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

2. Content-based Nature of Restriction

The government's interest in requiring a program of mandatory service in order to teach civic values cannot be deemed unrelated to the expressive conduct compelled by such a requirement. Unlike cases where the government's action has an incidental effect of regulating or suppressing the actor's free speech rights,115 the compelled expression itself is the content that the government seeks to regulate. Requiring students to profess an interest in pro-social activities constitutes a content-based regulation of speech.116

The desire to instill in students practical skills which may assist them in securing future employment is independent of the expressive nature of the conduct mandated. The presence of an important non-speech objective would allow these programs to survive the third prong of the O'Brien analysis.

3. Insufficiently Tailored

While the development of skills necessary to function effectively as an employee could constitute a substantial government interest unrelated to the exercise or restraint of free speech rights, the methods adopted by school boards to facilitate these programs constitute a greater restriction upon free speech rights than is essential for the furtherance of that interest. Mandatory community service programs, as the term implies, do not give students the opportunity to opt out of participation.117 While offering the students a wide range of service organizations to choose from, or even permitting the students to design their own program,118 the limited freedom to choose an organization whose beliefs do not conflict with the students' fails to satisfy constitutional scrutiny.

Mandatory participation in fundamental classroom instruction, such as requiring every student to complete a mathematics assignment, is necessary to maintain an environment conducive to learning and to avoid classroom disruption.119 Independent student participation in an activity outside of the classroom, however, is not likely to threaten to disrupt the academic setting. While students may be aware that some of their colleagues elected to "opt out" of the community service opportunities, the tenuous possibility that some threat of disruption may arise from this decision does not authorize the state to compel the student to become a hypocrite.120

C. Protection Afforded Symbolic Speech Where the Regulation Fails the O'Brien Test

Restrictions upon expressive conduct which fail to satisfy the O'Brien analysis may still be valid if they are consistent with traditional First Amendment jurisprudence. Symbolic speech can be constitutionally regulated if pure speech could also be regulated under the same circumstances.121 The expressive activity may be prohibited on the basis of its message only if that message falls within the categories of speech punishable consistent with First Amendment jurisprudence.122 In addition, the time, place, and manner of the symbolic speech may be regulated so long as the restriction is "content-neutral, narrowly tailored to serve a significant government interest, and leave[s] open ample alternative channels of communication."123