Johnny can't read or write, but just watch him work: Assessing the constitutionality of mandatory high school community service programs

St. John's Law Review, Fall 1997 by Farrell, James C

INTRODUCTION

An essential component of our republican form of government is the freedom to hear, critically examine, and express one's viewpoints upon a wide range of positions held and advocated regarding issues dividing our society.1 The maintenance of a vigorous democracy necessitates the development of an effective system of public education.2 Our country's education system forms and maintains a political community by equipping students with the means of participating in the political process as well as continuing their intellectual growth throughout their lives.3 The right of the state to indoctrinate the young through education, however, must be carefully limited. Educators must allow students to develop their individual interests, projects, and personal convictions since thought control and indoctrination are anathema to a free and democratic society.4 Public school programs must educate the next generation for good citizenship by teaching students to think clearly, discriminately, and independently.5

Public school authorities, perceiving a current crisis in the educational process, have adopted curricular programs that deviate from the traditional classroom instruction in reading, writing, and arithmetic.6 A rapidly growing number of school districts have expanded their curriculum to include "service learning" initiatives.7 "Service learning" initiatives, better known as mandatory community service programs, require that students devote a specified number of hours over their high school careers to preparing for placement at a community service organization, performing the various types of labor required at such organizations, and discussing and reflecting upon their experiences. These programs allegedly develop teamwork, communication, and problem-solving skills by placing the student in a "real-world" setting.8 These initiatives also attempt to instill in each student a sense of civic obligation, to advance an understanding of the student's links to his or her community, and to generate lasting pro-social behavioral inclinations.9 Mandatory service programs are about "preparing all of our people for their lifework of being responsible citizens, economic players and lifelong learners."10

This Note posits that mandatory participation in community service programs as a prerequisite to receiving a public high school diploma, violates a student's First Amendment right to freedom of speech.11 Part II of this Note discusses the competing concerns which judges weigh in determining the extent of First Amendment protection afforded high school students. This Part analyzes several landmark Supreme Court decisions defining the state's ability to regulate the speech of high school students. Part III of this Note reviews the protection afforded to all citizens by the guarantee of free speech embodied within the First Amendment. This Part analyzes the Court's struggle to define the distinction between mere conduct and expressive activity entitled to First Amendment protection. In addition, this Part examines the right to be free from compelled expression, which was recently reinforced by the Supreme Court in Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston.12 Part IV of this Note discusses the constitutional protection afforded expressive conduct. This Part analyzes the Supreme Court's latest reformation of the test for determining whether given conduct is imbued with sufficiently expressive elements so as to be entitled to constitutional protection. In addition, this Part studies the government's ability to regulate expressive conduct. Part V analyzes mandatory community service programs under both traditional First Amendment principles and the more carefully circumscribed right of free expression possessed by high school students. This Note ultimately concludes that participation in mandatory community service programs as a prerequisite to receiving a public high school diploma constitutes expressive activity within the ambit of the First Amendment's protection. Such programs violate the rights of students to engage in protected expressive activity under both traditional First Amendment jurisprudence and the significantly restricted First Amendment rights of high school students defined by Tinker and its progeny.

II. THE FIRST AMENDMENT GOES TO SCHOOL

Public school students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."13 A student's right to free speech, however, is neither absolute nor co-extensive with the rights of non-students in similar situations.14 The dampening of a student's constitutionally protected right to free expression reflects the vital interests of the state in ensuring an atmosphere conducive to fulfilling the state's educational mandate.15 The countervailing obligation of the state to inculcate community values and morals in high school students conflicts with the rights of the students to be exposed to a gamut of information. In order to safeguard against excessive abridgment of students' First Amendment rights, the state is prohibited from prescribing orthodoxy and allegiance to a uniform set of beliefs under the guise of defining the academic process and/or teaching fundamental values.16