Going off-script: Can schools punish graduation speakers for voicing personal opinions?

A Texas graduation speaker goes off-script to complain about being forced to water down the religious message of his speech, and the school unplugs the microphone. A Florida commencement speaker pauses, and — fearing a deviation from the prepared text — his principal stops the speech and has him removed by security guards. An Oklahoma graduation speaker lets loose with an improvised wisecrack using the word “hell,” and the school withholds her diploma.

Each year around this time, some of America’s top high school graduates get an unwanted parting “lesson” from their schools about the limits of the First Amendment.

Although the Supreme Court famously told us in 1969 that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” the Court’s subsequent pronouncement in Hazelwood School District v. Kuhlmeier has given schools significantly greater censorship latitude when the student is using a “forum” subsidized by the school as part of the school’s educational programming.

It is this level of authority that emboldened Pasco County, Fla., school administrators to rewrite an 18-year-old Harvard-bound senior’s creative and witty graduation speech into a watered-down one calculated to offend no one.

It’s debatable whether the average attendee considers a graduation ceremony to be “educational,” or would have difficulty distinguishing between a speech that represent an individual student’s opinions versus an official school pronouncement. Nevertheless, that’s the accepted rationale for applying the greatly reduced Hazelwood level of First Amendment protection to valedictory addresses.

While the Supreme Court has never addressed the degree of control a school may exercise over student graduation speeches, lower courts have shown great deference to schools’ censorship authority. Two noteworthy court rulings exemplify this deference.

  • In 1999, a graduating senior in Pleasanton, Calif., challenged his school’s insistence on rewriting his valedictory speech to remove religious references that, in the school’s view, crossed the line into “proselytizing.” A panel of the Ninth Circuit U.S. Court of Appeals sided with the school and, in a 2003 ruling, dismissed the student’s First Amendment challenge. The judges held that the school was justified in toning down the speech so as to avoid liability under the First Amendment’s Establishment Clause for foisting religion on unwilling listeners: “Forcing a dissenter to make the choice between attending such an event and participating in a religious practice with which the dissenter does not agree is not constitutionally permissible.”
  • A high school valedictorian in Monument, Colo., deviated from her school-approved text during a 2006 commencement ceremony and inserted a passage encouraging listeners to learn about how Jesus Christ died for their sins. The school demanded a public apology before the student could receive her diploma. She challenged both the censorship and the apology demand under the First Amendment, but a panel of the Tenth Circuit U.S. Court of Appeals found no constitutional violation. Declaring that graduation ceremonies are “related to learning,” the court applied the highly deferential Hazelwood standard, concluding: “a School District is entitled to review the content of speeches in an effort to preserve neutrality on matters of controversy within a school environment.”

In the view of these courts, and of most others that have confronted graduation-speech claims since Hazelwood, the law has literally made censorship self-fulfilling. The greater the control the school asserts over the speech, the more likely it is to be treated as the speech of the school.

The U.S. Department of Education has issued guidance assuring schools that they will not be held responsible for Establishment Clause violations if they do not control what their students say. According to the Department:

Where student speakers are selected on the basis of genuinely neutral, evenhanded criteria and retain primary control over the content of their expression, that expression is not attributable to the school and therefore may not be restricted because of its religious (or anti-religious) content. By contrast, where school officials determine or substantially control the content of what is expressed, such speech is attributable to the school and may not include prayer or other specifically religious (or anti-religious) content.

Exemplifying that view, the Montana Supreme Court decided in 2010 that Butte High School violated the First Amendment rights of a graduating senior, Renee Griffith, who was barred from speaking because she refused to delete mentions of God and Christ from her prepared remarks.

Because the speech was an intensely personal recollection of what the student had learned — and because the school published a notice in the graduation program disclaiming endorsement of any student’s message — the court declined to categorize it as Hazelwood speech: “[N]o objectively reasonable observer could perceive that Griffith’s religious references bore the imprimatur of the School District.”

While Hazelwood diminished students’ constitutional rights in “curricular” settings, some minimal level of protection remains. In the view of most courts, this means schools may not engage in “viewpoint discrimination” by forbidding or punishing only certain disfavored opinions.

A censored student theoretically could still prevail, even after Hazelwood, by showing (for example) that not every deviation from a pre-approved text resulted in punishment. If a student went off-script to wish the superintendent a happy birthday, or to ask for a moment of silence for Newtown shooting victims, it is difficult to imagine that disciplinary sanctions would result.

If factual evidence establishes that a school enforces its “no unscripted remarks” in a selective, viewpoint-discriminatory way, then a First Amendment challenge still might survive Hazelwood.

But the most promising avenue for challenge might be the doctrine of “compelled speech.” The Supreme Court has said that no government agency, even a school, may put words into a citizen’s mouth (with the exception of a public employee acting as an on-the-clock spokesperson for the agency).

While some audience members might believe that a graduation speaker’s message represents a school-approved message, many (if not most) will believe they are hearing the speaker’s own words.

If a student is not merely prevented from delivering the message of her choice, but is forced to lend her name and voice to a school-sanitized message with which she disagrees, then the doctrine of compelled speech might give rise to a First Amendment claim. Hazelwood‘s authority to prevent the publication of speech unsuitable for the audience does not necessarily imply that schools may force students against their wishes to recite school propaganda.

If schools want to insist that commencement ceremonies are “curricular” so as to get the benefit of Hazelwood authority, then why not embrace it? Why not harness the opportunity as a “teachable moment” for the entire school community?

Any concerns about audience confusion could be dispelled with a clear disclaimer along the lines of: “I don’t know what Kaitlin is about to say to you, and I haven’t asked her. I haven’t asked her because I trust this community’s most outstanding young people — the young people who are about to inherit our democracy — will usually make good judgments with the benefit of the excellent public education we have provided them. I ask that each of you listen respectfully and with an open mind, remembering the words that Justice Abe Fortas told us in the landmark Tinker case, that America’s willingness to risk exposure to discomforting ideas is, and I quote, ‘the basis of our national strength.'”

Now that would be educational.