The Miseducation of Free Speech


The claim that America’s campuses are in the midst of a free speech crisis has been made so often and so emphatically that it has widely become accepted as fact.[1] According to the prevailing narrative, liberal professors and students have turned institutions of higher learning into elitist enclaves, where any thought that does not conform to leftist orthodoxy is aggressively suppressed. In this narrative, America’s institutions of higher learning have been transformed from vibrant marketplaces of ideas to intolerant and censorious safe spaces.

This is not a new narrative. In 1970, soon-to-be Supreme Court Justice Lewis Powell lamented that

frightening progress has been made toward radicalizing the campus. . . . [T]he movement has engulfed many of the most prestigious universities and is a recognized influence on almost every campus. . . . Colleges have been shut down; files looted; manuscripts destroyed and buildings burned. Freedom of speech has been denied, reasoned discourse repudiated and academic freedom endangered.[2]

In a newspaper editorial published in 1971, Powell expressed his critique in words that could have been written yesterday: “It is common practice, especially on the campus, for leftists to shout down with obscenities any moderate or conservative speaker or physically to deny such speaker the rostrum.”[3]

The historical backdrop of Justice Powell’s sentiments was the wave of protests sweeping America’s campuses in the early 1970s, with students protesting the Vietnam and Cambodian conflicts as well as police brutality, racism, and sexism.[4] Despite Justice Powell’s attempt to characterize student protesters as hostile to free speech, the period is now seen as a high-water mark for student free speech.[5] Moreover, it was students, not the people or the ideas they were protesting, who bore the brunt of violence during this time. Only a few months before Justice Powell’s 1970 speech, four students had been shot dead at Kent State, and another two students were killed during a college protest at Jackson State a few weeks later.[6]

The assertion that conservative ideas are being violently suppressed on college campuses is as untrue today as it was in the 1970s.[7] While there have been a handful of violent incidents involving conservative speakers, the vast majority of universities have experienced no such controversies. The attempts at ideological suppression that do occur on campuses are far more likely to target leftist views than right-wing views. In general, students remain more open-minded and tolerant than the general population, and universities remain some of the most robust free speech institutions in the country.

In other words, the narrative of widespread liberal intolerance and suppression of conservative views on college campuses is simply false. Yet it continues to be repeated by politicians, civil libertarians, university administrators, media outlets, and scholars. This false narrative of the campus free speech crisis is harmful for two primary reasons.

One is that, in Orwellian fashion, it is used to justify the imposition of laws and policies that severely restrict students’ right to protest—censorship in the name of free speech. The impact of these regulations is not likely to be evenly distributed but will instead further chill the speech of already marginalized groups. The false narrative of liberal intolerance has particularly vilified the responses of women, nonwhite men, and sexual minorities to the provocations of far-right speakers and other situations seemingly calculated to incite campus conflict. The characterization of protest by these groups as “censorship” that should be punished, as opposed to counterspeech that should be protected, deepens the free speech divide between the privileged and the vulnerable.

The second harm inflicted by the false narrative of the college free speech crisis is how it undermines the legitimacy of the university as a free speech institution. This is particularly alarming in our current historical moment, when our nation’s leaders have demonstrated open and sustained hostility to free speech and have degraded every value the right was intended to protect: truth, autonomy, and democracy. We are living through a presidential administration that harnesses the power of the Internet to promote blatant lies, encourage the brutal suppression of dissent, and vilify the press. It is no accident that the attack on universities is driven by Internet celebrities with little knowledge of and even less concern for what a healthy free speech community looks like. While individual universities doubtless often fall short of the ideal, the university as an institution serves to inculcate free speech values in their students and faculty and provides a uniquely valuable model for the cultivation of free speech norms in a broader context. The myth of the censorious campus distracts us from the very real threats to free speech posed by our nation’s leaders and delegitimizes the university’s ability to fight them. The university model of free speech, which at its best encourages research, reflection, and self-improvement, is needed now more than ever to compete with the Internet model of free speech, which at its worst rewards ignorance, impulsivity, and self-satisfaction.

I. The Manufactured Campus Free Speech Crisis

In my 2019 book, The Cult of the Constitution,[8] I detail the convergence of conservative and liberal ideology on free speech over the last few decades. This convergence is perhaps nowhere as apparent as in the recent hand-wringing over the supposed campus free speech crisis. While conservatives have been bemoaning “political correctness” on college campuses since the 1990s,[9] accusations of student hostility to freedom of speech is now as likely to come from self-described liberals as conservatives. In a piece for New York Magazine in 2015, Jonathan Chait followed the conservative playbook by citing a handful of examples of liberal intolerance as evidence that leftists were engaged in an all-out assault on freedom of thought.[10] Chait’s piece was followed by a flurry of popular press articles similarly decrying the leftist takeover of college campuses. In 2016, the University of Chicago was lauded across the political spectrum for sending a welcome letter to incoming students that stated that the university does “not support so-called trigger warnings, we do not cancel invited speakers because their topics might prove controversial and we do not condone the creation of intellectual safe spaces where individuals can retreat from ideas and perspectives at odds with their own.”[11]

In 2017, three campus protests against right-wing speakers in particular drew intense media coverage and criticism from high-profile liberals. The most legitimately alarming of these involved Charles Murray’s visit to Middlebury College.[12] Murray is best known as the co-author of the controversial 1994 book The Bell Curve, widely criticized for unfounded and racist claims about intelligence.[13] Murray was reportedly prevented from giving his speech by dozens of shouting students, and protesters pulled fire alarms in an attempt to disrupt his delivery of the speech in a different room.[14] Some protesters became physically aggressive with Murray and his faculty interviewer, Professor Allison Stanger, as they departed the building. Protesters rocked the car they entered and jumped on the hood, and Professor Stanger was left with a concussion.[15]

Violence also broke out at the University of California, Berkeley in February 2017 in advance of a scheduled appearance by Milo Yiannopoulos, then a senior editor for the far-right publication Breitbart, who is best known for being a gay, homophobic, misogynist, and racist Donald Trump supporter.[16] At some point during the day Yiannopoulos was set to speak, a group of demonstrators set fires and fireworks, damaged property, and threw rocks at police.[17] Citing public safety concerns, the university canceled his appearance.[18]

Threats of violence also plagued a planned appearance at Berkeley by the conservative political commentator Ann Coulter in April 2017. After receiving what the university characterized as “very specific intelligence” regarding violent demonstrations, Berkeley officials announced that they would not be able to provide adequate security to host Coulter in the venue and on the specific date she had requested.[19]

The Coulter controversy sparked comment not just from conservative pundits, but also liberal politicians. Senator Bernie Sanders weighed in, calling attempts to prevent her from speaking “a sign of intellectual weakness. . . . If you can’t ask Ann Coulter in a polite way questions which expose the weakness of her arguments, if all you can do is boo, or shut her down, or prevent her from coming, what does that tell the world?”[20] Senator Elizabeth Warren was similarly critical, telling CNN’s Jake Tapper, “My view is, let her speak. . . . If you don’t like it, don’t show up.” [21]

David Cole, the legal director of the ACLU, went even further, releasing a public statement on the events surrounding Coulter’s non-appearance at Berkeley:

The unacceptable threats of violence that have led to the “hecklers’ veto” of Ann Coulter’s speech at Berkeley are inconsistent with free speech principles that protect us all from government overreach. . . . For the future of our democracy, we must protect bigoted speech from government censorship. On college campuses, that means that the best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.[22]

A closer look at the Coulter episode, however, complicates the picture of a liberal university stifling unpopular conservative speech. While many news outlets reported that Berkeley had canceled Coulter’s talk and suggested that it had done so out of a bias against conservative speakers, Coulter was never officially scheduled to speak at Berkeley.[23] The organizations that had invited Coulter had asked for but not received confirmation of an available venue.[24] Berkeley administrators reportedly only learned of the invitation by reading about it in the newspaper. After the school received warnings of violent reactions to Coulter’s unscheduled visit, they offered to host Coulter at a different venue on a later date.[25] Coulter and the groups that invited her did not find this alternative acceptable, and Coulter claimed she would show up on the original date.[26] Berkeley administrators reiterated that they could not provide a secure location on that date, but that they would arrange for a police presence to attempt to maintain public safety if Coulter did show up.[27] After the conservative organizations that invited Coulter stated that they could no longer support the event due to safety concerns, Coulter decided not to show up after all.[28]

What is more, there is little evidence that “liberal” students, or even students at all, are behind the violent protests in this handful of cases. Many in the media and the general public assumed that the students who expressed nonviolent disagreement with controversial speakers were also responsible for the violence and property damage that occurred during these incidents. But the violent behavior highlighted by the Middlebury and Berkeley incidents does not appear to have been instigated by students. The Berkeley violence “was instigated by a group of about 150 masked agitators who came onto campus and interrupted an otherwise non-violent protest.”[29] And a Middlebury Police Department statement indicated that many of the individuals present where the violence occurred outside the Murray event “were not members of the college community.”[30] For example, during a protest of Yiannopoulos’s speech at the University of Washington, a Yiannopoulos supporter with no connection to the university shot a demonstrator in the stomach, critically wounding him.[31] According to police, the shooter and her husband had gone to the UW campus with the specific purpose of provoking altercations with protesters.[32] The shooter’s husband sent a Facebook message the day before Yiannopoulos’s talk stating, “I’m going to the milo event and if the snowflakes get out off [sic] hand I’m going to wade through their ranks and start cracking skulls” and noted that his wife would be armed.[33] Violent campus protests are, in short, both rare and not clearly attributable to students, to say nothing of students with any particular ideological affiliation.

Speaker disinvitations, which are often cited as evidence of increasing academic intolerance, are only slightly less rare than violent protests. The Foundation for Individual Rights in Education (FIRE), a nonprofit organization whose stated mission is “to defend and sustain individual rights at America’s colleges and universities,” has maintained a database of attempts to disinvite college speakers since 2000.[34] According to FIRE’s database, the number of attempted disinvitations in 2016 was forty-two. Eleven of these were disinvitations of a single speaker, Milo Yiannopoulos.[35] There are more than 4,500 degree-granting institutions of higher education in the United States.[36] Even if each of these institutions held only one speaker event a year, the percentage of attempted disinvitations would be less than one-tenth of a percent.[37]

And finally, conservative attempts to suppress liberal speech are at least as common as the inverse, but they receive comparatively less attention in the media and by both conservative and liberal commentators.[38] The national media watchdog group Fairness & Accuracy in Reporting (“FAIR”) reviewed eighteen months of New York Times’ reporting on campus free speech and found that the newspaper devoted seven times as much column space to stories about conservative speech suppression as it did for stories of liberal speech suppression: “A review of Times articles, columns, op-eds and reports shows a clear emphasis on documenting and condemning perceived suppression of conservative voices at American universities, while rarely mentioning harassment campaigns against leftist professors and/or the criminalization of leftist causes such as the pro-Palestinian BDS (Boycott Divestment Sanctions) movement.”[39]

One relatively overlooked story of the suppression of liberal speech involved Anita Sarkeesian, a cultural critic best known for her critiques of sexism in video games.[40] Sarkeesian’s work has made her a target for violent, misogynist abuse since 2012, abuse that intensified during “Gamergate,” the 2014 high-profile harassment campaign against women in the gaming industry.[41]

On October 14, 2014, the day before Sarkeesian was scheduled to give a talk at Utah State University, university administrators received an anonymous e-mail from a person who threatened to carry out “the deadliest school shooting in American history” if her talk was not canceled.[42] The anonymous author invoked Marc Lépine, the man who murdered fourteen women at the École Polytechnique in Montreal in 1989 in the name of “fighting feminism.”[43] The author claimed to have “a semi-automatic rifle, multiple pistols, and a collection of pipe bombs,” and told the university it had “24 hours to cancel Sarkeesian’s talk.”[44] The email continued:

Anita Sarkeesian is everything wrong with the feminist woman, and she is going to die screaming like the craven little whore that she is if you let her come to USU. I will write my manifesto in her spilled blood, and you will all bear witness to what feminist lies and poison have done to the men of America.[45]

Sarkeesian is no stranger to threats, and rarely cancels speaking appearances because of them. She did, however, request that the university implement metal detectors or pat-downs for the event in light of the email’s specific reference to firearms.[46] The university refused,[47] claiming “they could not prevent those in attendance from carrying weapons into the lecture if they had concealed weapons permits.”[48] It also refused Sarkeesian’s request that those carrying firearms be asked to show their permits because “that would have been needlessly invasive for the audience.”[49] Sarkeesian canceled her talk, stating, “It’s unacceptable that the school is unable or unwilling to screen for firearms at a lecture on their campus, especially when a specific terrorist threat had been made against the speaker.”[50]

Sarkeesian is a high-profile speaker who was targeted with specific threats of violence solely based on the anticipated content of her speech, threats that extended to the student audience of the event. By declining to take the threat seriously, university administrators left Sarkeesian with the choice of speaking and risking death or injury to herself and her audience, or not speaking at all. What Sarkeesian experienced was far graver than Ann Coulter’s experience with Berkeley, and yet Sarkeesian’s case did not generate anything close to the outrage and condemnation by prominent figures on either the right or the left. The violent suppression of Sarkeesian’s speech was not denounced in right-wing outlets fond of invoking the First Amendment when it comes to speakers like Yiannopoulos or Coulter, or used as an example of worrisome intolerance by liberals like Jonathan Chait. The ACLU did not denounce the “hecklers’ veto” of Sarkeesian or use it to encourage those on college campuses to use “counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.”

Sarkeesian’s story is only one of many right-wing attempts to silence liberal speakers that fails to generate the attention or outrage of incidents involving right-wing provocateurs. In June 2017, Inside Higher Ed published an article highlighting recent threats against academics.[51] Five of the six incidents targeted liberal professors, and yet the incident on the list that received the most sustained media coverage and widespread condemnation was the single case[52] involving a conservative professor, Bret Weinstein of Evergreen State College.[53]

Among the faculty members who received far less attention and support include Princeton University Professor Keeanga-Yamahtta Taylor, who was targeted with threats of violence, including lynching and being shot, after calling Donald Trump “a racist, sexist megalomaniac” in a commencement speech at Hampshire College in May 2017.[54] She canceled planned speeches in Seattle and the University of California, San Diego over concerns for her safety.[55] In another case, John Eric Williams, an associate professor of sociology at Trinity College, was subjected to physical threats after he shared an article that suggested black people should not help bigots.[56] Trinity College shut down for a day over the threats and placed Williams on leave. In yet another incident, a classics professor at the University of Iowa was threatened and harassed for noting that many ancient Western statues were not originally white.[57]

Outspoken critics of campus intolerance rarely mention the right-wing website Professor Watchlist, which has the stated purpose of identifying faculty who “discriminate against conservative students and advance leftist propaganda in the classroom.”[58] The site provides the professors’ institutional affiliations and faculty photos as well as a summary of their putative infractions. The websites Campus Reform and College Fix feature similar stories.[59] According to the American Association of University Professors, “Individual faculty members who have been included on such lists or singled out elsewhere have been subject to threats of physical violence, including sexual assault, through hundreds of e-mails, calls, and social media postings.”[60]

These professors face violent, targeted threats that directly impact their sense of physical safety and their livelihood. Nearly all of them were targeted for the content of their speech—their views on racism, sexism, or white male supremacy. If concerns about freedom of expression in academia are sincere, then these incidents should receive at least the same amount of attention and generate at least as much outrage as those involving right-wing celebrities. Indeed, anyone truly concerned about intellectual freedom on college campuses should find direct threats to professors’ livelihoods more troubling than protests over famous media personalities with multiple outlets for expressing themselves.

Intellectual intolerance on college campuses is indeed disturbing and should be taken seriously. But the caricature of conservatives struggling to be heard over rioting liberal reactionaries is a grotesque distortion of reality. True instances of violent, intolerant suppression of ideas on college campuses are rare; those specifically targeting conservative ideas are even rarer.

How then, did the myth of a violent, coordinated leftist student push to silence conservative voices on university campuses become so widely accepted? The answer lies in the well-funded, strategic efforts by conservative groups amplified by poorly sourced, sensationalist reporting and liberal free speech fundamentalists.

According to author Amy Binder, “For decades, a handful of organizations has been working in the trenches with conservative college students to stage events” to create the impression of leftist intolerance.[61] “With their emphasis on conservative victimhood and liberal indoctrination, these organizations have fostered right-leaning student activism and suspicion about higher education, which have created fertile soil in which larger-scale political attacks on higher education germinate and grow.”[62] One such organization is the Young America’s Foundation (“YAF”), which arranges college speaking tours for Ann Coulter and other conservative celebrities.[63] The YAF listed nearly $60 million in assets and $23 million in expenditures in 2014.[64] Its funding sources include the Koch brothers, the Lynde and Harry Bradley Foundation, and Betsy Devos.[65] Binder writes:

YAF fuels a provocative style for what one of our interviewees called “Average Joe” college students. Enticed by slogans depicting faculty as “tree-hugging, gun-taking, wealth-hating, and leftist-loving,” students are taught in “boot camps’” to fight “persecution” on campus with an “activist mentality,” confronting their liberal peers and professors head-to-head with “aggressive” tactics. Students take up the combative charge by staging showy events like “Affirmative Action Bake Sales” and “Catch an Illegal Alien Day.” This provocative style of right-wing activism is designed to poke fun at liberals, get them angry, protest their events and, when chaos ensues, attract media attention.[66]

Other well-funded, right-wing organizations sponsoring conservative campus events include the Leadership Institute, Turning Point USA, and the American Enterprise Institute. Several of these organizations are members of the State Policy Network (“SPN”), a wide network of right-wing, tax-exempt think tanks. The SPN Network, which enjoys close ties to the Koch brothers as well as to global corporations including Microsoft, Verizon, and Comcast, pushes “an extreme right-wing agenda that aims to privatize education, block healthcare reform, restrict workers’ rights, roll back environmental protections, and create a tax system that benefits most those at the very top level of income.”[67]

And of course, there is FIRE, one of the loudest voices proclaiming a state of emergency for freedom of expression in higher education. As noted above, FIRE’s own research shows that speaker disinvitations are extremely rare, and yet the organization claimed in 2017 that “the climate for free speech on campus is in many ways more precarious than ever.”[68] The stark discrepancy between the rhetoric and the reality is made more explicable in light of the individuals who constitute FIRE’s leadership and provide its funding. Despite FIRE’s self-characterization as a nonpartisan foundation, its “funding, board members, and closest associations are heavily right wing.”[69] The organization listed $6 million in revenue and $6 million in assets in 2016,[70] an amount that includes generous donations from right-wing nonprofits such as the Lynde and Harry Bradley Foundation and the Koch brothers’ DonorsTrust.[71]

II. The Goldwater Bill, or the Betrayal of Tinker

The concept of counterspeech is central to First Amendment doctrine. In Justice Louis Brandeis’s famous formulation, “If there be time to expose through discussion the falsehood and fallacies, to avert the evil by the processes of education, the remedy to be applied is more speech, not enforced silence.”[72] In his statement on behalf of the ACLU regarding the Coulter controversy at Berkeley, David Cole echoed Brandeis: “[T]he best way to combat hateful speech is through counter-speech, vigorous and creative protest, and debate, not threats of violence or censorship.”[73] Protest is itself a valuable form of free speech, and one with a particularly distinguished pedigree. In the landmark case Tinker v. Des Moines, the Supreme Court held that public high school students wearing black armbands in opposition to the Vietnam War were engaging in expressive conduct protected by the First Amendment.[74] The mere possibility that such speech may disrupt the educational environment, the Court found, does not justify its suppression. Students’ expressive conduct may be restricted only when it “materially disrupts classwork or involves substantial disorder or invasion of the rights of others . . . . [U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.”[75] As Justice Fortas explained:

Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.[76]

Tinker underscores that the right to peaceful protest is an essential aspect of the right to free speech, and serves as a reminder of the role of peaceful protest by students throughout American history, from war protests to civil rights demonstrations.

The promoters of the campus free speech crisis myth have, in Orwellian fashion, targeted a long-recognized, well-established form of protected free speech—student protest—and recast it as censorship. As one legal scholar points out:

[T]he fact that speech is contentious does not make it censorial; it simply makes it contentious speech. Many Supreme Court cases involve contentious yet fully protected speech—ranging from protestors shouting at and following women entering medical clinics to those holding grossly offensive signs at funerals. Indeed, protests, which lie at the core of the First Amendment, are by definition contentious tactics.[77]

In their vilification of student protesters, the promoters of the censorious campus myth bring to mind Justice Hugo Black’s sputtering dissent in Tinker, in which the self-styled First Amendment “absolutist” ridiculed the idea that the First Amendment should protect the “groups of students all over the land . . . already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins.”[78]

The second Orwellian twist is that the anti-protest measures enacted to respond to this false crisis are themselves censorial. Since the Middlebury and Berkeley incidents, at least seventeen states have enacted anti-protest laws, including eight in 2019 alone.[79] These bills are based on model legislation titled, with no apparent irony, the “Campus Free Speech Act,”[80] drafted by the Ethics and Public Policy Center and the Goldwater Institute.[81] These two organizations have received millions of dollars in funding from the Koch brothers. The Ethics and Public Policy Center has also received funding from several wealthy conservative family foundations, including nearly $2 million from the Lynde and Harry Bradley Foundation.[82] The Goldwater Institute is “funded by some of the biggest benefactors in Republican politics,” including receiving more than a million dollars from the Mercer Family Foundation since 2012.[83]

The model bill’s most troubling provisions include Section 1.4, which states that “protests and demonstrations that infringe upon the rights of others to engage in or listen to expressive activity shall not be permitted and shall be subject to sanction” (with the exception of “professors or other instructors . . . maintaining order in the classroom”); Section 1.7, which states that “anyone under the jurisdiction of the institution who interferes with the free expression of others” will be subjected to “a range of disciplinary sanctions”; Section 1.9, which dictates that a “student who has twice been found responsible for infringing the expressive rights of others will be suspended for a minimum of one year, or expelled”; and Section 1.10, which states that the academic institution “(1) shall strive to remain neutral, as an institution, on the public policy controversies of the day, and (2) may not take action, as an institution, on the public policy controversies of the day in such a way as to require students or faculty to publicly express a given view of social policy.”[84]

The policy does not define “interfering with the free expression of others” or “infringing the expressive rights of others.” Does it include chanting quietly? Holding up large signs? Turning one’s back to the speaker? Such ambiguity should trigger First Amendment concerns about chilling effects, particularly given the harshness of the sanctions imposed for violations. The clause requiring institutions to “remain neutral on the public policy controversies of the day” is difficult to describe as anything other than naked censorship. As Ralph Wilson, an activist who lobbies to keep corporate influence out of education, writes, the bills can be likened to the Citizens United ruling in that they “bend the definition of free speech to favor corporate funded speech (campus speakers sponsored by outside groups, or corporate funded student groups). Spontaneous protest will be pre-empted by sponsored speakers.”[85]

In October 2017, the University of Wisconsin system approved a policy that closely tracked the Goldwater bill, including a provision that expels students who have “disrupted others’ free expression three times.”[86] The policy, like the Goldwater bill and a version of the bill that passed in the Wisconsin Assembly in June 2017, does not specify what disruptive conduct is. Sixteen of the Board of Regents’ eighteen members were appointed by Republican Governor Scott Walker.[87] Only one regent, Democrat Tony Evers, dissented, stating that “[t]his policy will chill and suppress free speech on this campus and all campuses.”[88] The system president, Ray Cross, spoke without any apparent irony about the importance of “teach[ing] students how to engage and listen to those with whom they differ,” leaving it unclear how suspending students for expressing disagreement would convey this lesson.[89]

John K. Wilson, editor of the Academe Blog, noted that the legislative sponsors of the “Tennessee Freedom of Speech on College Campus Bill,” that state’s version of the Goldwater bill, did not exactly have a reputation for upholding academic freedom and protecting free speech: they had previously supported cutting $436,000 from the University of Tennessee-Knoxville’s diversity and inclusion programs and attempted to prohibit funding for Sex Week programs, which aim to “foster a comprehensive and academically-informed conversation about sex, sexuality, and relationships.”[90] Wilson provided a detailed critique of the original draft of the bill, which went far beyond suppressing student protest and “invents a brand new right imposed by state law for students to say anything they want in class, even if it’s disconnected from the content of the course, and leaves professors completely powerless to stop students and keep a class on track for what it’s supposed to cover.”[91] In his view, the “bizarre and burdensome regulations” not only “take[] away from professors the ability to control the classroom and threatens their academic freedom,” but “[they] subject[] students and staff to repressive new rules that can easily be abused to punish campus protest and dissent.”[92] In short, Wilson concludes, “This proposed law isn’t a defense of free speech, it’s an attack on it.”[93]

III. Competing Free Speech Cultures: The Internet Versus the University

Free speech in America is not only a matter of constitutional doctrine. It is also a matter of strongly felt intuitions by a general public not particularly well versed in the nuances of First Amendment law. What determines how Americans will understand and exercise the principle of free speech comes down largely to non-legal norms, norms that emerge from particular settings and practices. We can assess the healthiness of a given free speech culture by reflecting on how well it promotes the values underpinning the First Amendment: truth, autonomy, and democracy. A free speech culture that encourages habits of research, reflection, and self-improvement will be the most successful in advancing these values; a free speech culture that encourages ignorance, impulsivity, and self-satisfaction will be the least. Broadly speaking, the university embodies the former culture, and the Internet embodies the latter.[94] The manufactured campus free speech crisis and the censorious regulations passed in its wake can be viewed as the triumph of Internet free speech culture over university free speech culture.

One of the most influential forces in the creation of the myth of the campus free speech crisis was Milo Yiannopoulos, whose claim to fame is primarily his reputation as an Internet provocateur. Yiannopoulos possesses no particular knowledge or skill that would make him an obvious choice to receive speaking invitations from prestigious universities. At the time he began to appear on college campuses, he was perhaps best known for being permanently banned from Twitter after facilitating an online harassment campaign against Leslie Jones, an African American actress who starred in the 2016 reboot of Ghostbusters.[95] Before Berkeley, his previous speaking engagements at college campuses had been marked by controversy. During a talk at the University of Wisconsin-Milwaukee, Yiannopoulos targeted a transgender student by name, ridiculing the student for filing a Title IX complaint about bathroom access.[96] According to some sources, Yiannopoulos was planning to name undocumented students during his Berkeley talk.[97] After protests erupted at Berkeley and the university canceled his appearance for public safety reasons, Yiannopoulos took to Facebook to politicize the situation and don the mantle of a free speech martyr: “The Left is absolutely terrified of free speech,” he wrote, “and will do literally anything to shut it down.”[98]

Such was Milo’s influence on the campus free speech controversy that Tennessee’s anti-protest bill was also referred to as “the MILO bill,” and a statement from Yiannopoulos was read out loud at the press conference for the bill.[99] “We are winning the war,” it read, “And we will continue to win as long as students, and now defenders of free speech within the government, stand up to ivory-tower intellectuals and left-wing administrators intent on shutting up any speech they don’t find convenient.”[100] According to one sponsor of the bill, Senator Joey Hensley, “Too many times we’ve seen classrooms where the professor doesn’t want to hear both sides of an issue, we’ve heard stories from many students that, honestly, are on the conservative side that have those issues stifled in the classroom.”[101] His sentiments were echoed by another speaker at the press conference, Luke Elliot, the vice president of the University of Tennessee College Republicans. Elliot stated, “Students are often intimidated by the academic elite in the classroom, Tennessee is a conservative state, we will not allow out of touch professors with no real world experience to intimidate eighteen-year-olds.”[102]

The sentiment that professors should not be allowed to “intimidate” their students by teaching them content they do not like is whiplash-inducing coming from the very people who complain about “liberal snowflakes” and “intellectual safe spaces.” It also paints an extraordinary picture of what the supporters of such bills think a university should look like: a place where every discussion must hear out “both sides,” where people with years of training and expertise should have no more status than those with none, where the demonstration of knowledge is considered a threat.

But that is not a description of a university. That is a description of the Internet.

Milo Yiannopoulos, Ann Coulter, and their ilk are not experts, or professors, or intellectuals. They are Internet celebrities. Their appearance on college campuses is objectionable because they are simply not qualified to be there, and universities should not squander precious attention and resources on clowns and provocateurs. But Internet free speech culture takes the First Amendment right of protection for speech and turns it into a demand for promotion of speech. Hence the spate of lawsuits filed by mostly conservative speakers against companies such as Twitter and Facebook over account suspensions and other disciplinary measures[103]: at their heart is the misguided belief that the right to free speech means the right to an audience. The Internet fetishizes engagement over education, controversy over quality, and attention over expertise.

These norms are in direct conflict with the norms of a university. While there are many competing ideas about the goal of higher education, and all universities fall short of the ideal, at the core of the educational project is the desire to learn more—about the world, about other people, about the nature of truth. That project requires discernment, not blind insistence on the value of hearing “both sides.” As Justice Felix Frankfurter explained in his concurring opinion in the 1952 case Wieman v. Updegraff, democracy is built on “disciplined and responsible” public opinion, and “[i]t is the special task of teachers to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens, who, in turn, make possible an enlightened and effective public opinion.”[104]

These habits are why, contrary to the claims of those who believe in the campus free speech crisis, college students as a group are more open-minded and supportive of free speech than the general population. A 2018 Gallup-Knight Foundation survey found that 70 percent of students “preferred their campus to be an ‘open learning environment’ where they might be exposed to offensive speech, while only 29 percent said they preferred a ‘positive’ environment where offensive speech is banned,” making them “more supportive of an open learning environment than U.S. adults overall.”[105] Indeed, “older people and Republicans actually exhibit less tolerance for free expression” than young, left-leaning individuals.[106] Recent studies have also indicated that student appreciation for free speech increases over their time in college, “suggest[ing] that college attendance may actually bolster a student’s support for free speech rather than undermine it.”[107] The number of universities with restrictive speech codes is falling, not rising, and “is currently at an all-time low.”[108]


In 2016, Floyd Abrams, one of the most prominent First Amendment lawyers in the country and the author of the book The Soul of the First Amendment, stated that the single greatest threat facing free speech today “comes from a minority of students[] who strenuously[] and . . . contemptuously, disapprove of the views of speakers whose view of the world is different from theirs, and who seek to prevent those views from being heard.”[109] Such a claim is shocking not only because it so grotesquely mischaracterizes the current state of free speech on college campuses, but because it ignores so many other urgent, alarming, and effective direct attacks on free speech on campuses and elsewhere.

The outsized focus on isolated, headline-grabbing incidents takes attention away from many pressing issues facing college campuses. Those who raise the alarm about universities’ growing intolerance for uncomfortable ideas and students’ alleged demands for safe spaces are largely silent, for example, about the passage of “campus carry” laws, which cater to students irrationally terrified of facing the world without the protection of firearms and create a truly troubling “safe space” that endangers not only the free expression, but also the actual lives, of their fellow students.[110] Self-proclaimed campus free speech defenders have little to say when a dean of students resigns after a right-wing propaganda outlet publicizes old tweets he wrote about racism,[111] or when the U.S. Education Department threatens to withdraw funding for a Middle East Studies program if it continues to emphasize “the positive aspects of Islam,”[112] or when university administrators impose gag rules on college rape victims.[113] They also have very little to say, indeed, about rampant sexual assault and sexual harassment on college campuses, or racialized threats targeting minority students.[114] These issues have a far greater chilling effect on free speech than the occasional student protest of a controversial speaker.

And what of the threat to free speech in the culture at large, led by the occupant of the highest office of the United States? What of Donald Trump’s belief that flag burners should be imprisoned or stripped of citizenship, a view shared by 67 percent of Republicans?[115] Or his desire to “open up our libel laws,” a proposition to which at least one Supreme Court Justice seems amenable?[116] What of his demand that the theater be a “safe and special place” for his Vice-President,[117] his demonization of the press,[118] his attacks on athletes who kneel during the national anthem,[119] and his equation of whistleblowing with treason?[120] Surely the open and repeated hostility to free speech demonstrated by the President of the United States, enforced by his loyal supporters in every branch of the government, is a greater threat than a handful of student protesters. President Trump has said that “it’s embarrassing for the country to allow protesters”[121] when you “don’t even know what side” they’re on; he has expressed longing for the “old days” when “we used to throw them out.”[122] The promoters of the myth of the campus free speech crisis would seem to agree.

The university “will function for the benefit of society, provided it is a center of independent thought.”[123] Its role is never more important than when free speech and democracy itself is under attack. The values promoted by the university—critical reflection, intellectual curiosity, independent thought—­are not only goods in themselves, but also an essential bulwark againt tyranny: “no totalitarian government is prepared to face the consequences of creating free universities.”[124]

The true threat to free speech on college campuses is posed not by university norms on free speech, but by the attack on those norms by the Internet culture of free speech. The Internet model of free speech is little more than cacophony, where the loudest, most provocative, or most unlikeable voice dominates. Whatever else might be said in praise of such a model, it does little to promote knowledge or encourage a diversity of voices. The university model of free speech, by contrast, strives to achieve the “robust exchange of ideas which discovers truth ‘out of a multitude of tongues, [rather] than through any kind of authoritative selection.’”[125] If we want to protect free speech, we should not only resist the attempt to remake college campuses in the image of the Internet, but consider the benefits of remaking the Internet in the image of the university.


[1] See, e.g., Jonathan Chait, Not a Very P.C. Thing to Say: How the Language Police are Perverting Liberalism, N.Y. Mag. (Jan. 27, 2015),­01/not-a-very-pc-thing-to-say.html [­5H7J-FVUP]; Jeannie Suk Gersen, The Trouble with Teaching Rape Law, New Yorker (Dec. 15, 2014), https://www.newyork­ []; Greg Lu­kianoff & Jonathan Haidt, The Coddling of the American Mind, Atlantic (Sept. 2015),­399356/ []; Megan McArdle, Sheltered Students Go to College, Avoid Education, Bloomberg (Aug. 13, 2015),­articles/2015-08-13/sheltered-students-go-to-college-avoid-education [­YV-E388]; Judith Shulevitz, In College and Hiding from Scary Ideas, N.Y. Times (Mar. 21, 2015),­opinion/sunday/judith-shulevitz-hiding-from-scary-ideas.html [­YJ]; Robby Soave, “Oppression Studies,” Actual Oppression Coming to American University, Reason (Jan. 24, 2016), https://reason.­com/2016/01/24/oppression-studies-actual-oppression-com/ [].

[2] Lewis F. Powell, Jr., The Attack on American Institutions, Address at the Southern Industrial Relations Conference 7 (July 15, 1970),­edu/cgi/viewcontent.cgi?article=1008&context=powellspeeches [­V9].

[3] Lewis F. Powell, Jr., Civil Liberties Repression: Fact or Fiction?, Richmond Times-Dis­patch, Aug. 1, 1971, at 1, 3.

[4] See Kathi Valeii, Kent State, Jackson State Survivors Talk Student Activism, Rolling Stone (May 4, 2018),­son-state-survivors-talk-student-activism-629402/ [].

[5] See Mary-Rose Papandrea, The Free Speech Rights of University Students, 101 Minn. L. Rev. 1801, 1840 (2017).

[6] Valeii, supra note 4.

[7] See discussion infra.

[8] Mary Anne Franks, The Cult of the Constitution (2019).

[9] Moira Weigel, Political Correctness: How the Right Invented a Phantom Enemy, Guardian (Nov. 30, 2016), [].

[10] Chait, supra note 1.

[11] Scott Jaschik, “U Chicago to Freshmen: Don’t Expect Safe Spaces,” Inside Higher Ed (Aug. 25, 2016),­ing-students-not-expect-safe-spaces-or-trigger-warnings []. As Heidi Kitrosser notes, much critique of supposed campus intolerance tends to conflate several disparate and poorly defined issues. Heidi Kitrosser, Free Speech, Higher Education, and the PC Narrative, 101 Minn. L. Rev. 1987, 1992–93 (2017) (“[T]here is tremendous imprecision throughout the public discourse. This is especially, though not exclusively, true in statements by anti-PC critics. Many commentators decry political correctness as a threat to free speech but leave unclear whether, by political correctness, they mean campus speech codes, informal social pressures, or something else. Similarly, in the 2014–2016 reports, PC critics refer in mocking but uniformly vague terms to such phenomena as trigger warnings, safe spaces, and microaggressions. Such imprecision impacts the quality of the debate considerably.”).

[12] Stephanie Saul, Dozens of Middlebury Students Are Disciplined for Charles Murray Protest, N.Y. Times (May 24, 2017), [].

[13] See id.

[14] Id.

[15] Id.

[16] See Doug Lederman & Scott Jaschik, Amid Violence, Yiannopoulos Speech at Berkeley Canceled, Inside Higher Ed (Feb. 2, 2017),­2017­/02/02/violent-protests-visiting-mob-lead-berkeley-cancel-speech-milo-yiannopoulos [https:­//].

[17] Id.

[18] Id.

[19] Thomas Fuller & Stephanie Saul, Berkeley Is Being Tested on 2 Fronts: Free Speech and Safety, N.Y. Times (Apr. 21, 2017), [].

[20] See Daniel Marans, Bernie Sanders Condemns Threats Against Ann Coulter Speech at Berkeley, Huffington Post (Apr. 22, 2017), [].

[21] Olivia Beavers, Warren on Coulter: ‘Let her speak’, The Hill (Apr. 25, 2017), [https://perma.­cc/P7QU-E937].

[22] ACLU Statement on Ann Coulter Speech, ACLU (Apr. 26, 2017),­news/aclu-statement-ann-coulter-speech [].

[23] Krissy Eliot, Ann Coulter at Berkeley: Untangling the Truth, Cal. Mag. (May 6, 2017),­tangling-truth [].

[24] Id.

[25] Id.

[26] Id.

[27] Id.

[28] Id.

[29] Public Affairs, Milo Yiannopoulos Event Canceled After Violence Erupts, Berkeley News (Feb. 1 2017), [].

[30] Media Release, Middlebury Police Dep’t., Police Close the Investigation into the Disturbance at Middlebury College Following the March 2, 2017 Presentation by Charles Murray (May 23, 2017),­000685.docx [].

[31] Mike Carter & Steve Miletich, Couple Charged with Assault in Shooting, Melee During UW Speech by Milo Yiannopoulos, Seattle Times (May 1, 2017), http://www.seattletimes.­com/seattle-news/crime/couple-charged-with-assault-in-shooting-melee-during-uw-speech-by-milo-yiannopoulos/ [].

[32] Id.

[33] Id.

[34] Franks, supra note 8, at 141; Alex Morey, Campus Disinvitations Set Record in 2016, FIRE (Dec. 20, 2016), https://www.thefire.­org/campus-disinvitations-set-record-in-2016/ [].

[35] Morey, supra note 34.

[36] National Center for Educational Statistics, Fast Facts: Educational Institutions, [].

[37] Franks, supra note 8, at 142. Even if some disinvitations go unreported, it is difficult to imagine that their proportion could be anything more than miniscule.

[38] Zack Beauchamp, Data Shows a Surprising Campus Free Speech Problem: Left-Wingers Being Fired for Their Opinions, Vox (Aug. 3, 2018),­itics/2018/8/3/17644180/political-correctness-free-speech-liberal-data-georgetown [https://­].

[39] Adam Johnson, NYT’s Campus Free Speech Coverage Focuses 7-to-1 on Plight of Right, Fairness & Accuracy in Reporting (Nov. 15, 2017), [].

[40] See Franks, supra note 8, at 147–48.

[41] See Simon Parkin, Gamergate: A Scandal Erupts in the Video-Game Community, New Yorker (Oct. 17, 2014), [].

[42] Erin Alberty, Anita Sarkeesian Explains Why She Canceled USU Lecture, Salt Lake Trib. (Oct. 16, 2014), [https://­].

[43] Franks, supra note 8, at 147.

[44] Id.

[45] Id.

[46] Alberty, supra note 42.

[47] NPR Staff, One Feminist Critic’s Battle with Gaming’s Darker Side, WBUR News (Oct. 18, 2014), [].

[48] Alberty, supra note 42.

[49] Id.

[50] Id.

[51] Colleen Flaherty, Old Criticisms, New Threats, Inside Higher Ed (June 26, 2017), [].

[52] A case that, like so many other supposed incidents of campus suppression of conservative ideas, was more complicated than media coverage indicated. See Noah Berlatsky, How Right-Wing Media Has Tried to Stifle Student Speech at Evergreen State College, Pac. Standard (June 14, 2018), [].

[53] Eoin Higgins, Threats to Campus Speech Don’t Alarm Media When They Come from the Right, Fairness & Accuracy in Reporting (June 15, 2017), [].

[54] Colleen Flaherty, ‘Concession to Violent Intimidation,’ Inside Higher Ed (June 1, 2017), [].

[55] Id.

[56] Colleen Flaherty, AAUP Condemns Threats Against Faculty Members, Inside Higher Ed (June 23, 2017), [].

[57] Colleen Flaherty, Threats for What She Didn’t Say, Inside Higher Ed (June 19, 2017), [].

[58] Valerie Strauss, New Conservative ‘Watch List’ Targets Professors for Advancing ‘Leftist Propaganda,’ Wash. Post (Dec. 1, 2016),­answer-sheet/wp/2016/12/01/new-conservative-watchlist-targets-professors-for-advancing-leftist-propaganda/ [].

[59] See Campus Reform, [] (last visited Nov. 14, 2019); College Fix, [https://per­].

[60] Am. Ass’n of Univ. Professors, Targeted Online Harassment of Faculty (Jan. 31, 2017), [­JR].

[61] Amy Binder, There’s a Well-Funded Campus Industry Behind the Ann Coulter Incident, Wash. Post (May 1, 2017),­05/01/theres-a-well-funded-campus-outrage-industry-behind-the-ann-coulter-incident/?ut­m_term=.112bf3354229 [].

[62] Id.

[63] Id.

[64] Id.

[65] Ctr. for Media and Democracy, Exposed: The State Policy Network—The Powerful Right-Wing Network Helping to Hijack State Politics and Government 2, 21 (2013),­port_FINAL.pdf [https://per­].

[66] Id.

[67] See Franks, supra note 8, at 141 (citing Ctr. for Media and Democracy, supra note 65, at 2).

[68] Foundation for Individual Rights in Education, Spotlight on Speech Codes 2017, [https:­//].

[69] Jim Sleeper, The Conservatives Behind the Campus ‘Free Speech’ Crusade, Am. Prospect (Oct. 19, 2016), [].

[70] Nonprofit Explorer, Foundation for Individual Rights in Education Inc: Full Text of “Form 990” for Fiscal Year Ending June 2017, ProPublica,­nonprofits/organizations/43467254/201703069349300405/IRS990, [].

[71] Sleeper, supra note 69.

[72] Whitney v. California, 274 U.S. 357, 377 (1927) (Brandeis, J., concurring).

[73] ACLU Statement on Ann Coulter Speech, supra note 22.

[74] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 514 (1969).

[75] Id. at 508, 513. 

[76] Id. at 508–09 (citation omitted).

[77] Christina E. Wells, Free Speech Hypocrisy: Campus Free Speech Conflicts and the Sub-Legal First Amendment, 89 U. Colo. L. Rev. 533, 558 (2018) (footnote omitted).

[78] Tinker, 393 U.S. at 525 (Black, J., dissenting).

[79] Jeremy Bauer-Wolf, Free Speech Laws Mushroom in Wake of Campus Protests, Inside Higher Ed (Sept. 16, 2019),­ing-laws-protect-college-students-free-speech [].

[80] See Goldwater Inst., Campus Free Speech Act, https://gold­­Web.pdf [].

[81] See Stanley Kurtz et al., Campus Free Speech: A Legislative Proposal 3, Goldwater Inst. (2019), [].

[82] Franks, supra note 8, at 143.

[83] Jeremy W. Peters, In Name of Free Speech, States Crack Down on Campus Protests, N.Y. Times (June 14, 2018), [].

[84] Kurtz et al., Campus Free Speech: A Legislative Proposal 20, Goldwater Inst.,­mpus%20Free%20Speech%20Paper.pdf [].

[85] Ralph Wilson, Koch Network’s Student Protest Ban Disguised as “Campus Free Speech,” UnKoch My Campus (Mar. 1, 2017), [].

[86] Todd Richmond, University of Wisconsin Approves Free Speech Policy that Punishes Student Protesters, Chi. Trib. (Oct. 6, 2017),­world/midwest/ct-university-of-wisconsin-protest-punishment-20171006-story.html [https://­].

[87] Id.

[88] Id.

[89] Id.

[90] Tricia Culligan, University of Tennessee Shuts Diversity Office After Sex Week, Gender Controversy, U.S. News (May 21, 2016),­sity-tennessee-shuts-diversity-office-after-sex-week-gender-controversy-n578101 [https://­]; John K. Wilson, The Tennessee Legislature’s Attack on Free Speech, Academe Blog (Feb. 12, 2017),­es-attack-on-free-speech/ [].

[91] Wilson, supra note 90.

[92] Id.

[93] Id. Wilson wrote a much more positive follow-up post in May 2017 after the bill was rewritten in consultation with FIRE to remove its most censorious aspects. See John K. Wilson, The Tennessee Legislature’s Defense of Campus Free Speech, Academe Blog (May 11, 2017),­us-free-speech/ [].

[94] See Zeynep Tufekci, It’s the (Democracy-Poisoning) Golden Age of Free Speech, WIRED (Jan. 16, 2018),­ship/ [] (“Creating a knowledgeable public requires at least some workable signals that distinguish truth from falsehood. Fostering a healthy, rational, and informed debate in a mass society requires mechanisms that elevate opposing viewpoints, preferably their best versions. To be clear, no public sphere has ever fully achieved these ideal conditions—but at least they were ideals to fail from. Today’s engagement algorithms, by contrast, espouse no ideals about a healthy public sphere.”)

[95] Elle Hunt, Milo Yiannopoulos, Rightwing Writer, Permanently Banned from Twitter, Guardian (July 20, 2016),­opoulos-nero-permanently-banned-twitter [].

[96] Claire Landsbaum, Alt-Right Troll Milo Yiannopoulos Uses Campus Visit to Openly Mock a Transgender Student, The Cut (Dec. 15, 2016),­milo-yiannopoulos-harassed-a-trans-student-at-uw-milwaukee.html [].

[97] Maya Oppenheim, UC Berkeley Protests: Milo Yiannopoulos Planned to ‘Publicly Name Undocumented Students’ in Cancelled Talk, Independent (Feb. 3, 2017), https://www.indep­ [­TP].

[98] Claire Landsbaum, Alt-Right Troll’s Visit to UC Berkeley Canceled After Student Protests, The Cut (Feb. 2, 2017), [].

[99] Wilson, supra note 85.

[100] Id.

[101] Wilson, supra note 83.

[102] Id.

[103] Jane Coaston, The Facebook Free Speech Battle, Explained, Vox (May 14, 2019),­p-platform-publisher [].

[104] 344 U.S. 183, 196 (1952) (Frankfurter, J., concurring).

[105] Jeffrey Adam Sachs, The ‘Campus Free Speech Crisis’ Is a Myth. Here Are the Facts., Wash. Post (Mar. 16, 2018),­03/16/the-campus-free-speech-crisis-is-a-myth-here-are-the-facts/ [].

[106] Catherine Rampell, Older People and Republicans, Threatening Free Speech, Wash. Post (Nov. 2, 2017),­ple-and-republicans-threatening-free-speech/ [­P].

[107] Sachs, supra note 105.

[108] Id.

[109] Jeff Robbins, Floyd Abrams Speaks Freely to Political Correctness on America’s Campuses, Observer (May 9, 2016), []. 

[110] Franks, supra note 8, at 152.

[111] Wesley Jenkins, Dean of Students at U. of Alabama Resigns After Breitbart Resurfaces Old Tweets, Chron. Higher Ed. (Sept 6, 2019), [].

[112] Caroline Kelly, Education Department Says Duke-UNC Middle East Studies Program Favors Islam over Christianity, Judaism, CNN (Sept 19, 2019),­2019/09/19/politics/education-department-middle-east-studies-islam-christianity-judaism/­index.html [].

[113] Tyler Kingkade, He Admitted to Sexual Assault, But She’s the One They Tried to Silence, Huffington Post (Mar. 8, 2016), [].

[114] Franks, supra note 8, at 152.

[115] Jamie Ballard, 67% of Republicans Say People Who Burn the US Flag Should be Stripped of Citizenship, YouGov (July 11, 2019),­politics/articles-reports/2019/07/11/flag-burning-citizenship-trump-poll [­AEM-6ZRL].

[116] Adam Liptak, Justice Clarence Thomas Calls for Reconsideration of Landmark Libel Ruling, N.Y. Times (Feb. 19, 2019),­clarence-thomas-first-amendment-libel.html [].

[117] Joanna Walters, Trump Demands Apology from Hamilton Cast After Mike Pence Booed, Guardian (Nov. 19, 2016), [].

[118] See Brian Stelter, Why Trump’s Constant Attacks on an Independent Press Are So Dangerous, CNN (Sept. 2, 2019), [].

[119] Jacqueline Thomsen, Trump Renews Attacks on NFL Players, Calling for Suspensions, The Hill (Aug. 10, 2018), [].

[120] Maggie Haberman & Katie Rogers, Trump Attacks Whistle-Blower’s Sources and Alludes to Punishment for Spies, N.Y. Times (Sept. 26, 2019),­2019/09/26/us/politics/trump-whistle-blower-spy.html [].

[121] Felicia Somnez, Trump Suggests that Protesting Should Be Illegal, Wash. Post (Sept. 5, 2018),­al/2018/09/04/11cfd9be-b0a0-11e8-aed9-001309990777_story.html [].

[122] Id.

[123] Wieman v. Updegraff, 344 U.S. 183, 197 (1952) (Frankfurter, J., concurring).

[124] Id.

[125] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 512 (1969) (alteration in original) (quoting Keyishian v. Bd. of Regents, 385 U.S. 589, 603 (1967)).

Walking Out the Schoolhouse Gates

In the wake of the Marjory Stoneman Douglas High School shooting in Parkland, Florida, tens of thousands of students from across the United States walked out of their classrooms in protest. One such walkout, known as #NationalSchoolWalkout (“#NSW”), rallied students from over 2,500 schools to join in a seventeen-minute demonstration on April 20, 2018.[1] The date marked the nineteenth anniversary of the Columbine High School Massacre.[2] The seventeen minutes represented each of the seventeen victims of the shooting.[3] And the walkout itself symbolized a demand for gun reform legislation.[4] The student who launched the #NSW movement also developed a website that provided a “walkout planning guide.”[5] The planning guide advised student leaders and organizers on how to work with school administrators, plan an agenda, and promote the event.[6] There was, however, no equivalent “walkout response guide” for school administrations contending with student participation in the #NSW. In fact, the reactions of various school district authorities to the planned student protests proved as diverse as their geographic locations. 

For instance, Baltimore County Public Schools viewed the walkouts as a “constructive way for students to exercise their First Amendment rights.”[7] In that vein, Baltimore County Public Schools allowed their students to take part in the walkouts and assured students they would not be punished for peaceful participation.[8] Meanwhile, the superintendent of Texas’s Needville Independent School District took the opposite approach, using a school Facebook account to threaten students with a three-day suspension for joining a walkout.[9] At Greenbriar High School in Arkansas, three students who took part in a walkout faced corporal punishment—each student received swats with a paddle for their walkout participation.[10] Kansas’s Shawnee Mission School District allowed students to participate in the #NSW but refused to sponsor the event.[11] Despite an effort to embrace the middle ground, the Kansas school district still found itself embroiled in a lawsuit when a middle school tried to censor students’ speech mid-walkout.[12]

Even though the local school districts in Maryland, Texas, Arkansas, and Kansas all reacted to the student walkout differently, the scope and nature of students’ free speech rights took center stage nationwide. Interestingly, however, little ink has been spilled on the free speech rights of students in the context of the student walkout. Yet walkouts are neither a new means of student political expression nor a new problem for school districts.[13] In fact, the underlying student activism involved in a walkout parallels the very student expression that the landmark decision of Tinker v. Des Moines sought to protect. Conversely, thousands of students walking out of class is the kind of disruption, disorder, and distraction that school administrators are supposed to guard against. This tension places school administrators in the precarious position of needing to strike the right constitutional balance between respecting students’ First Amendment rights, on the one hand, and preserving order in the school setting on the other. The range of local administrative attempts to strike this balance in the context of national school walkouts, particularly the #NSW protests, demonstrates the need for scholarship on the topic. This Essay, in response, contributes to the under-explored topic of student free speech rights in connection to student walkouts in three ways. First, this Essay lays out a framework for analyzing student free speech rights during permitted and unpermitted walkouts under the Supreme Court’s current school speech jurisprudence. Second, it identifies the problems the current framework creates for both students and administrators. And third, it proposes a judicial solution.

Part I of this Essay briefly describes the Court’s decision in Tinker and examines the protections afforded to students participating in prohibited walkouts. In addition, this Part submits that school restrictions and the subsequent punishment of students engaged in unpermitted walkouts are likely constitutional. Part II addresses student free speech rights when the school permits student participation in the walkout. Part II posits that student expression during a permitted walkout will receive constitutional protection, but the scope of that protection will depend on whether the speech falls under Tinker or Hazelwood v. Kuhlmeier. Since student free speech rights vary depending on whether Tinker or Hazelwood applies, Part III discusses the forum analysis and imprimatur determination used to decide whether a student walkout falls under Tinker or Hazelwood. Part IV asserts that the current framework offers inadequate guidance for administrators and too little protection for student political speech. Specifically, this Part identifies the practical, administrative, and constitutional issues involved in Hazelwood’s application to student political speech in the walkout context. Ultimately, this Essay argues that both unpermitted and permitted walkouts should fall under the exclusive purview of Tinker. Part V offers concluding remarks.

I.  Free Speech Rights of Students in the Unpermitted Walkout Context

In 1965, high school students in Des Moines, Iowa, wore black armbands to express their opposition to the Vietnam War.[14] In a matter of days, the high school adopted a policy that suspended any student for refusing to remove the armband.[15] In Tinker, the Supreme Court held that the school policy violated the students’ First Amendment rights and famously stated that neither students nor teachers “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”[16] To suppress student speech after Tinker, a school must show that “its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”[17] In other words, Tinker generally requires a school to tolerate student expression, even on “controversial subjects.”[18] Yet that toleration is not without limit. When pure student speech turns into expressive conduct that could cause a “substantial disruption of or material interference with school activities,” then the student speech loses its constitutional protection.[19]  

Pure speech and expressive conduct are naturally implicated in the walkout context. The very act of leaving the classroom to protest is expressive conduct.[20] Additionally, the chants, signs, and speeches that accompany the physical walkout qualify as pure speech. In the handful of decisions applying Tinker to unpermitted student walkouts, the courts’ First Amendment analysis generally describes student walkout activity as either pure speech or expressive conduct.[21] That said, when a school administration has not signed off on a walkout, the “forecast of a reasonable likelihood of substantial disruption” posed by an unpermitted walkout allows the school to restrict and punish the expressive walkout conduct.[22] By contrast, even when a walkout is unpermitted, the school cannot punish the pure speech components of a walkout unless the speech violates a school regulation or policy.[23] Put simply, the government has a “freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”[24]

This differentiation between expressive conduct and pure speech arises from courts’ longstanding recognition of the government’s substantial interest in maintaining academic order and discipline.[25] It follows that school officials possess the “inherent authority to prescribe and control conduct in the schools.”[26] For instance, in Dodd v. Rambis, student distribution of leaflets advertising a walkout qualified as expressive conduct, but the court upheld the subsequent student discipline as constitutional because the promoted walkout would have substantially disrupted and materially interfered with school activities.[27]

Conversely, when the walkout activity constitutes an instance of “pure speech rather than conduct,” school officials may curtail or restrict the activity if they can “reasonably forecast . . . substantial disruption.”[28] Yet, absent a school regulation or policy, like the “violation of a statute or school rule,” school officials may not punish students for use of pure speech.[29] For example, in Karp v. Becken, the school was permitted to curtail student speech by confiscating the walkout protest signs a student retrieved from his car. That student nonetheless was constitutionally immune from punishment because the signs qualified as “pure speech” and the school had no explicit policy on suspension of students for signs.[30] In short, a student’s spoken or written speech that accompanies expressive walkout conduct can be restricted if it would lead to “substantial disruption.”[31] But the student can be punished only if the school can provide further justification like a school policy or rule.[32] 

Ultimately, however, the distinction between expressive conduct and pure speech is one without much bite, as schools often possess broad policies that provide a textual basis to punish a student’s pure speech. In Karp, for instance, the student’s punishment would have been upheld if the school had suspended the sign-wielding student for going to his car during school hours instead of for the signs themselves.[33] It follows that schools’ broad ability to regulate student conduct will often allow administrators to punish students’ pure speech during a walkout without explicitly saying so. The breadth of school regulations that prohibit truancy, class disturbance, and the like, will provide schools with the required textual justification to punish a student’s pure speech in the context of a walkout. In practice, then, whether speech is categorized as pure speech or expressive conduct carries facial, but ultimately unmeaningful, weight during unpermitted student walkouts as both forms of speech will receive similar levels of protection. That said, students who wish to engage in civic activism through walkouts are not entirely out of luck. This Essay now turns to the increased free speech protections that exist when schools permit, rather than prohibit, student walkouts.

II.  Students’ Free Speech Rights in the Permitted Walkout Context

To restrict a permitted walkout under Tinker, a school’s “reasonable forecast of substantial disruption” must go above and beyond the expressive conduct and pure speech that a walkout naturally entails. Tinker’s central command is that schools must tolerate student expression on controversial, political, and unpopular issues, even if it proves uncomfortable or unpleasant for school authorities.[34] Therefore, when schools permit a walkout, which at a minimum involves promising not to punish students for their participation, administrators implicitly approve the basic expressive conduct and pure speech involved in the demonstration. By permitting the walkout, the school is essentially announcing that neither the walkout itself nor the accompanying pure speech will cause a “substantial disruption with discipline or student safety.”[35]

In M.C. ex rel. Chudley v. Shawnee Mission Unified School District No. 512, for instance, the school district allowed students to participate in the #NSW demonstration.[36] The school made it clear, however, that the walkout was student-led, optional, and not school-sponsored.[37] After disclaiming sponsorship, the school district then attempted to prohibit student discussion of gun-violence, shootings, and gun reform during the demonstration.[38] Shortly thereafter, a certain student who was punished for discussing prohibited topics during her scheduled walkout speech filed suit.[39] The district court applied Tinker to assess the school’s actions in response to the walkout speech.[40] It found that the school could not justify the speech restrictions based solely on its desire to avoid controversy.[41] Since there was no additional indication that the permitted walkout would threaten student safety, the school also could not justify the content restrictions on speech through any reasonable forecast of substantial disruption.[42] Simply put, if a school permits a walkout, but does not sponsor the walkout, then Tinker applies and the underlying expressive conduct and pure speech of the walkout will receive constitutional protection unless the school presents a legitimate justification beyond a desire to avoid controversy.[43] But that invites the question, what are students’ free speech rights when the school both permits and sponsors the student walkout?

In Hazelwood v. Kuhlmeier, the Supreme Court explained that when speech is “school-sponsored,” or when a school affirmatively promotes student speech, then the school has more leeway to restrict the speech without offending the First Amendment.[44] There, the Court considered school censorship of two controversial student newspaper articles, one about teen pregnancy and the other about divorce.[45] The Court held that if the student speech concerned the “educators’ authority over . . . expressive activities that students, parents, and members of the public might reasonably perceive to bear the imprimatur of the school,” then the speech was considered sponsored by the school.[46] It followed that school administrators “[did] not offend the First Amendment” by restricting the speech as long as the restrictions were “reasonably related to legitimate pedagogical concerns.”[47]

The Hazelwood standard, by and large, is extremely deferential to school curtailment of student expression, be it speech or conduct, once the court deems the student expression to bear the imprimatur of the school.[48] Accordingly, restrictions on speech during a school-sponsored event that are motivated by a “desire to avoid controversy within the school environment” are constitutional under the Hazelwood standard.[49] For that reason, when a school permits a student walkout, “sit-in,” or a different “on-property alternative,”[50] and the demonstration is found to be school-sponsored, the school can both curtail students’ conduct and restrict controversial, political speech during the permitted activity.[51] 

In summary, when a school allows students to participate in a walkout, the scope of student free speech rights will depend on whether the walkout falls under Tinker or Hazelwood. When the school does not sponsor the student activity, Tinker applies. Students, therefore, cannot be punished for engaging in the walkout itself or for the accompanying pure speech, no matter how political or controversial, absent further justifications. By contrast, when the student activity is school-sponsored and Hazelwood applies, a school will be able to restrict student political speech and curtail the expressive conduct, even if the only justification is to avoid controversy. This means that a student’s free speech rights will hinge on whether the student activity is categorized as school-sponsored—signifying that it is perceived to bear the imprimatur of the school.  

III.  The Hazelwood, “School-Sponsored” Calculation

To determine whether a student walkout falls under Hazelwood, courts first consider whether the student speech bears the imprimatur of the school, and second, whether the student speech occurred in a school-sponsored, non-public forum.[52] Broadly speaking, student speech satisfies Hazelwood’s imprimatur requirement when the speech is “so closely connected to the school that it appears the school is somehow sponsoring the speech.”[53] In the context of a student walkout, the imprimatur determination will largely turn on the degree of school involvement in walkout planning and supervision.[54] For instance, in Fleming v. Jefferson County School District R-1, a school’s tile painting and installation project bore the “imprimatur of the school” because school administrators initiated the endeavor, organized the event, paid for the tiles, directed the painting, and even developed guidelines for tile content and screening.[55] Likewise, in Corder v. Lewis Palmer School District No. 38, a graduation ceremony carried the school’s imprimatur because school officials planned the event, chose its speakers, and reviewed the speeches.[56] These examples make it apparent that for a walkout to bear the imprimatur of the school, administrative involvement must go beyond cursory supervision of the walkout. Instead, school officials must play a significant role in the walkout itself.

In addition to school administrative involvement, the walkout imprimatur determination will also depend on the public’s awareness of a student-led walkout at the national, state, or local level. For example, in M.C. ex rel. Chudley v. Shawnee Mission Unified School District No. 512, the walkout fell under Tinker, as opposed to Hazelwood, because no student, parent, or member of the public would think the “nationally organized, student-led” #NSW demonstration “bore the imprimatur of the school.”[57] Practically speaking, then, if a walkout is coordinated by students at a national level and involves an issue of widespread controversy, members of the public are less likely to believe the walkout was sponsored by the school. In contrast, if a school walkout movement is relatively unknown to the public and planned by students at the local level, members of the community are more likely to believe it is a school-sponsored activity. Thus, the Hazelwood “imprimatur” calculation hinges on whether a school is significantly involved in the organization of the walkout and whether the general public is aware that the walkout is “student-led” as opposed to “school-sponsored.”

As for the second prong—the public forum analysis—a court will consider whether a school has designated a public forum. One might assume that the “public” forum question would answer itself in the context of a “public” school walkout. Public schools, however, are distinguished from places like streets, parks, and other traditional public forums whose primary purposes are “assembly, communicating . . . and discussing public questions.”[58] In these traditional public forums, the government’s ability to restrict speech is sharply curtailed.[59] But since “public schools do not possess all of the attributes of . . . traditional public forums,” the government may impose reasonable content restrictions on the speech of “students, teachers, and other members of the school community.”[60] By default, therefore, public schools are not categorized as public forums in the context of school-sponsored activities. Yet, if public school authorities “by their policy or practice” intentionally open school facilities to “indiscriminate use by the general public” then the school designates a public forum.[61] Once a school has opened a public forum, the content of the student speech is protected.[62] Thus, the key question in the school walkout forum analysis is whether a public school has transformed itself into a designated public forum by opening its facilities to indiscriminate public use.

Generally, the question of whether a school has designated a public forum turns on a highly fact-specific inquiry that varies by circuit. For the most part, courts will examine a school district’s “polic[ies] and practice[s]” concerning a certain activity, facility, or program when deciding whether a school created a designated public forum.[63] Courts differ, nonetheless, in the weight they accord the public forum category. Some circuits treat the forum analysis as a subset of an ultimate imprimatur determination.[64] Other circuits treat the forum analysis as an alternative to the imprimatur calculation—meaning that the finding of a designated public forum signifies that the activity in question is not school-sponsored.[65] The varying weight conferred on the public forum category can create inconsistent and unpredictable results when it comes to deciding whether Hazelwood applies.[66] All in all, however, the finding that a school did not create a public forum will by and large weigh in favor of the application of Hazelwood.[67] This means that if a student walkout takes place in a nonpublic forum, the school may impose reasonable, content-based restrictions on student speech. By contrast, if a school permits a walkout and opens it up to indiscriminate use by its students, it designates a public forum. And in a designated public forum, the school cannot restrict student speech merely because it wishes to avoid controversy. Other things being equal, the school cannot limit student expression during a permitted walkout unless the restriction serves a compelling state interest—meaning Tinker applies.  

In summation, the Hazelwood standard will apply to a permitted school walkout when two factors are met. First, the “imprimatur” calculation hinges on whether a school is significantly involved in the organization of the walkout and whether the general public is aware that the walkout is “student-led” as opposed to “school-sponsored.” Second, the walkout must occur in a school-centric, nonpublic forum. Admittedly, both prongs turn on fact-specific, interconnected considerations that will vary based on the school district and the particular walkout. For instance, in a #NSW demonstration in Montgomery County, Maryland, the school replaced the walkout with “on-property alternatives” like letter-writing, dialogue sessions, and moments of silence.[68] Because the school supplanted the #NSW with its own activities and did not appear to then open those activities to indiscriminate use by its students, Hazelwood would likely apply. Since Hazelwood applies, the school would be able to restrict student political speech and curtail the expressive conduct in the permitted on-property alternatives, even if the sole justification is to avoid controversy. But on the other hand, if Tinker applies to a student walkout demonstration, the school could not punish the students for engaging in the walkout itself or for the accompanying pure speech, no matter how political or controversial, absent further compelling justifications. Given all this, the Hazelwood, “school-sponsored” calculation is crucial for determining what amount of free speech the student walkout participators will enjoy.

IV. Applying the Walkout Framework to the Free Speech Rights of Students Marching Forward

If the prior exploration of student free speech rights makes anything clear, it is that the Court’s First Amendment jurisprudence, when applied to student walkouts, results in an analysis as potentially complicated and disordered as many of the walkouts themselves. Free speech rights will vary depending on whether the walkout is permitted or unpermitted; whether pure speech or expressive conduct is at issue; and whether a multi-factor, forum-focused analysis places the walkout under Tinker, as opposed to Hazelwood. In summary, if a school does not permit a walkout, neither the walkout conduct nor the pure speech is likely to receive protection under Tinker. At the same time, if a school does permit a walkout, and the administration becomes so involved that it appears to be ‘school-sponsored,’ then the school can restrict the content of student speech. For student speech to receive any protection, the walkout must be permitted and Tinker must apply. Thus, under the current framework student political speech voiced during a walkout receives but a narrow window of protection.

Yet, at the heart of Tinker lies student freedom to engage in political dialogue. Fifty years after that seminal decision, students are walking out of class to protest gun violence and climate change instead of donning black armbands in opposition to the Vietnam War.[69] The mode and subject matter of student political speech, however, are not the only things to have evolved. In the half-century since Tinker, the Supreme Court has chipped away at student speech rights—the primary blow coming from Hazelwood.[70] When that precedent is applied to student walkouts, it allows schools to permit student demonstrations but then restrict the content of student speech. The high level of deference afforded schools under the Hazelwood standard makes it difficult to argue that the content-based restrictions are unrelated to a school’s pedagogical purpose.[71]

Although Hazelwood’s deference to a school may be justified in the context of a school newspaper, a high school graduation, or a school decoration project, it seems less appropriate in the context of a student walkout for multiple reasons. To begin with, several circuits have held that if a student speech activity falls under Hazelwood, a school’s regulation of that speech’s content does not have to be viewpoint neutral.[72] This means when Hazelwood applies, a school may restrict student speech for the sole reason that administrators disagree with that student’s point of view. For instance, if a #NSW demonstration met the Hazelwood standard, administrators could theoretically restrict the speech of a pro-gun student and at the same time allow the speech of an anti-gun student, or vice versa. The First Amendment should not allow administrators to pick and choose which speech will be silenced based on unwelcome viewpoints.

Moreover, the Hazelwood standard puts administrators in a predicament. Well-meaning educators who wish to encourage student civic activism through walkout participation may unintentionally curtail student free speech rights when their enthusiasm causes them to become too involved. Simply put, the more involved a school administration is in a given event, the more likely the appearance of school sponsorship. In addition, the imprimatur and forum analysis used to determine whether the event is school-sponsored often makes it difficult to know when a school is crossing into Hazelwood territory. Consider the #NSW demonstration that occurred in Virginia’s Stafford County Public Schools.[73] In lieu of the planned walkouts, school administrators established safe places within the building allowing students to participate in “sit-ins.”[74] On the one hand, the role of school officials in this instance seemed to go far beyond ‘cursory supervision’—indeed, administrators supplanted the walkout with their own event, the ‘sit-in.’ On the other hand, the #NSW walkouts were coordinated by students at a national level and therefore members of the general public may not perceive the opinions expressed at the ‘sit-in’ to “bear the imprimatur of the school.” Likewise, it is unclear whether administrators intended to designate the sit-in event as a public forum, open to indiscriminate student use, or if they reserved the forum as a school-centric, non-public forum. With the various Hazelwood factors pointing in all directions, the sit-in’s status, and thus administrators’ ability to impose content restrictions on student speech, is ambiguous. For educators contending with a walkout, then, Hazelwood’s murky, inconclusive analysis is of little help in determining the level of school involvement necessary to meet or avoid Hazelwood’s school-sponsored standard.

Finally, as Tinker made clear, students’ personal, political speech is the very speech the First Amendment was intended to protect.[75] Schools, therefore, must perform their function “within the limits of the Bill of Rights.”[76] Part of this function is educating students for citizenship in a pluralistic society.[77] It follows that schools maintain both a constitutional duty to respect student political speech and an academic duty to promote tolerance of diverse political perspectives. Consequently, the potential for Hazelwood’s content-restricting application to the political, highly personal speech of student-initiated walkouts is at odds with both Tinker and a school’s pedagogical purpose. Hazelwood allows school administrators to engage in viewpoint discrimination, provides confusing guidance as to what speech may be silenced, and is inherently at odds with the promises of Tinker and a school’s function in a democratic society.

Hazelwood’s ill fit to the student political speech at issue in walkouts calls for a solution. One possible answer is for courts to eschew the Hazelwood inquiry entirely, deciding that all walkout demonstrations fall exclusively under the purview of Tinker. Fifty years ago, Tinker struck a balance between a school’s need to maintain order and a student’s free speech rights. Fifty years later, that balance is just as salient. Normatively speaking, the sole application of Tinker would adequately protect student political speech while also granting schools enough leeway to preserve discipline. Furthermore, such a solution is judicially feasible under the current school speech jurisprudence.

Under Tinker, schools retain the ability to preserve order by simply saying no to a walkout. As explained above, the underlying conduct, and most often, the pure speech involved in an unpermitted walkout can be both punished and restricted.[78] At the outset, this may seem like an unduly harsh limitation on a student’s ability to engage in political activism. Yet, teachers, administrators, and other students need stability in the school environment to accomplish the primary goal of a school—education. Moreover, the denial of a walkout request does not silence student political speech. Tinker makes it clear that students are free to engage in conversation about political subjects at school—as long as it does not substantially disrupt school activity.[79] Students are also still free to engage in political protest activity outside of school hours. In sum, the need to maintain discipline in the education environment is such an important interest that school ability to forbid a walkout under Tinker is a desirable outcome.

If a school does elect to permit a walkout, the application of Tinker adequately protects student political speech. When the administration permits a walkout, and the walkout falls solely under Tinker, the institution is required to tolerate student free speech—no matter the viewpoint. This is not to say, however, that students’ freedom of speech in such contexts is not without limits. Tinker and its progeny allow a school to shut down certain problematic walkout speech and behavior. Under current precedent, a school does not have to tolerate walkout speech that is lewd, indecent, or obscene.[80] Likewise, a school could shut down speech that promotes drug use.[81] Lower court rulings also make it clear that Tinker does not require a school to permit racially inflammatory speech that administrators reasonably foresee could be substantially disruptive to the school environment.[82] And, of course, if a school reasonably feared that tension over a student walkout would result in violence or a threat to student safety, then the incendiary conduct could be restricted. In short, exclusive application of Tinker to permitted school walkouts gives schools adequate flexibility to ensure student safety and proscribe certain types of speech that would be truly disruptive to the school environment.

Importantly, this approach would also facilitate cooperation between students and administrators. Once students realize that excessive administrative involvement leads to the application of Hazelwood, that knowledge may discourage students from working with administrators to plan a safe, productive walkout. Conversely, keeping walkouts under Tinker’s purview would allow students to feel confident that working with administrators to create a secure walkout environment would not result in restrictions on their political speech.

While normatively desirable, the exclusive application of Tinker to permitted walkouts is also judicially feasible under current school speech jurisprudence. If the precedents following TinkerBethel v. Fraser, Hazelwood, and Morse v. Frederick—are interpreted as merely limited departures from Tinker’s broad protections for student speech, walkouts are unlikely to fall under the purview of post-Tinker case law.[83] Professor Laura McNeal recognizes this, arguing that “[i]n all three cases, the Supreme Court carved out narrow exceptions that permit school authorities to censor student speech, none of which are applicable to the type of speech at issue in . . . school walkouts.”[84] Likewise, Professor Mark Cordes has concluded that the majority and concurring opinions in Morse, “[t]aken together . . . reflect a strong sentiment to protect student speech perceived to be at the heart of the First Amendment.”[85] In short, room exists between the joints of Tinker and its progeny for school walkouts to fall solely under the former’s broad protections.

Briefly stated, Hazelwood’s application to school walkouts creates a multitude of problems. The precedent’s murky analysis is practically inappropriate in the context of student-initiated, and school-permitted, demonstrations. By a similar token, the deference given to administrators to restrict the content, and even the viewpoint, of student walkout speech is constitutionally dubious because political speech is the very speech the First Amendment was intended to protect. The host of issues inherent to Hazelwood’s application to school walkouts calls for a judicial solution: when a school permits a walkout, it should fall exclusively under the purview of Tinker.

V. Concluding Remarks

School administrators are tasked with the difficult job of striking the right balance between respecting students’ First Amendment rights and preserving discipline in the school setting. In the context of a school walkout, the difficulties inherent to this job are exacerbated by the current student free speech rights framework. For unpermitted walkouts, the law under Tinker is clear—student conduct and speech will not receive the protection of the First Amendment. But for permitted walkouts, the scope of permissible student political speech and school regulation of that speech is hazy—it depends on whether a fact-specific imprimatur inquiry and inconsistent forum analysis places the walkout under Tinker, as opposed to Hazelwood. Hazelwood’s application to school walkouts grants student political speech uncertain protection and administrators inadequate guidance on what speech can or cannot be restricted. Going forward, student commitment to civic activism at both the local and national level means that school walkouts will continue to set the pace as the chosen means of student political expression. This reality calls for a clearer standard that both offers greater protection to student political speech and proves more administrable for school educators. As this Essay argues, one solution is the exclusive application of Tinker to both permitted and unpermitted walkouts. Although decided fifty years ago, Tinker still provides the most sensible solution, because its application to walkouts in the present day would: one, make clear that student political speech is protected; two, facilitate cooperation between students and teachers; and three, ensure that schools continue to strike the right balance marching forward into the twenty-first century.


[1] Meg Wagner & Brian Reis, Student Walkouts Sweep the US, CNN (Apr. 20, 2018), [­DX5-E7M8]; Vivian Yee & Alan Blinder, National School Walkout: Thousands Protest Against Gun Violence Across the U.S., N.Y. Times (Mar. 14, 2018), https://www.ny­ [].

[2] Id.

[3] See Yee & Blinder, supra note 1.

[4] Sarah Gray, Everything You Need to Know About the April 20 National School Walkout, Time (Apr. 20, 2018), [https://­]. It is also important to note that not all of the school walkouts in response to the Parkland shooting advocated for gun control. For example, a walkout called “Stand for the Second” supported gun rights and the Second Amendment. “Stand for the Second” took place on May 2, 2018 and involved schools in forty states. Christal Hayes, ‘We Are for Your Rights’: Students Stage Walkouts Across U.S. to Back Second Amendment, USA Today (May 2, 2018), []; Eric Levenson & David Williams, Pro-gun Students Walk Out of School to ‘Stand for the Second,’ CNN (May 2, 2018),­dment/index.html [].

[5] Lane Murdock, Paul Kim, & Grant Yaun, Walkout Planning Guide, #Nat’l Sch. Walkout [­L2AM-QPMK]. Additionally, the ACLU published a similar guide that sought to educate students on their free speech rights during a walkout or protest. Student’s Rights: Speech, Walkouts, and Other Protests, ACLU,­ech-and-privacy/stu­dents-rights-speech-walkouts-and-other-protests [­5M-YZDF] (last visited Nov. 6, 2019).

[6] Murdock et al., supra note 4.

[7] Talia Richman & Erika Butler, Schools in the Baltimore Region Prepare for National Student Walkout; Harford County Opts Out, Balt. Sun (Mar. 8, 2018) https://www.bal­ [https://perma.­cc/FY9P-BGH5].

[8] Id.

[9] Tom Steele, Texas School’s Facebook Page Down After Superintendent Threatens to Suspend Students Who Walk Out, Dall. Morning News (Feb. 22, 2018), https://www.dallas­­hool-protest [].

[10] Josh Hafner, Students Paddled by Public School Staff After Participating in Walkout in Arkansas, USA Today (Mar. 19, 2018),­439141002/ [].

[11] M.C. ex rel. Chudley v. Shawnee Mission Unified Sch. Dist. No. 512, 363 F. Supp. 3d 1182, 1191 (D. Kan. 2019).

[12] See id. at 1192. 

[13] On May 2, 1963, approximately 800 school children in Birmingham, Alabama, walked out of their classrooms to take part in the “Children’s Crusade,” a multi-day, civil rights protest against segregation. Steven Levingston, Children Have Changed America Before, Braving Fire Hoses and Police Dogs for Civil Rights, Wash. Post (Mar. 23, 2018),­merica-before-braving-fire-hoses-and-police-dogs-for-civil-rights/?utm_term=.a764ef759e­35 []. More recently, students walked out to protest the end of the Deferred Action for Childhood Arrivals (“DACA”) program. See Anna M. Phillips, Hundreds of Denver Students Walk Out in Protest of DACA’s End, L.A. Times (Sep. 5, 2017),­education/la-essential-education-updates-southern-hundreds-of-denver-students-walk-out-in-1504636607-htmlstory.html [].

[14] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 504 (1969).

[15] Id.

[16] Id. at 506.

[17] Id. at 509.

[18] Id. at 513.

[19] Id. at 513–14.

[20] See, e.g., Texas v. Johnson, 491 U.S. 397, 404 (1989) (noting that conduct receives the protection of the First Amendment only when “[a]n intent to convey a particularized message was present, and [in the surrounding circumstances] the likelihood was great that the message would be understood by those who viewed it” (quoting Spence v. Washington, 418 U.S. 405, 410–11 (1974))).

[21] See, e.g., Corales v. Bennett, 567 F.3d 554, 563 (9th Cir. 2009) (finding that a reasonable jury could conclude that students leaving school to participate in a walkout were engaged in expressive conduct); Karp v. Becken, 477 F.2d 171, 176 (9th. Cir. 1973) (concluding that protest signs associated with a planned walkout “constituted the exercise of pure speech rather than conduct”); Tate v. Bd. of Educ., 453 F.2d 975, 978 (8th Cir. 1972) (accepting the argument that a student walkout from a pep rally was a “symbolic action” constituting speech under the First Amendment); Dodd v. Rambis, 535 F. Supp. 23, 28–29 (S.D. Ind. 1981) (reasoning that student distribution of pamphlets protesting school disciplinary policy and advertising a walkout was action falling under “the protective umbrella of the First Amendment”).

[22] See Karp, 477 F.2d at 176.

[23] Id.

[24] Johnson, 491 U.S. at 406.

[25] Burnside v. Byars, 363 F.2d 744, 748 (5th Cir. 1966). 

[26] Karp, 477 F.2d at 174. 

[27] 535 F. Supp. 23, 29–30 (S.D. Ind. 1981).

[28] Karp, 477 F.2d at 176.

[29] Id.

[30] Id. The court noted that the student, in securing the signs, violated a school regulation that prohibited students from going in the parking lot during school hours. If the school had punished the student for violating this regulation, instead of simply punishing him for possession of the signs, the suspension would have been upheld. Id. at 177.

[31] Id. at 176. 

[32] Id.; see also Morse v. Frederick, 551 U.S. 393, 396–97 (2007) (upholding the suspension of a student who, by unfurling a banner reading “BONG HiTS 4 JESUS,” violated a school policy prohibiting messages promoting illegal drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 686 (1986) (finding that a school disciplinary rule proscribing “obscene” speech gave a student adequate warning that his lewd speech could subject him to school sanctions); Dodd v. Rambis, 535 F. Supp. 23, 30 (S.D. Ind. 1981) (finding that the school’s punishment for the pure speech of the leaflets was justified because of the presence of a school regulation).

[33] 477 F.2d at 177.

[34] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506–09 (1969).

[35] M.C. ex rel. Chudley v. Shawnee Mission Unified Sch. Dist. No. 512, 363 F. Supp. 3d 1182, 1201–02 (D. Kan. 2019).

[36] Id. at 1191.

[37] Id. at 1191–92. District spokesperson Shawna Samuel stated that the district “encouraged the students to keep the topic to school safety,” and adopted the prohibitory guidelines because “[a]s a public institution, [the district] cannot take a stand one way or the other on Second Amendment rights.” Id.

[38] Id. at 1192.

[39] Id. at 1191–92.

[40] Id. at 1201.

[41] Id. at 1201–02.

[42] Id.

[43] Id. at 1201.

[44] 484 U.S. 260, 273 (1988).

[45] Id. at 263.

[46] Id. at 271.

[47] Id. at 273.

[48] See id. (stating that “[i]t is only when the decision to censor a school-sponsored publication, theatrical production, or other vehicle of student expression has no valid educational purpose that the First Amendment is so ‘directly and sharply implicate[d],’ as to require judicial intervention to protect students’ constitutional rights” (citation omitted)).

[49] Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 925–26 (10th Cir. 2002) (noting that “[m]any cases have applied a Hazelwood analysis to activities outside the traditional classroom where, so long as the imprimatur test is satisfied, the pedagogical test is satisfied simply by the school district’s desire to avoid controversy”). 

[50] Meagan Fitzgerald et al., DC-Area Schools Brace for Student Walkouts over Gun Violence, NBC Wash. (Mar. 13, 2018), [] (describing the approaches of different schools in the Washington, D.C., Virginia, and Maryland area to the #NSW walkouts).

[51] See Fleming, 298 F.3d at 926–27. 

[52] See Hazelwood, 484 U.S at 267, 270–73.

[53] Fleming, 298 F.3d at 925.

[54] M.C. ex rel. Chudley v. Shawnee Mission Unified Sch. Dist. No. 512, 363 F. Supp. 3d 1182, 1200 (D. Kan. 2019).

[55] 298 F.3d at 929–32 (holding that a tile memorial project established by a school district as part of its reconstruction after multiple fatal shootings was school-sponsored speech under Hazelwood and that the school could therefore exercise editorial control over the project).

[56] 566 F.3d 1219, 1229–30 (10th Cir. 2009) (concluding that speeches at a high school graduation ceremony were school-sponsored under Hazelwood and that the school district did not violate a student’s First Amendment free speech rights by exercising editorial control over her speech at that ceremony).

[57] M.C. ex rel. Chudley, 363 F. Supp. 3d at 1200.

[58] Hague v. C.I.O., 307 U.S. 496, 515 (1939).

[59] See Perry Edu. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983).

[60] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 267 (1988).

[61] Id. (citing Perry, 460 U.S. at 47). In the public-school context, “general public” is interpreted as the student body or a segment of the student body, like a school organization. Id.

[62] See Perry, 460 U.S. at 46.

[63] See Hazelwood, 484 U.S. at 267–68 (holding that the school newspaper was a nonpublic forum because the school reserved the paper as a supervised learning experience for school journalism students and did not deviate from the policy that the newspaper was part of the educational curriculum); see also Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 929–30 (10th Cir. 2002) (deciding that a school’s affirmative intent to retain editorial control and responsibility over a project did not create a limited public forum); O.T. ex rel. Turton v. Frenchtown Elem. Sch. Dist. Bd. of Educ., 465 F. Supp. 2d 369, 375–78 (D.N.J. 2006) (determining that an afterschool talent show constituted a limited public forum because it was open to the whole community, was not part of the school curriculum, and required participants to rehearse their pieces at home). 

[64] Alan Brownstein, The Nonforum as a First Amendment Category: Bringing Order Out of the Chaos of Free Speech Cases Involving School-Sponsored Activities, 42 U.C. Davis L. Rev. 717, 770 (2009).

[65] Id. 

[66] Id. at 774.

[67] See generally id. at 772 (stating that “[v]irtually all cases involving school-sponsored activities discuss whether a public forum has been created. . . . [I]n the great majority of cases the court ultimately answers this question in the negative”).

[68] Fitzgerald, supra note 49.

[69] The most recent national student walkout took place on September 20, 2019. Tens of thousands of students in the United States took to the streets to attend the Global Climate Strike and advocate for government action in the face of the growing climate crisis. See Sarah Kaplan, Lauren Lumpkin & Brady Dennis, ‘We Will Make Them Hear Us’: Millions of Youths Around the World Strike for Action, Wash. Post (Sept. 20, 2019), https://www.wash­ [].

[70] See supra Part II; see also Morse v. Frederick, 551 U.S. 393, 397 (2007) (allowing schools to restrict speech advocating illegal drug use); Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986) (permitting schools to regulate speech that is vulgar, lewd, or obscene).

[71] See supra notes 48–49 and accompanying text.

[72] Circuits are split over whether Hazelwood requires school restrictions of student, school-sponsored speech to be viewpoint neutral. Compare Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 926 (10th Cir. 2002) (concluding that “Hazelwood allows educators to make viewpoint-based decisions about school-sponsored speech”), and C.H. ex rel. Z.H. v. Oliva, 195 F.3d 167, 172–73 (3d Cir. 1999) (deciding that Hazelwood permits educators to impose non-viewpoint neutral restrictions on the content of student speech in school-sponsored activities), with Planned Parenthood of S. Nevada, Inc., v. Clark Cty. Sch. Dist., 941 F.2d 817, 829 (9th Cir. 1991) (incorporating viewpoint neutrality into its analysis of school-sponsored speech), and Searcey v. Harris, 888 F.2d 1314, 1319 n.7 (11th Cir. 1989) (stating that under Hazelwood, school officials may constrain student speech based on the speech’s content but not its viewpoint).

[73] Fitzgerald, supra note 49.

[74] Id.

[75] See Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 511–13 (1969).

[76] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures—Boards of Education not excepted. . . . That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.”). 

[77] See id. 

[78] See supra Part I.

[79] Id.

[80] Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 685 (1986).

[81] Morse v. Frederick, 551 U.S. 393, 397 (2007).

[82] See Hardwick ex rel. Hardwick v. Heyward, 711 F.3d 426, 440 (4th Cir. 2013) (“[M]ultiple incidents of racial tension in Latta schools and the potential for such vastly different views among students about the meaning of the Confederate flag provide a sufficient basis to justify the school officials’ conclusion that the Confederate flag shirts would cause a substantial disruption.”); Scott v. Sch. Bd. of Alachua Cty., 324 F.3d 1246, 1249 (11th Cir. 2003) (finding a school ban on the display of Confederate symbols was not unconstitutional); see also Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. # 204, 523 F.3d 668, 670, 674 (7th Cir. 2008) (deciding that a school rule forbidding derogatory comments, oral or written, that referred to race, ethnicity, religion, gender, sexual orientation, or disability satisfied Tinker’s substantial disruption standard).

[83] See supra note 69.   

[84] See Laura Rene McNeal, Hush Don’t Say a Word: Safeguarding Students’ Freedom of Expression in the Trump Era, 35 Ga. St. U. L. Rev. 251, 290 (2019). In her article, Professor McNeal argues that the current ambiguous state of student political speech rights should be addressed through a legislative, rather than judicial, solution. To this end, she asserts that state legislatures should amend “existing anti-Hazelwood statues to explicitly include protections for student social protests.” Id. at 252.

[85] Mark W. Cordes, Making Sense of High School Speech After Morse v. Frederick, 17 Wm. & Mary Bill Rts. J. 657, 713 (2009).

Fill in the Blank: Compelling Student Speech on Religion


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.


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.


[1] Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019), cert. denied, 2019 WL 5150487 (U.S. Oct. 15, 2019) (No. 18-1438). In a five-day unit called “The Muslim World,” Wood’s class explored the Middle Eastern empires, including the basic tenets of Islam that “contributed to the development of those empires.” Id. Wood took issue with the fill-in-the-blank assignment as well as a comparative faith statement her teacher presented in a PowerPoint, which said, “Most Muslim’s [sic] faith is stronger than the average Christian.” Id. (underlining in original). Although Wood raised an Establishment Clause claim on the basis of the comparative faith statement, this Essay will not discuss that claim. Id. at 313.

[2] Id. at 312.

[3] Id. at 312–13. Only by reciting the shahada with purpose, full comprehension, and firm conviction in Islam, may one convert to Islam. Shahadah: The Statement of Faith, BBC (Aug. 23, 2009),­Text=%22There%20is%20no%20God%20but,that%20Muhammad%20is%20his%20prophet []. There is no condition for having witnesses present when reciting the shahada to convert to Islam. However, it is always preferred for more than one witness to be present and more preferable if there is a larger gathering. If there are witnesses, one is usually an imam. To convert, or take the shahada, it is necessary to recite the shahada only once, but some assert that the individual should recite it two or three times. Compare Attiya Ahmad, Explanation is Not the Point: Domestic Work, Islamic Dawa and Becoming Muslim in Kuwait, 11 Asia Pac. J. Anthropology 293, 295 (2010) (suggesting two witnesses are required), and Conversion to Islam, Gov’t. of Dubai,­licServices/ERequestDe­tails.aspx?lang=en&ServiceCode=6 [] (last visited Oct. 16, 2019) (requiring two witnesses), with Sheikh Ahmad Kutty, New Muslims: Does Making Shahadah Need Witnesses?, AboutIslam (Sept. 27, 2018),­adah-need-witnesses/ [] (emphasizing the person’s conviction and noting that witnesses are not considered essential), and with Shahadah: The Statement of Faith, supra note 3 (declaring that individual must recite the shahada three times in front of witnesses to convert), and Shahada, Berkley Ctr. for Religion, Peace, & World Affairs, [] (last visited Oct. 16, 2019) (declaring that “[a] single earnest public recitation of the Shahada in its original Arabic is all that is required to convert to Islam”).

[4] Wood, 915 F.3d at 312–13 (underlining in original). The underlined text reflects the blanks Wood was required to fill. Id. at 313 n.1.

[5] Id. at 313 (alteration in original) (quoting Wood and her father). Wood’s parents brought the suit on her behalf because Wood was a minor at the start of the lawsuit. When Wood turned eighteen, the complaint was amended to name her as a plaintiff. Id. at 313 n.2.

[6] Id. at 313 (alteration in original) (quoting Wood).

[7] Id. (alteration in original) (quoting Wood).

[8] Id. at 312. For the District Court’s ruling, see Wood v. Arnold, 321 F. Supp. 3d 565, 579 (D. Md. 2018).

[9] Wood, 915 F.3d at 319.

[10] Id.

[11] Id. at 318–19 (quoting Wood).

[12] Id. at 319 (quoting Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969)).

[13] Id. (quoting Tinker, 393 U.S. at 506).

[14] C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 187–90 (3d Cir. 2005) (holding that an anonymous survey administered to public school students and their parents did not violate their First Amendment rights).

[15] Id. at 187 (citing Brown v. Li, 308 F.3d 939, 953 (9th Cir. 2002) (explaining how, for example, a college history professor could assign students to write papers defending Prohibition)); see also id. (citing Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988) (holding that a school may “exercise[e] editorial control over the style and content of student speech in school-sponsored expressive activities” but in doing so it is restricted to legitimate pedagogical purposes)).

[16] W. Va. St. Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943) (holding that compelling public school students to salute the American flag violates the First Amendment).

[17] Wood, 915 F.3d at 319. The Ridgewood court asserted that the law “subjects compelled speech to different levels of scrutiny depending on whether the government is also compelling a certain viewpoint as part of the compelled speech.” 430 F.3d at 188. However, Ridgewood is distinguishable from Wood, as the students in Ridgewood did not face punishment for “fail[ing] to complete the survey or to select particular answers.” Id. at 189.

[18] Ridgewood, 430 F.3d at 178 (citing Hazelwood, 484 U.S. at 273, 276 (upholding the school’s decision not to print two pages of a student newspaper)).

[19] Hazelwood, 484 U.S. at 273.

[20] C.N. ex rel. J.N. v. Ridgewood Bd. of Educ., 319 F. Supp. 2d 483, 493 (D.N.J. 2004).

[21] Ridgewood, 430 F.3d at 178. The Ridgewood court did not conduct a Hazelwood analysis “because the survey administered at Ridgewood was not chosen by New Jersey as a means of advancing education, but by a group of local organizations and district officials who deemed it convenient to use the local school district as the venue for administration.” Id.

[22] See Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1222–23 (10th Cir. 2009), cert. denied, 558 U.S. 1048 (2009) (whether compelling a student to apologize for referring to Jesus in a school-sponsored speech violated the First Amendment); Eklund v. Byron Union Sch. Dist., No. C 02-3004 PJH, 2003 U.S. Dist. LEXIS 27152, at *2-13 (N.D. Cal. Dec. 5, 2003), aff’d, 154 F. App’x 648 (9th Cir. 2005), cert. denied, 549 U.S. 942 (2006) (whether a teacher reading aloud the Qu’ran and requiring students to recite from the text violated the First Amendment).

[23] Wood v. Arnold, 915 F.3d 308 (4th Cir. 2019), cert. denied, 2019 WL 5150487 (U.S. Oct. 15, 2019) (No. 18-1438).

[24] See Steven G. Gey, When Is Religious Speech Not “Free Speech”?, 2000 U. Ill. L. Rev. 379, 380–81 (arguing that litigants strategically make free speech claims to protect or challenge religious speech); Leslie Kendrick & Micah Schwartzman, Comment, The Etiquette of Animus, 132 Harv. L. Rev. 133, 136 (2018) (noting that litigants in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, 138 S. Ct. 1719 (2018), relied on free speech doctrine given the success of compelled speech claims compared to claims based in the Free Exercise Clause).

[25] See, e.g., Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 348, 350 (5th Cir. 2017) (calling Barnette “most factually analogous” but distinguishing it from the present case and noting uncertainty as to the “proper analysis of compelled recitation” cases); Axson-Flynn v. Johnson, 356 F.3d 1277 (10th Cir. 2004); Brown v. Li, 308 F.3d 939 (9th Cir. 2002); Settle v. Dickson Cty. Sch. Bd., 53 F.3d 152 (6th Cir. 1995).

[26] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506 (1969) (discussing the applicability of the First Amendment within “the schoolhouse gate”).

[27] Id. at 508–09.

[28] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

[29] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

[30] See Mozert v. Hawkins Cty. Pub. Schs., 765 F.2d 75, 76–77 (6th Cir. 1985) (whether having students read a book that was against their fundamentalist Christian beliefs constituted compulsion); Brinsdon, 863 F.3d at 348–51 (whether students were compelled to recite the Mexican Pledge of Allegiance).

[31] See Axson-Flynn, 356 F.3d at 1285–86. The court “conclude[d] that Axson-Flynn’s speech . . . constitutes ‘school-sponsored speech’ and is thus governed by Hazelwood.” Id. at 1285; see also id. at 1286–90 (describing the Sixth, Ninth, and Eleventh Circuits’ reliance on Hazelwood); Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1233 (10th Cir. 2009) (holding that the school did not violate the First Amendment when it made a student apologize for speaking about her faith during her graduation address).

[32] Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503 (1969).

[33] Hazelwood, 484 U.S. at 267–70.

[34] Tinker, 393 U.S. at 509.

[35] Id. at 513.

[36] Hazelwood, 484 U.S. at 270–71.

[37] Id. at 263–64.

[38] Id. at 271–74.

[39] Id. at 271.

[40] Id.

[41] Id. at 262, 267–270.

[42] Id. at 272–73.

[43] Id. at 273.

[44] Id. at 270–73. To be precise, the Court noted that “[t]he question whether the First Amendment requires a school to tolerate particular student speech—the question that we addressed in Tinker—is different from the question whether the First Amendment requires a school affirmatively to promote particular student speech.” Id. at 270–71.

[45] Samuel P. Jordan, Comment, Viewpoint Restrictions and School-Sponsored Student Speech: Avenues for Heightened Protection, 70 U. Chi. L. Rev. 1555, 1555 (2003).

[46] Alexis Zouhary, Note, The Elephant in the Classroom: A Proposed Framework for Applying Viewpoint Neutrality to Student Speech in the Secondary School Setting, 83 Notre Dame L. Rev. 2227, 2258 (2008); see also R. George Wright, School-Sponsored Speech and the Surprising Case for Viewpoint-Based Regulations, 31 S. Ill. U. L.J. 175, 212 (2007) (foreseeing “increased risks of litigation” with applying strict scrutiny to reasonably regulated school-sponsored speech).

[47] See Hazelwood, 484 U.S. at 271 (noting that, among other rights and responsibilities, “[e]ducators are entitled to exercise greater control over this second form of student expression to assure that participants learn whatever lessons the activity is designed to teach”).

[48] Axson-Flynn v. Johnson, 356 F.3d 1277, 1284 (10th Cir. 2004).

[49] Settle v. Dickson Cty. Sch. Bd., 53 F.3d 152, 155 (6th Cir. 1995).

[50] Id.

[51] Brown v. Li, 308 F.3d 939, 949 (9th Cir. 2002). The plaintiff claimed his university violated the First Amendment when it denied approval of a portion of his graduate thesis. Id. at 947. The Ninth Circuit applied Hazelwood and upheld the thesis committee’s decision as it “was reasonably related to a legitimate pedagogical objective: teaching Plaintiff the proper format for a scientific paper.” Id. at 952.

[52] Id. at 949.

[53] See infra Part II (discussing the two prongs of Hazelwood).

[54] See Brandon C. Pond, Note, To Speak or Not to Speak: Theoretical Difficulties of Analyzing Compelled Speech Claims Under a Restricted Speech Standard, 2010 BYU Educ. & L.J. 149, 159.

[55] James C. Farrell, Note, Johnny Can’t Read or Write, but Just Watch Him Work: Assessing the Constitutionality of Mandatory High School Community Service Programs, 71 St. John’s L. Rev. 795, 831 (1997).

[56] Joseph J. Martins, The One Fixed Star in Higher Education: What Standard of Judicial Scrutiny Should Courts Apply to Compelled Curricular Speech in the Public University Classroom?, 20 U. Pa. J. Const. L. 85, 103 (2017).

[57] W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 629 (1943).

[58] Id.

[59] Id. at 641 (declaring that “[c]ompulsory unification of opinion achieves only the unani­mity of the graveyard”).

[60] Id. at 631.

[61] Id. at 634; see also Sheldon v. Fannin, 221 F. Supp. 766, 775 (D. Ariz. 1963) (issuing an injunction restraining an elementary school’s board of trustees from expelling Jehovah’s Witnesses who silently refused to stand for the National Anthem).

[62] Barnette, 319 U.S. at 631 n.12.

[63] Id. at 637 (“That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source . . . .”).

[64] Id.

[65] Martins, supra note 56, at 105.

[66] Id. at 107.

[67] Nora Sullivan, Note, Insincere Apologies: The Tenth Circuit’s Treatment of Compelled Speech in Public High Schools, 8 First Amend. L. Rev. 533, 548 (2010).

[68] Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 349–50 (5th Cir. 2017).

[69] Id. at 350.

[70] Id.

[71] Id. at 349.

[72] Hedges v. Wauconda Cmty. Unit Sch. Dist. No. 118, 9 F.3d 1295, 1302 (7th Cir. 1993) (holding it proper to “deny students the ability to express themselves by adopting the words of others”).

[73] Brown v. Li, 308 F.3d 939, 953 (9th Cir. 2002) (discussing that a teacher can permissibly assign students to write opinions in the viewpoints of Justices Ginsburg and Scalia).

[74] Axson-Flynn v. Johnson, 356 F.3d 1277, 1291–93 (10th Cir. 2004) (allowing a teacher to require a student to recite lines from a play that are contrary to her religious beliefs).

[75] Brinsdon, 863 F.3d at 350.

[76] Id. at 349.

[77] Id. at 350 (citing Axson-Flynn, 356 F.3d at 1291–92).

[78] Id. (citing Axson-Flynn, 356 F.3d at 1291–92).

[79] Pond, supra note 54, at 155.

[80] Brinsdon, 863 F.3d at 350.

[81] Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1229 (10th Cir. 2009); Axson-Flynn v. Johnson, 356 F.3d 1277, 1285–86 (10th Cir. 2004).

[82] Axson-Flynn, 356 F.3d at 1285–86.

[83] Id. at 1290.

[84] Id. at 1280.

[85] Id. at 1292–93.

[86] Id. at 1290.

[87] Id. (quoting Fleming v. Jefferson Cty. Sch. Dist. R-1, 298 F.3d 918, 925 (10th Cir. 2002)).

[88] Id. at 1293. The issue was not further litigated because the parties settled. Id.

[89] Corder v. Lewis Palmer Sch. Dist. No. 38, 566 F.3d 1219, 1230–32 (10th Cir. 2009).

[90] Id. at 1222–23, 1230.

[91] Id. at 1222.

[92] Id. at 1223. To receive her diploma, the principal required the student to include in her apology a sentence clarifying that she understood she would not have been allowed to discuss her religious views, “had [she] asked ahead of time.” Id.

[93] Id. at 1229.

[94] Id.

[95] Id. at 1231 (citing C.N. v. Ridgewood Bd. of Educ., 430 F.3d 159, 178 (3d Cir. 2005)).

[96] Id.

[97] Id.

[98] Id. at 1232.

[99] Id. at 1231–32.

[100] Martin H. Redish & Kevin Finnerty, What Did You Learn in School Today? Free Speech, Values Inculcation, and the Democratic-Educational Paradox, 88 Cornell L. Rev. 62, 81 n.77 (2002).

[101] Busch v. Marple Newtown Sch. Dist., 567 F.3d 89, 96 (3d Cir. 2009); see also Walz ex rel. Walz v. Egg Harbor Twp. Bd. of Educ., 342 F.3d 271, 280 (3d Cir. 2003) (noting that a school’s restriction of religious expression during a classroom holiday party is “designed to prevent proselytizing speech that, if permitted, would be at cross-purposes with its educational goal”).

[102] Busch, 567 F.3d at 98.

[103] This is putting aside the argument that compelling speech is similar to restricting students from speaking on any other topic than what the teacher permits.

[104] Pond, supra note 54, at 150. 

[105] Id. at 157 (quoting Axson-Flynn v. Johnson, 356 F.3d 1277, 1290 (10th Cir. 2004)).

[106] Id.; see Axson-Flynn v. Johnson, 356 F.3d 1277, 1292–93 (10th Cir. 2004).

[107] See Pond, supra note 54, at 159 (suggesting that “school-mandated speech” should be evaluated under Barnette and not Hazelwood).

[108] Id. (quoting W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943)).

[109] Id. at 159–60.

[110] Id. at 160.

[111] Redish & Finnerty, supra note 100, at 81.

[112] James E. Ryan, The Supreme Court and Public Schools, 86 Va. L. Rev. 1335, 1383–84 (2000); see Epperson v. Arkansas, 393 U.S. 97, 106 (1968) (permitting religious education “from a literary and historic viewpoint, presented objectively as part of a secular program”); Abington Sch. Dist. v. Schempp, 374 U.S. 203, 225 (1963) (permitting the study of religion within a secular program).

[113] Ryan, supra note 112, at 1411.

[114] Id. at 1408.

[115] Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 273 (1988).

[116] Seana Valentine Shiffrin, Essay, What is Really Wrong with Compelled Association?, 99 Nw. U. L. Rev. 839, 883–84 (2005).

[117] Id.

[118] Id. at 884.

[119] Id.

[120] Sullivan, supra note 67, at 559; see also Axson-Flynn v. Johnson, 356 F.3d 1277, 1290–91 (10th Cir. 2004) (“[S]chools also routinely require students to express a viewpoint that is not their own in order to teach the students to think critically . . . .”).

[121] Sullivan, supra note 67, at 569.

[122] Id.

[123] Axson-Flynn, 356 F.3d at 1292 (emphasis omitted).

[124] Id.; see also Regents of the Univ. of Mich. v. Ewing, 474 U.S. 214, 225 (1985) (“[A court] may not override [a teacher’s professional judgment] unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.”); Settle v. Dickson Cty. Sch. Bd., 53 F.3d 152, 155 (6th Cir. 1995) (“So long as the teacher limits speech or grades speech in the classroom in the name of learning and not as a pretext for punishing the student for her race, gender, economic class, religion or political persuasion, the federal courts should not interfere.”).

[125] Ryan, supra note 112, at 1351–52.

[126] See, e.g., Susan H. Bitensky, A Contemporary Proposal for Reconciling the Free Speech Clause with Curricular Values Inculcation in the Public Schools, 70 Notre Dame L. Rev. 769, 770–71 (1995) (noting that “teaching processes of reasoning about values while avoiding the transmission of any definite moral content . . . has generally been spared accusations of constitutional infirmity,” unlike the choice to “inculcat[e] selected values”).

[127] Ryan, supra note 112, at 1419–20; see Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988); W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 645–46 (1943) (Murphy, J., concurring); id. at 631 n.12.

[128] Poling v. Murphy, 872 F.2d 757, 762 (6th Cir. 1989). The Sixth Circuit held that the school did not violate the First Amendment by disqualifying a student for the student council presidency for “discourteous and rude remarks about” school officials “in the course of a speech delivered at a school-sponsored assembly.” Id. at 758 (internal quotation marks omitted). It found that “[c]ivility is a legitimate pedological concern,” as the concern need not be academic. Id. at 758, 762. However, the court did place importance on the fact that “the school officials made no attempt to compel [the student] to say anything he did not want to say.” Id. at 763.

[129] Jordan, supra note 45, at 1570.

[130] 478 U.S. 675, 681 (1986).

[131] 827 F.2d 1058, 1068–69 (6th Cir. 1987).

[132] Ryan, supra note 112, at 1419.

[133] Id. at 1338.

[134] Id. at 1423.

[135] Id. at 1339 n.14.

[136] Professor Ryan clarifies that Barnette and Tinker demonstrate that “schools can try to socialize students outside of the context of academic exercises, via mandatory flag salutes”; however, “efforts at socialization must be justified as linked to the academic process itself; where that link does not exist (or is not seen by the Court), socialization is not privileged in the same way that academic activities are.” Id. at 1354 n.78. 

[137] Brinsdon v. McAllen Indep. Sch. Dist., 863 F.3d 338, 349 (5th Cir. 2017).

[138] See, e.g., Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 681 (1986); Mozert v. Hawkins Cty. Bd. of Educ., 827 F.2d 1058, 1068 (6th Cir. 1987).

[139] Brown v. Li, 308 F.3d 939, 952 (9th Cir. 2002) (Although not a K-12 school case, the court importantly upheld the thesis committee’s decision on an understanding it was pursuing an academic goal).

[140] Zykan v. Warsaw Cmty. Sch. Corp., 631 F.2d 1300, 1306 (7th Cir. 1980) (recognizing that a student may make a claim if it is shown that the school was substituting legitimate pedagogic choices with “rigid and exclusive indoctrination”).

[141] The Thomas More Law Center (“TMLC”), which filed the lawsuit on behalf of Ms. Wood, described its concerns in a press release. See Thomas More Law Center Asks Supreme Court to Decide How Far Schools Can Promote Islam and Disparage Christianity, Thomas More L. Ctr. (May 15, 2019),­ity/ []; see also Chris Woodward, Schools Pushing the Envelope on Islamic Proselytization, OneNewsNow (Oct. 16, 2019),­10/16/schools-pushing-the-envelope-on-islamic-proselytization [https://perma.­cc/PZM5-JN5W] (quoting Richard Thompson, president and chief counsel of TMLC, for the propositions that schools are becoming “hotbeds of Islamic propaganda” and the Fourth Circuit’s decision enforces a “double standard” regarding how Islam and Christianity are (or are not) taught in public schools).