This is one fine book – intelligently organized and lucidly written, an essential text for any practitioner, legal scholar or lay reader who wants a broad yet scrupulously documented overview of constitutional precedents governing the First Amendment rights of public school students in America.
Lessons in Censorship totals 299 pages, not including copious footnotes and a detailed index. Its eight chapters are divided into three main sections.
In the first section, Ross examines a “legal quintet” of Supreme Court decisions that have set out - and have progressively blurred, she says – constitutional guidelines governing pre-college student speech. She begins with Justice Jackson’s seminal decision in West Virginia State Board of Education v. Barnette (1943), where the court held unconstitutional the school’s requirement that Jehovah’s Witness students recite the Pledge of Allegiance. Significantly, Ross notes, the court grounded its decision in the Speech Clause rather than Free Exercise Clause of the First Amendment.
The next milestone is Tinker v. Des Moines Public School District, handed down in 1969 at a time of growing student protest against the Vietnam War. Tinker built on Barnette’s free speech principles to expand dramatically the scope of constitutionally protected student speech in public schools. Writing for an 8-1 majority, Justice Fortas laid out what became known as the Tinker test for student speech: that is, expression must be permitted unless it (a) materially and substantially interferes with school discipline or the educational process, or (b) diminishes the rights of other students who simply want to be left alone.
Ross then demonstrates how three major cases from increasingly conservative Supreme Courts have dimmed the promise of Tinker. These decisions – Bethel School District vs. Fraser (1986), Hazelwood School District v. Kuhlmeier (1988) and Frederick v. Morse (2007) - also dissipated Tinker’s bright-line test for student speech. As a result, Ross says, Supreme Court jurisprudence governing student speech is muddled and offers little guidance to school principals who have to make snap decisions about protected speech.
Ross explains that Fraser, which concerned what the school viewed as “lewd speech,” left intact Tinker’s protection of speech content, but affirmed administrators’ authority to promote civility and respect by restricting the manner (e.g., sexually suggestive words) in which ideas were expressed. Hazelwood announced a new category of expression – “school-sponsored speech” – and gave authorities wide latitude to curb speech that could be perceived as having the school’s stamp of approval.
The first section ends with Ross’ analysis of Morse, popularly known as the “Bong Hits 4 Jesus” case. This moniker reflects the message on a banner held by high school senior Joseph Frederick at a quasi-school-sponsored event in Anchorage. It is in Morse that Ross’ analytical skills are most fully on display. With surgical precision she picks apart the opinion by Chief Justice Roberts, which, in further diminishing Tinker, essentially set up a new category of expression that administrators could censor and punish – speech that appears to promote illegal drug use. She examines in detail Justice Alito’s seemingly reluctant concurrence, where he points out that had Frederick’s banner contained “political” speech, the message most likely would have been protected speech under Tinker principles. In sum, Ross says that Morse’s “murky framing” further confused the law governing student speech, “leaving lower courts to fill in the blanks.”
Having laid out what she dubs “the taxonomy of school censorship” law, with all its legal nooks and crannies, Ross devotes her middle chapters to showing how school administrators, buoyed in particular by Fraser and Hazelwood, have applied (and misapplied) this taxonomy to actual student speech situations. Generally, she points out, administrators have viewed post-Tinker cases as license to curb student speech.
To her great credit, Ross does not take an extremist Tinker-or-nothing view of student speech, nor does she gloss over questions raised by the legitimately competing interests of students and school administrators. She squarely confronts the problems of bullying and offensive speech. She acknowledges – and proposes solutions for - the Gordian knot posed when administrators’ commendable desire to discourage speech harmful to others clashes with the equally commendable goal of encouraging students to exercise their First Amendment rights, even when their speech may cause offense.
In her closing chapters Ross returns to Tinker, which she calls “the lodestar for protecting young people’s rights to express both their most profound beliefs and their less exalted thoughts.” She makes the case that while post-Tinker decisions have “diminished its reach,” they have “never extinguished its spark.”
Lessons in Censorship is remarkable for the quality and clarify of its writing, and for its multi-dimensional approach to case analysis. Each case is reviewed in its historical context, with Ross demonstrating how presidential politics shaped judicial appointments, and how in turn newly appointed conservative justices shaped post-Tinker decisions that effectively transferred the balance of power from students back to administrators. She shows how in actual practice the blurring of Tinker’s simple two-part test has left the two major players here - students and administrators - unsure of the boundaries of constitutionally protected speech. An unfortunate by-product of the ensuing confusion, Ross notes, is that administrators have been emboldened to take the easy way out by imposing increasingly strict limits on student expression.
Ross’ book is animated by her strong belief that a pre-college environment of robust debate launches children on the road to full participation in a democracy (in Barnette, Justice Jackson called it “educating the young for citizenship”). But she is mindful that principals, however dedicated they may be as educators to encouraging a vigorous marketplace of ideas, are restrained by parens patriae obligations, and must answer to a constituency of parents and local school board policy makers. While clearly dismayed by the drift toward restricted speech in post-Tinker decisions, she encourages administrators to take the high road in fostering a culture of free-wheeling school-sponsored speech. If there is fallout in the community, she suggests, the ensuing debate can be used as a constructive exercise to educate students and parents alike in how “indispensable [speech is] to the union we continually strive to perfect.”
Lessons in Censorship is the absolute go-to text for practitioners in this area. But you don’t need a JD to enjoy and profit from this finely written book, as Ross has a gift for laying out complex ideas in an easily comprehensible fashion. It is laced with instructive legal anecdotes, and each chapter has a clear narrative arc that – at least for legal geeks - makes the book a real page-turner.
Every school district would be wise to buy this book and make it required reading for principals of elementary through high schools. Ditto for district legal counsel charged with defending administrators who fail to heed the message of Lessons in Censorship, and thus find their clients embroiled in costly First Amendment litigation.
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