Graduation Speakers

[A.E. Brownstein]

        I think I have a different perspective on graduation speakers than many of
the thoughtful comments on the list. (I admit I haven't read them all - I
was away for two weeks and there were well over 100 notes on my computer
waiting my return.)

        I continue to be conservative on the issue of student speech at school
sponsored events. A school graduation is a highly orchestrated, structured
event intended to serve specific purposes. I do not believe it is an
appropriate forum for partisan political debate, sectarian religious
proslytizing, or many other messages. As a policy matter, I think school
authorities shouild monitor the content of expression at such events.
Certainly, when I attended public school school, officials routinely
exercised such authority. No student speaker would have been permitted to
criticize American soldiers or foreign policy at graduation. (see Jim
Henderson's note.) All such subjects were off limits at an event that was
intended to serve a different purpose.

        (As a policy matter, I think these limits are appropriate. My father did
not get to finish high school. He had to go to work to help support his
family. Attending my graduation from high school was a special event for
him. There are lots of opportunities for snot nosed brats to make fools of
themselves. There are not that many specials events for parents. I see
little reason to sacrifice what graduations mean to parents in order to
give student speakers license to express inappropriate messages at such
events.)

        As a constitutional matter, I think a school need not have a student
speaker at graduation. If they elect to have one, the school principle
could decide to write the student speech to be delivered at the event. I
think a student would have the constitutional right to refuse to read such
a speach, but I see nothing in the first amendment that precludes public
school officials from scripting every word that is expressed as part of a
high school assembly. If students want to participate in the school play,
they have to express the lines assigned to them. They do not have a
constitutional right to improvise. The same rules apply to chorus,
orchestra, the debating society, and the plays the quarterback calls on the
football team. A graduation assembly can be similarly supervised. The
speech permitted at the assembly is government speech -- a part of the
school program under the control of school administrators.

        The more difficult constitutional question is how we evaluate a graduation
event where the
school authorities decline to exercise the kind of authority I described
above. I have difficulty conceptualizing the student delivering the
validictory address as a speaker in a designated public forum for many of
the reasons Doug Laycock suggested. It is after all a strange kind of
forum. Only one person gets to speak, no one can respond, and the audience
is coerced and captive. Moreover, the school could, in theory, undesignate
the graduation as a public forum if it learned ahead of time that a student
planned to express an extremely inappropriate message. (I have never been
sure about the rules that control undesignating a public forum -- but I
think the possibility exists.)

        If the graduation is a nonpublic forum, reasonable content discriminatory
rules will be upheld. I think  a prohibition against advocacy or speech on
controversial subjects might be upheld under this rubric.

        It is also not clear to me where the private actor -- government actor
line should be drawn here for first amendment purposes. Assume a private
citizen is invited to "guest teach" a class in rhetoric at a public school
and is provided few if any instructions regarding what he should speeak
about. He elects to tell the students why they should join his religion and
abandon their own. If the teacher interupts him, explains that this is not
an appropriate lecture for the class, and tells him to stop speaking, has
the citizen's first amendment rights been abridged? If the teacher does not
interrupt him other than to tell the students that the speaker is
expressing his own views, not those of the school, is there an
establishment clause violation? If the guest speaker is a student, not an
outsider, does the analysis change? If all of this occurs at an assembly or
school sponsored event, but not in the classroom itself, is a different
constitutional analysis required?

                                                                                        Alan Brownstein
                                                                                        UC Davis