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

B. Summary of the Supreme Court's Decisions

Attempts by the Court to balance the school administrators' and students' competing concerns have not resulted in a concise analytical framework. A careful analysis and comparison of the Court's landmark decisions on students' First Amendment rights reveals three principles which assist in evaluating the constitutionality of mandatory public high school community service programs. First, public schools may regulate non-political student speech which constitutes a component of the school curriculum so long as the regulation assists the educational process.47 Second, if school officials reasonably believe that student speech will substantially disrupt school activities or interfere with the rights of other students, the school may restrict student speech which is not a part of the school curriculum.48 Finally, the state may not use the operation of public schools to inculcate certain beliefs through compelled expression of orthodox values.49 The third principle derived from the Court's decisions should operate to invalidate mandatory high school community service programs.

III. COMPELLED SPEECH

The First Amendment guarantees the right of every person to express his or her opinion.50 The Supreme Court has recognized that an individual's First Amendment right to speak necessarily encompasses the right to refrain from speaking when the government seeks to compel speech that advances its own message.51 The Court expanded this vital protection to encompass state action compelling one private party to carry or foster the speech of another private party.52 In Hurley v. IrishAmerican Gay, Lesbian and Bisexual Group of Boston, the Court reaffirmed the right of all private parties to be free from espousing a message or belief inconsistent with their own.53

In 1992, the Irish-American Gay, Lesbian, and Bisexual Group of Boston (GLIB)54 submitted an application to participate in the 1992 Boston St. Patrick's Day-Evacuation Day Parade (Parade).55 The South Boston Allied War Veterans Council (Council), the organizer of the Parade, denied this application citing safety reasons and a lack of sufficient information regarding GLIB.56 Pursuant to state court order, GLIB marched in the 1992 Parade.57 When GLIB applied to march in the 1993 Parade, however, the Council again denied permission, asserting that its decision to exclude groups with sexual themes formalized the Parade's traditional religious and family values.58

The Supreme Court held that the state-mandated inclusion of GLIB altered the expressive content of the Parade and violated the Council's First Amendment rights.59 The Court found the South Boston celebration to be a constitutionally protected expressive activity 60 Although the Council was lenient in admitting participants in the Parade, the Court reasoned that an organizer does not forfeit its autonomy to choose its own message merely by "combining multifarious voices, or by failing to edit their themes to isolate an exact message as the exclusive subject matter of the speech."61 Thus, the state's application of the public accommodations law violated the Council's autonomy by compelling the Council to propound a message with which it disagreed.62