restriction. In particular, judicial scrutiny under Hazelwood does not end when the Court finds no compulsion. Instead, the Court may inquire further into whether the school availed legitimate pedagogical goals and consider compulsion as part of that analysis. For example, if the Court only applied Barnette to Wood, the Court’s analysis would cease when it determined that the shahada assignment did not “compel” Wood; the school did not ask her to ascribe to a belief of Islam. However, if the Court applied Hazelwood, it would be required to consider whether the school had a legitimate pedagogical goal for the shahada assignment and whether the assignment itself was reasonably related to that goal, beyond merely compulsion.

Still, the Hazelwood analysis goes further in that students must not be required to “affirm a belief in the subject of the readings” or determine another religion as equal to their own.[100] Educators must walk the thin line between classroom discussion of faith that is “consistent with appropriate curricular standards” and that which appears to proselytize religion.[101] While school officials may seek to craft a curriculum that exposes students to “diverse traditions and cultural experiences,” they must also “remain[] mindful of the expectations and rights of the children and their parents.”[102]

The counterarguments to using Hazelwood primarily center on the facts on which the Court decided Hazelwood and its “deferential” approach. First, examining the facts of Hazelwood alone, the basis for equating compelled speech to restricted speech as the Tenth Circuit has done is not clear.[103] After all, Hazelwood concerned deleting text from a student newspaper, whereas Axson-Flynn concerned “compelling a student to speak as part of a course requirement,”[104] and Corder concerned compelling a student to apologize for her reference to Jesus. Thus, some may argue that the Court never intended Hazelwood to apply to situations of compelled speech.

Second, courts may avoid using Hazelwood for compelled speech claims because granting “substantial deference” to school officials means the decision to compel only needs to be reasonably related to pedagogical concerns.[105] As mentioned above, the Tenth Circuit only qualified the application of Hazelwood to compelled speech claims with a consideration of whether the action served as “a pretext for invidious discrimination.”[106] A court may fear that a substantially deferential standard may fail to protect students’ rights when it comes to religious curricula. A deferential standard may also subject students to uncomfortable classroom assignments.

Further, in light of Barnette and Brinsdon, a court may opt to analyze compelled or school-mandated speech cases only under Barnette, rather than Hazelwood.[107] Thus, as Brandon C. Pond asserts, if courts adopted Barnette as the standard, they would “first decide whether the speech is in fact compelled, and if so, whether the compulsion ‘invades the sphere of intellect and spirit’ proscribed by the First Amendment.”[108] Pond concedes that the standard-like language from Barnette in “the sphere of intellect and spirit protected by the First Amendment” is ambiguous.[109] Thus, Pond emphasizes that courts should primarily consider “whether the compulsion requires espousal of a particular idea.”[110]

However, there are two major weaknesses in Pond’s arguments. First, the courts must still allow schools to achieve their educational mandate. Second, despite Pond’s beliefs, a classroom exercise may more easily pass the Barnette standard and Hazelwood may better protect students’ rights rather than mere reliance on Barnette. In many instances, there is no direct constitutional threat from a school’s curricular choices, as “[n]o student has a First Amendment right” to be or not to be taught certain topics.[111] It is constitutional to teach about religion, the role of religion in history, and the historical or literary values of religious texts.[112] While the Court scrutinizes the introduction of religion in schools, [113] public schools may still teach about religion as long as they do not promote or denigrate it.[114]

Standing alone, Barnette does not fully account for the intricacies of teaching religion in classrooms. School assignments inherently compel answers, and likely will survive Barnette scrutiny because it is seldom understood that the student wholeheartedly subscribes to what she utters in class even if she may have to espouse a particular view. Hazelwood appropriately grants teachers deference over their curricula, but that does not mean courts will abdicate their duty in scrutinizing whether teachers achieve their aims constitutionally, especially when it comes to religious curriculum. Thus, while Barnette serves to place an essential gloss on courts’ consideration of compelled student speech claims, the Hazelwood standard should define the contours of the court’s analysis.

II. When Can a Teacher Teach Religion, When Must a Student Learn Religion

Relying on Hazelwood gives space to clarify further how its prongs should be understood in determining whether an assignment that compels religious speech is constitutionally permissible. To be precise, a court should apply Hazelwood to compelled student speech cases concerning religious curriculum in the following manner. First, for a classroom exercise to be considered “reasonably related” to the school’s educational goals, a court should find the assignment to be part of a mandatory education effort rather than a compelled recitation. Second, academic rather than inculcative goals must be the controlling pedagogical goal of schools when introducing religion in the required curriculum. It is here, in the second prong, that courts should bear Barnette in mind.

A. Compelled Recitation versus Mandatory Education Efforts

In the first prong of Hazelwood, the teaching mechanism or method that a teacher chooses to use must be “reasonably related” to achieving her legitimate pedagogical goal.[115] A school may have a legitimate pedagogical goal, but if the mechanism by which it carries out the purpose is impermissible, then the assignment or requirement imposed on students fails judicial scrutiny. At this step, a court should consider whether the exercise is a compelled recitation or a “mandatory education effort[].”[116] Compelled recitations, like the Pledge of Allegiance, usually violate the First Amendment, whereas mandatory education efforts, like classroom exercises designed to teach, are typically permitted under the First Amendment.[117]

Professor Seana Shiffrin finds mandatory education efforts less constitutionally troubling for two reasons. First, teachers foster students’ “intellectual independence” when they address students as an audience rather than when they compel students to speak.[118] Second, teachers promote students’ critical thinking when they “engage[] with the questions and doubts of [their] students.”[119] As commentator Nora Sullivan expounds, assignments like research papers or exercises in which a student “advocate[s] a particular viewpoint in the course of a classroom debate” promote such desired critical thinking.[120] In contrast, she proposes that Barnette should apply in “cases involving compelled recitations.”[121] Where mandatory education efforts are involved, “courts should allow a school’s compelled speech requirement to stand in order to give teachers enough power to teach critical thinking skills.”[122] There, the Hazelwood standard likely applies.

While Professor Shiffrin’s distinction is helpful, her reasoning does not legitimize a fill-in-the-blank assignment like the one implicated in Wood. Due to the lenient nature of “reasonably related,” a court may likely find many assignments permissible under the first prong of Hazelwood; however, they do not have to reflect Professor Shriffin’s justifications. For example, students are not an audience that can engage critically with the instruction by merely filling out a worksheet, but that worksheet is likely permissible. Similarly, a multiple-choice assignment that required Wood to pick the shahada as a tenet of Islam from a list of options would likely not have given rise to a compelled speech claim. On the other hand, if Wood’s teacher had the students recite the shahada aloud, that would likely fall in the compelled recitation category.

But it is critical to note what exactly “reasonably related” means. As the Tenth Circuit clarified, the mechanism does not need to be “necessary to the achievement of its goals” or “the most effective means of teaching,”[123] and it may still be reasonably related. If “reasonably related” were defined more stringently, it “would effectively give each student veto power over curricular requirements,” which the court refused to permit.[124] Thus, exercises such as the shahada assignment are likely mandatory education efforts that do not automatically raise constitutional concerns.

Still, characterizing a graded task as a mandatory education effort should not be construed as a rubber stamp of constitutionality. A court should not conclude its analysis of assignments like the fill-in-the-blank worksheet here. While a classroom exercise that is considered to be a mandatory education effort may be less constitutionally suspect than a compelled recitation, the purpose of the activity still must be assessed to determine whether the activity advances a “legitimate pedagogical goal.”

B. Academic versus Inculcative Pedagogical Goals

In assessing the “legitimate pedagogical goals” of the school under Hazelwood, courts should consider the centrality of the academic versus inculcative goals of the school in sponsoring a classroom activity. Professor James Ryan observed that if an educator seeks to teach religion to promote “community values,”[125] such as pluralism, her curriculum will receive harsher judicial scrutiny than if academic reasons motivated her curricular choices.[126] In other words, while a school may promote certain values within a classroom exercise, the Court “has limited the ability of schools to inculcate values for their own sake.”[127]

What the courts have considered a legitimate pedagogical purpose under Hazelwood appears to be broad. Courts have included behavioral and value-based concerns; as the Sixth Circuit declared, “the universe of legitimate pedagogical concerns is by no means confined to the academic.”[128] As Samuel P. Jordan summarizes, “[o]nce speech is identified as school-sponsored, courts typically defer to a school’s restriction of the speech if it can make a plausible argument that any pedagogical concern is implicated.”[129] For example, in Bethel School District No. 403 v. Fraser, the Court affirmed that public schools serve the purpose of teaching fundamental values “essential to a democratic society,” like religious and political tolerance.[130] Likewise, in Mozert v. Hawkins County Board of Education, the Sixth Circuit permitted a critical reading approach used by the school because it sought to teach civil tolerance of religion.[131]

Nevertheless, according to Professor Ryan, courts defer to schools in assignments that appear to teach values rather than pursue academic goals because values are inevitably taught in the course of education and teachers should retain some control over their curricula.[132] Partly motivating the limited First Amendment rights of students is the Supreme Court’s characterization of the government as an “educator” such that education officials are afforded “greater leeway to bend constitutional rights” so that they may “achieve certain educational goals.”[133] Academic goals afford more constitutional deference to schools, but inculcative goals afford some.[134] Still, cases like Barnette “place significant limitations on the ability of schools to inculcate students with dominant cultural values.”[135] A teacher may seek to expose schoolchildren to Islam to promote pluralism, just as a teacher may require that students pledge allegiance to promote patriotism as in Barnette. However, if those are the teacher’s goals—rather than academic goals—and it offends the student’s religious beliefs, Barnette would inform the court’s negative assessment of those classroom exercises.[136] As a result, courts should consider Barnette when assessing whether an assignment serves as a legitimate pedagogical goal under Hazelwood.

The factors considered by the Sixth Circuit in Brinsdon v. McAllen Independent School District further support Professor Ryan’s distinction between inculcative and academic goals and the use of Barnette in assessing whether the assignment related to a legitimate educational goal. Specifically, despite the risk of academic penalty for noncompliance, the court found it essential that (1) there was “no direct evidence . . . of a purpose to foster Mexican nationalism,” (2) “the pledge was educational,” and (3) “the assignment was a singular event.”[137] The Sixth Circuit’s separate analysis of (1) and (2) indicates that while a school may pursue an inculcative goal to foster tolerance,[138] it cannot pursue an inculcative goal to foster a belief in a specific religion or ideology. Thus, even if Wood had to fill out the entire shahada or recite it aloud, if there was (1) no evidence of a purpose to foster a belief in Islam, (2) the recitation was educational, and (3) it was a singular event, the assignment would likely survive Barnette. However, if the teacher’s purpose in giving the shahada assignment was not academic, Wood’s compelled speech claim gains some merit. By focusing on the educational purpose of the classroom exercise, Brinsdon and decisions arising from the Ninth[139] and Seventh Circuits[140] affirm that the academic purpose must control the decision to engage in that exercise.

Conclusion

When faced with claims challenging school assignments on religion, courts should apply Hazelwood. Further, while Barnette is relevant, it should not control the analysis given how Hazelwood better addresses the nuances of the classroom and school assignments. In applying Hazelwood, courts should first determine whether the exercise is a compelled recitation or mandatory education effort under its “reasonably related” prong. Second, in considering the “legitimate pedagogical purpose” of the religion-focused assignment, courts should defer to the school where its purpose serves academic rather than inculcative goals.

Even when it comes to learning about religious views a student opposes, the state’s interest in fulfilling its educational mandate dampens that student’s right to free expression. Teaching about religion is constitutional and important to fostering a pluralist and tolerant society, but it is a delicate exercise. On the one hand, a teacher may convey the tenets of a faith improperly and abuse her discretion. On the other hand, the lesson may place a student in a double-bind where she has to balance her religious views and her desire to avoid academic sanction. We can postulate whether Wood’s complaint came from a deep-seated dislike of Islam, whether the school should have also had students conduct a similar exercise for other faiths, or whether another form of the assignment could have mitigated constitutional concerns.[141]  

Regardless, schools are treated differently under the First Amendment precisely because of their educational mandate; that is what distinguishes them from public fora. They may restrict student speech and compel students to speak on topics within their curricula. They may include religion within their curricula and determine to what extent and through which methods they discuss religion. However, to protect the judicial deference they receive and to respect student’s expectations and rights, schools should ensure that their focus remains foremost academic.