Social Education 55(6) pps. 380-383
©1991 National Council for the Social Studies

The First Amendment and the Rehnquist Court: Protecting Majority Values or Limiting Individual Liberty?

David Schimmel
During recent decades, many citizens have complained that the courts have usurped the legitimate authority of state and local governments. They have been particularly critical of federal judges for intervening in local affairs and for using the Bill of Rights as a weapon and justification for imposing their personal values on local institutions (such as the public schools) without any democratic check by the citizens. Such critics have welcomed recent Supreme Court decisions that have weakened First Amendment protections and have given greater power to local majorities. But those who prize the federal courts' role in protecting the rights of the minority to express unpopular opinions or practice unpopular religions have been dismayed.
Thus, the bicentennial of the Bill of Rights finds the First Amendment at a constitutional crossroad. This article examines a series of recent Supreme Court opinions that illustrate how the justices arrived at that crossroad and how they are reinterpreting the First Amendment. The first section looks at two controversial decisions that stopped the expansion of student freedom of expression and then discusses the implications of those decisions for public schools. The second section examines the Court's tendency toward a radical reinterpretation of the Establishment and Free Exercise Clauses-the possible destruction of the wall of separation between church and state, and the toleration of new limits on freedom of religion.

Student Freedom of Expression
The Supreme Court's change of direction can best be understood in the context of its landmark decision Tinker v. Des Moines Independent School District, 393 U.S. 503 (1969), which proclaimed that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." In Tinker, the Court upheld the students' right to wear black armbands to protest the Vietnam War even though they knew that school policy prohibited such behavior. The Court ruled that "apprehension of disturbance" was not enough to restrict student expression that could be punished only if it would "materially and substantially" interfere with schoolwork or with the rights of others. In a strong dissenting opinion, Justice Black wrote that Tinker would result in the subjection of "all the public schools in the country to the whims and caprices of their loudest-mouthed, but maybe not their brightest, students." Despite these concerns, Tinker firmly established the First Amendment in the public schools and required judges to look critically at administrative restrictions on student expression.

In 1986, however, the Supreme Court began to narrow its interpretation of Tinker. This first occurred in the case of a high school senior, Matthew Fraser, who was suspended for giving a controversial six-sentence nominating speech at a school assembly. According to the Court, Fraser described his candidate in terms of "an elaborate, graphic, and explicit sexual metaphor" (Bethel School District No. 403 v. Fraser, 478 U.S. 675 [1986]).

1 Fraser claimed that his speech caused no substantial disruption and therefore was protected by the Court's ruling in Tinker. A majority of the justices disagreed.

The Court distinguished the "sexual content" of Fraser's speech from the "political message" of the students who wore black armbands to protest the Vietnam War in Tinker. Chief Justice Burger reasoned that since one purpose of the public schools is to teach "manners of civility," educators can "prohibit the use of vulgar and offensive terms." Furthermore, wrote Burger, it is the job of school authorities to determine "what manner of speech in the classroom or school assembly is inappropriate." According to the Chief Justice, since it is unnecessary in discussions of ideas or the search for truth, indecent and offensive speech occupies a low position in the "hierarchy of First Amendment values" and is "clearly outweighed by the social interest in order and morality." Justice Burger further signaled the Court's change of direction by quoting, with approval, Justice Black's dissenting opinion in Tinker that the Constitution does not compel teachers, parents, or school officials "to surrender control of the American public school system to public school students."

Justice Burger's opinion permitted two conflicting interpretations. Those concerned with protecting student freedom of expression argued that Fraser merely carved out a narrow exception to Tinker. They emphasized that Burger's decision reaffirmed that First Amendment rights apply to public schools, that fundamental democratic values must include the teaching of tolerance for divergent political and religious opinions, and that there exists an "undoubted freedom to advocate unpopular and controversial views in schools and classrooms." Those concerned with expanding community control highlighted Justice Burger's comments that school officials have the power and responsibility to prohibit offensive language, and that teachers, parents, and administrators have broad discretion to determine what is offensive in their local school.

Any ambiguity or confusion caused by Fraser was clarified two years later in Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988).

2 This case arose when a high school principal censored two stories in a newspaper published by students as part of their journalism course. One of the stories concerned three students' experiences with pregnancy; the other was about the effects of divorce on students. The editors claimed the principal violated their freedom of the press. The Court disagreed.

On behalf of the Court's majority, Justice White wrote that the Tinker principles still applied in cases concerning "a student's personal expression" that happens to occur in school. According to the Court, however, the official school newspaper was different; it was a "supervised learning experience for journalism students" and part of the curriculum. Therefore, the Court ruled that school officials were entitled to regulate its content "in any reasonable manner." Justice White explained that in school-sponsored publications educators may regulate not only disruptive expression but also may set "high standards" and prohibit articles that are "ungrammatical, poorly written, inadequately researched, biased or prejudiced, vulgar or profane, or unsuitable for immature audiences." Similarly, schools may refuse to sponsor student expression that may "advocate drug or alcohol use, irresponsible sex," or associate the school with a controversial political opinion. Accordingly, the Court held that educators do not violate the First Amendment by "exercising editorial control over the style and content of student speech" in school-sponsored publications or theatrical productions "so long as their actions are reasonably related to legitimate pedagogical concerns."

In a dissenting opinion, Justice Brennan, joined by Justices Blackmun and Marshall, criticized the majority's approval of "brutal censorship" and implied that Hazelwood might lead to a reversal of Tinker and to a public school system in which educators act as "thought police," stifling discussion of "all but state-approved topics and advocacy of all but the official position." According to Justice Brennan, instead of teaching students to respect our democratic liberties and to understand that "our Constitution is a living reality," the majority's decision teaches them "to discount important principles of our government as mere platitudes."

As a result of Tinker, Fraser, and Hazelwood, two different tests are now available to judge the scope of school control over student expression. First, students' personal views are still governed by Tinker, and schools may not restrict them unless they cause substantial disruption, interfere with the rights of others, or are indecent and offensive. Second, Hazelwood applies to school-sponsored expression that educators may censor for "valid educational purposes." Thus, the Court seems to have approved a "reasonableness" test under which administrative control of school-sponsored publications and plays will be presumed valid unless students can meet the difficult burden of showing that a school restriction is "unreasonable" or has "no valid educational purpose."

The implications of Hazelwood are twofold. First, it confirms a trend that began with Fraser, suggesting that in close freedom of expression cases brought by students who challenge school authority, a majority of the Court is likely to support the school administration rather than students. Second, it forces educators to distinguish between what they have authority to do legally and what it is wise to do educationally. The fact that schools may now censor school-sponsored publications does not mean that they should. Hazelwood requires educators and school boards, not judges, to answer the educational question: What is the best way for school-sponsored newspapers to prepare citizens to exercise their freedom of expression in a fair and responsible manner? Is it by prohibiting students from publishing "articles about sensitive topics"? Or is it by teaching students to demonstrate high standards of responsible journalism when they write about controversial issues?

Freedom of Religion
The two religion clauses of the First Amendment are used in different ways. The Establishment Clause ("Congress shall make no law respecting an establishment of religion...") usually poses the question of when courts should strike down laws or government policies that are alleged to promote religion. The Free Exercise Clause ("...or prohibiting the free exercise thereof") has been used by religious minorities who feel they are entitled to a judicial exemption from laws that interfere with their freedom of religion. The Supreme Court is in the process of changing its interpretation of both religion clauses.

The Free Exercise Clause
Until 1990, the Court used a balancing test to determine whether religious believers should be exempt from laws that interfered with their religion. If they could show that the law substantially burdened a central aspect of their faith, they would be exempt unless the state proved that the law served a "compelling government interest." Thus, the Supreme Court exempted the Amish from Wisconsin's compulsory education law after the 8th grade when it was shown that enforcement of the law "would gravely endanger, if not destroy, the free exercise of their religion" and that the state was unable to prove a compelling need for additional education (Wisconsin v. Yoder, 406 U.S. 205 [1972]).

This traditional approach to free exercise claims, however, was substantially changed in Employment Division, Department of Human Resources of Oregon v. Smith, 110 S. Ct. 1595 (1990), a Supreme Court decision on the right of members of the Native American Church to use peyote in their religious ceremonies. On behalf of a 5-4 majority, Justice Scalia's opinion sharply restricted the protection of the Free Exercise Clause.

In Smith, the majority rejected the balancing test and held that "laws that have the effect of burdening a particular religious practice need not be justified by a compelling government interest." According to Justice Scalia, adopting the compelling interest test "would be courting anarchy," a danger that increases "in direct proportion to the society's diversity of religious beliefs." Scalia's approach would result in allowing, but not requiring, individual states to exempt specific religious practices such as the use of peyote. Justice Scalia acknowledged that leaving these decisions to the political process might put religious minorities at a disadvantage. But, he concluded, "that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs."

In a concurring opinion sharply critical of Justice Scalia's reasoning, Justice O'Connor wrote that the majority decision "dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation's fundamental commitment to individual religious liberty." Justice O'Connor, together with Justices Brennan, Blackmun, and Marshall, argued that the compelling interest test has worked effectively in protecting both religious liberty and important public interests.

She rejected Justice Scalia's suggestion that putting religious minorities at a disadvantage was an "unavoidable consequence" of the democratic process. On the contrary, she wrote, "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority....The history of our free exercise doctrine amply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish."

The Establishment Clause
In 1947, the Court summarized its general view of the Establishment Clause in one sentence: "In the words of Jefferson, the clause against establishment of religion by law was intended to erect a 'wall of separation between church and state'" (Everson v. Board of Education, 330 U.S. 1 [1947]). When individuals challenged a government action or policy as a violation of the Establishment Clause, the Court, for almost twenty years, has applied a three-part test. This test, authored by then Chief Justice Burger in Lemon v. Kurtzman, 403 U.S. 602 (1971), holds that a state law or school policy should be held unconstitutional if (1) it has no secular purpose, (2) it is not neutral, i.e., its primary effect promotes or undermines religion, or (3) it fosters excessive government entanglement with religion. Under the tripartite Lemon test, the Court struck down laws requiring public schools to promote reverence for the Ten Commandments, to restrict the teaching of evolution, and to encourage students to pray.

For a number of years, Justice Rehnquist has been critical of the Lemon test and the notion that the Establishment Clause requires a wall of separation between church and state. This criticism culminated in a strongly worded dissenting opinion in Wallace v. Jaffree, 472 U.S. 38 (1985), that attacked both the tripartite test and the wall of separation. According to Justice Rehnquist, the Lemon test "is difficult to apply," "yields unprincipled results," and "has produced only consistent unpredictability." The usual judicial response to the difficulties in applying a constitutional standard such as the tripartite test would be to modify or reformulate it. But Justice Rehnquist rejects these alternatives. Instead, he chooses a radical approach-a complete rejection of the underlying principles that support the Lemon test. Thus, he proposes overturning more than forty years of precedent and the well-established belief that the separation of church and state is a basic constitutional value.

3 Justice Rehnquist argues that in the nineteenth century the Establishment Clause merely "forbade establishment of a national religion" and "preference among religious sects"; it "did not require government neutrality between religion and irreligion, nor did it prohibit the Federal Government from providing nondiscriminatory aid to religion." Thus, writes Rehnquist, "there is simply no historical foundation for the proposition that the Framers intended to build a walquot; between church and state. The wall of separation, concludes Rehnquist, "is a metaphor based on bad history, a metaphor which has proved useless as a guide to judging." It should, he urges, "be frankly and explicitly abandoned."

When Justice Rehnquist wrote his dissenting opinion in Jaffree, it received little publicity. In 1985, it was still possible to dismiss his views as a lone strident voice of an associate justice at the far right edge of the Court. But that was before the appointments of conservative Justices Kennedy and Scalia, before Rehnquist was appointed Chief Justice, and before the resignations of the Court's senior liberal justices, Thurgood Marshall and William Brennan. Today, the Supreme Court is shifting further to the right, and at least three associate justices now support the Chief Justice's criticism of past Establishment Clause decisions.

This change is clearly reflected in a 1989 dissenting opinion in County of Allegheny v. American Civil Liberties Union Greater Pittsburgh Chapter, 492 U.S. 573 (1989), by Justice Kennedy, joined by Justices Scalia, White, and Rehnquist. According to Kennedy, if the federal courts act as "jealous guardians" of an absolute wall of separation, this would not reflect neutrality but would send "a clear message of disapprovaquot; of religion. In Kennedy's view, the Establishment Clause imposes only two limiting principles: (1) "government may not coerce anyone to support or participate in any religion"; and (2) "it may not establish a state religion." According to the four dissenters, however, "government policies of accommodation, acknowledgment, and support for religion are an accepted part of our political and cultural heritage."

Current Interpretations
What is the current interpretation of the Establishment Clause? A slim majority of the Court seems to have adopted Justice O'Connor's reformulation of the traditional tripartite test into a two-part inquiry of "whether government's purpose is to endorse religion and whether the statute actually conveys a message of endorsement" (Wallace v. Jaffree 1985). Thus, although five justices have prohibited government policies that endorse religion, a growing, younger group of justices is poised to change fundamentally the meaning of the Establishment Clause in the United States and allow government action clearly intended to encourage religion.

4 If the Court adopts either the Rehnquist or the Kennedy interpretation of the Establishment Clause, public schools would not necessarily start each day with prayers and states would not necessarily fund religious schools. Rather, the type of government activities courts have found in violation of the Establishment Clause during the past forty years would no longer violate the First Amendment. This, however, would not resolve the debate about church versus state issues. In fact, it might intensify and widen the debate-shifting it from the Supreme Court to every state legislature and school district in the nation. This approach would allow states and local communities to decide whether to endorse or encourage religion or whether to create a wall of separation between church and state in their jurisdiction.

Trends and Consequences
During recent decades, citizens have turned to the federal courts for protection when they believed their First Amendment rights were violated. Most constitutional controversies that reach the Supreme Court, however, are not cases of right against wrong but of legitimate values in conflict. Thus, it is the Court's job to interpret and apply the Constitution and to decide when to protect and when to limit individual rights-often by balancing the values of the democratic majority against the rights of controversial minorities or unpopular individuals. Because these judgments change over time, the scope of First Amendment rights also changes.

Just as the Supreme Court's decision in Tinker dramatically expanded freedom of expression for students during the 1970s, so the Fraser and Hazelwood cases have narrowed that freedom during the 1980s. Similarly, the Court has expanded and contracted the scope of religious freedom. For decades, all of the justices agreed that the Establishment Clause meant that a wall of separation should stand between church and state and that government should be neutral in matters of religion. But, in recent years, an increasing minority of the Court has challenged both of these beliefs, and the challengers are just one vote short of a revolutionary change in Establishment Clause jurisprudence. Moreover, a slim majority has recently reinterpreted the Free Exercise Clause. According to Oregon v. Smith, citizens are no longer entitled to an exemption from laws that substantially interfere with their religious practices even though enforcement of those laws does not serve a compelling public interest.

5 From the perspective of people concerned with the widest possible protection for freedom of religion and expression, this trend of Supreme Court decisions is a disaster. From the perspective of those who feel that the Court has gone too far in interfering with the rights of the majority, on the other hand, these changes are a long-awaited triumph. Whether we view these decisions as an appropriate return to the principles of federalism or an abdication of the responsibility of the Supreme Court to protect minority rights, citizens must study, examine, and attempt to understand them; in the years following the bicentennial of the Bill of Rights, the Court will be less likely to resolve these matters for us because an increasing number of Supreme Court justices want elected representatives, not appointed judges, to decide traditional First Amendment conflicts. Thus, the question and challenge for the coming decades is how well our schools are preparing future voters to confront these complex and critical issues.

To enable students to understand the hard constitutional questions their communities may have to confront, teachers can help them examine issues such as these: Should schools prohibit students from publishing unpopular and controversial views in campus newspapers? Should taxes help pay for parochial schools? Should communities be allowed to encourage voluntary, school-sponsored prayer? Should the government protect the public expression of religious or political views that offend most citizens? What are the reasons today to maintain or demolish the wall of separation between church and state? The bicentennial is an apt time to consider these questions, and to seek ways to improve the teaching and practice of our fragile First Amendment freedoms.


1 See David Schimmel, "Lewd Language Not Protected: Bethel School District v. Fraser," Education Law Reporter, 33 (2 October 1986): 999.

2 See David Schimmel, "Censorship of School- Sponsored Publications: An Analysis of Hazelwood v. Kuhlmeier," Education Law Reporter, 45 (9 June 1988): 941.

3 See David Schimmel, "Education, Religion, and the Rehnquist Court: Demolishing the Wall of Seperation," Education Law Reporter, 56 (23 November 1989): 9.

4 The current case of Weisman v. Lee (90-1014), concerning invocations at public school graduations, will be argued before the Supreme Court this fall and will give the new justices an opportunity to reinterpret the Establishment Clause.

5 In an attempt to reverse this decision, over forty members of congress are sponsoring a bill prohibiting government burden on religion except "to further a compelling government interest" (Religious Freedom Restoration Act of 1991, H.R. 2797).

David Schimmel is an attorney and Professor of Education at the University of Massachusetts in Amherst, Massachusetts 01003.