I have a short opinion piece up at the SCOTUSblog site, about the Supreme Court's recent decision in Mahmoud. It has the (admittedly provocative) title, "Is Religious Freedom Possible in State Schools." (It's kind of a follow-up on a law-review essay I did, years ago, on the Morse v. Frederick case -- that is, the "Bong Hits for Jesus" case.) Here is the abstract from the essay:
The Supreme Court's decision in Morse v. Frederick leaves unresolved many interesting and difficult problems about the authority of public-school officials to regulate public-school students' speech. Perhaps the most intriguing question posed by the litigation, decision, and opinions in Morse is one that the various Justices who wrote in the case never squarely addressed: What is the basic educational mission of public schools, and what are the implications of this mission for officials' authority and students' free-speech rights? Given what we have come to think the Free Speech Clause means, and considering the values it is thought to enshrine and the dangers against which it is thought to protect, is it really possible for the freedom of speech to co-exist with the mission of the public schools? We all recall Justice Jackson's stirring rhetoric in the West Virginia flag-salute case: If there is any fixed star in our constitutional constellation, he proclaimed, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion[.] But, is this really true - could it be true? - in public schools?
From the Mahmoud piece, here's a bit:
. . . the “fit” between the nature and mission of state schooling, on the one hand, and our constitutional commitment to religious liberty, on the other, is an awkward one. Think about some of the pervasive and powerful themes in our law of religious liberty: The government is supposed to be “neutral” with respect to the content, and especially with respect to the viewpoint, of religious expression and creedal profession. It is supposed to manage “forums” in a (generally) “neutral” way. Until recently, there was an establishment clause rule that did not permit governments to “endorse” any religious teachings. As was noted earlier, it is supposed to be foundational for us that “no official, high or petty,” may prescribe what is “orthodox.” Courts regularly and closely police policies for “coercion” in religious matters. And, when it comes to the free exercise of religion, our law reflects a general openness to accommodations, exceptions, and special treatment (even when they are not required).
None of this translates very well into the context of state schooling. Public education exists precisely to be not-neutral, to promote “orthodoxy,” to shape belief, to form minds, to forge loyalties, and to mold commitments.