Tuesday, November 16, 2010
Students often compare their schools unfavorably to prisons, most often in a tone of rueful irony. By contrast, judicial opinions about freedom of speech within government-run institutions compare schools and prisons without irony or even hesitation. This Article considers whether the analogy between school and prison in free speech cases is evidence that the two institutions share a joint mission. At a macro-level, there is an undeniable structural similarity between the constitutional speech rules for schools and prisons. At a micro-level, however, there are subtle but significant differences between the two. The differences arise primarily from the judiciary’s belief that differences exist between the purposes of schools and prisons - although, somewhat ominously, the differences appear even more subtle when comparing schools to jails. Just as judicial beliefs about social reality affect constitutional outcomes, the constitutional rules in turn affect social reality. Courts should be wary of language that equates schools with penal institutions, lest the analogy become a self-fulfilling prophecy.
Download the article from SSRN at the link.