Tennessee Elementary School Students Barred from Discussing a Certain Subject During Recess:

A 10-year-old student and his friends were barred from engaging in a certain kind of speech during recess at Karns Primary School. The recess in that school, I’m told, is about 30 minutes long, and students are generally allowed to play, sit and read, talk, and do lots of other things. But this student and his friends were barred from engaging in one particular kind of speech. What is this speech that a Tennessee school has decided must be banned?

1. Wearing black armbands to protest the war.

2. Displaying a confederate flag.

3. Discussing the Wiccan neo-pagan religion.

4. Wearing insignia that depicted firearms.

5. Something else.

And the answer is . . . #5, specifically discussing the Bible. Those are the charges levied in a lawsuit filed by the student’s parents (see the Complaint here). And to my knowledge, the charges seem accurate: The Principal’s letter to parents specifically says that “children could not have a Bible study class” — which apparently includes an informal group of a few kids sitting around and talking in the schoolyard — during recess; I have seen a copy of it myself.

I’ve long been appalled by the willingness of government officials to discriminate against religious speech this way. It’s true that under the Court’s Establishment Clause caselaw the government generally may not itself engage in religious speech (especially in K-12 schools), nor may it give preferential treatment to religious speech. But this ban on government preferences for religious speech doesn’t require or authorize discrimination against private religious speech. Such discrimination is itself unconstitutional; it violates the Free Speech Clause, and in my view the Establishment Clause and Free Exercise Clause as well (though that’s less clear than the Free Speech Clause violation).

Here, the students were trying to talk religion on their own, in a time and place in which students were perfectly free to talk about other subjects (sports, television, politics, and so on). This wasn’t an organized class activity. (School officials naturally are entitled to more control over speech in such activities, for a variety of reasons.) Any students who weren’t interested in talking or hearing about the subject were free not to talk or hear about it. There was, to my knowledge, no evidence that the speech would cause material disruption. And ten-year-olds are perfectly capable of distinguishing what their classmates say on their own from what the school is saying or endorsing as true, and the speech in this instance was clearly on the “classmates say on their own” side of the line.

Unless there’s something seriously missing from the news story and the Principal’s letter, there seems to me to be no justification for this, except an assumption that “separation of church and state” (a rather misleading phrase) requires the state to suppress speech by students, who are clearly not the “state.” The Supreme Court has repeatedly rejected this assumption, for over two decades in education generally, and over a decade as to K-12 education in particular; and so have lower courts. It bothers me that so many school officials still haven’t gotten the message, and continue to violate students’ First Amendment rights.