Will elementary, secondary, and university students, off campus as well as on campus, be forbidden to criticize, for example, critical race theory and the new American history curricula? And will that prohibition be extended to parents?

The grandiose and centralized cradle-through-college education plans of Joe Biden and the Democratic party have now been plainly stated. In his April 27th address to Congress, Mr. Biden said that his purpose was to “guarantee four additional years” of free public education, two before first grade and two after 12th grade. In his American Families Plan released the next day, he said that his purpose was to “make transformational investments” in education, including developing “appropriate curriculum.”

On April 19, the Department of Education published a proposed rule seeking applicants to develop secondary-school curricula in American history and civics education addressed to “the ongoing national reckoning with systemic racism.” In March, Democrat Senator Chris Coons (Delaware) and Republican Senator John Cornyn (Texas) introduced a bill, the Civics Secures Democracy Act, whose purpose is to design civics education curricula for “elementary” and “secondary” schools, as well as universities. In his campaign, Mr. Biden had said that he would “build an education system that starts investing in our children at birth.” Likewise, in their 2020 Platform, Democrats had said that they wanted to “reimagine our education system.”

This interest in controlling Americans from cradle to college helps us understand why the Biden administration intervened in the April “student free speech” case in the Supreme Court and why the most liberal administration since the Great Society repudiated one of the political accomplishments and high symbols of 1960’s liberalism.

In Tinker v. Des Moines, high-school students wearing black armbands to school to protest the Vietnam War in 1965 were suspended “to prevent disturbance of school discipline.” By a 7-2 vote, the Supreme Court found that the passive wearing of armbands did not interfere with the work of the school or the rights of other students. Stating that “schools may not be enclaves of totalitarianism,” the Court held that school officials do not possess absolute authority over their students and that schools cannot control or forbid student on-campus speech unless the speech constitutes a “substantial disruption of or material interference with school activities.”

The Tinker Court’s famous utterance that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate” was a landmark of the 1960s and that—until now—has continued as a symbol of liberation and rebellion for students at all levels of education, including university.

In the case argued in the Court two weeks ago, Mahanoy v. B.L., A Minor, a high school sophomore, a member of the junior-varsity cheerleading squad, failed to make the varsity squad. Over the weekend, she sent a “f*** school f*** softball f*** cheer f*** everything” with appropriate finger gesture in a social-media message to friends. After the message was further circulated and became more widely known, the cheerleading coach suspended her from that junior varsity team. She was not otherwise disciplined by the school.

In filing a First Amendment free-speech challenge based on Tinker, the student argued that Tinker in its facts and constitutional ruling has nothing to do with speech expressed outside of the “schoolhouse gate,” and that, therefore, the school district should not be allowed to absorb and regulate her off-campus constitutional speech by means of claiming that it “substantially and materially” disrupted what occurred on campus. Both lower federal courts ruled in her favor. The federal district court made an essentially factual ruling that under Tinker, the student’s words had not “substantially” disrupted the school. The court left it as “an open question” whether Tinker could even be applied “beyond the schoolhouse gate.” A unanimous three-judge panel of the federal appeals held that the student had an independent free-speech right that she did not waive “as a condition of joining the team” and that Tinker did not even apply because the statement was “off campus.”

The unusually lengthy two-hour oral arguments in Mahanoy were circular again and again. All parties agreed—at least nominally—that students have constitutional free-speech rights. But that turned out to be a minor and background point. The case came down to two questions: First, should Tinker’s school authority to regulate “material and substantial” school concerns be extended to off-campus speech that criticized the school? If answered in the negative, then the school’s discipline of the cheerleader must be overturned, as the two lower federal courts had already held. The second question was if Tinker is extended, explicitly or effectively, outside the gate, how far will or must the Supreme Court go in its ruling? At oral argument, a majority of the justices expressed significant and even great hesitation at the prospect of having the Court write the new national school-speech code.

The Biden administration’s purpose effectively to overturn Tinker and to have public schools control all student speech, on or off campus, was expressly stated by the Department of Justice’s (DOJ) lawyer when he said, “there is no meaningful causal link between the place from which an online communication is sent and the likelihood that it will disrupt school operations.” The school district’s lawyer agreed and argued that students “shouldn’t be able to place their speech off limits just by stepping off campus.”

The student’s lawyer placed the arguments in the larger, that is to say, constitutional context: “Expanding Tinker [off campus]… would upend the First Amendment’s bedrock principle and would require students to effectively carry the schoolhouse on their backs in terms of speech rights everywhere they go. It would also directly interfere with parents’ fundamental rights to raise their children.”

As for the factual basis of this “constitutional” case, is it much ado about nothing? The school district and Mr. Biden’s DOJ are vehement that the words uttered by the student were “school speech” in that they undermined the “team cohesion” of a school activity—cheerleading. But did the cheerleading coach overreact? If the student had followed up with her off-campus criticism by exhibiting a bad attitude in her actual participation in cheerleading, then the school could have dismissed her from the squad for not being cheerful. And did not the peevish student personally undercut herself and make herself appear ridiculous, thus, guaranteeing that her outburst was passing and had nothing important to do with the school or other students? Moreover, how can lewd speech be a public or constitutional concern nowadays? The mainstreaming of lewdness is one of the accomplishments of our progressive society.

At oral argument, the Biden administration’s attorney was forthright in expressing the administration’s comprehensive purpose. He said that “school speech is only one context in which participants in government programs can be made to accept speech restrictions that couldn’t be imposed on the general public.” He actually gave his own employment as an example. He said that the Department of Justice could discipline him for his extracurricular and off-the-job statements about the Department, thus ignoring that his employment is a voluntary adult choice for him while attendance at school is mandatory for those not legally of age.

So, public schools are “government programs,” and, of course, all such programs come with government regulations. The Biden education agenda, already revolutionary in its reach and content, will obviously be likewise revolutionary in its regulations, including the regulation of speech. Indeed, over the last three months, Mr. Biden has already cancelled several Trump executive orders and policies that served to limit federal regulatory power in general.

The Tinker decision, whose precedential authority was still obvious to the two lower federal courts in Mahanoy, is not fundamentally about education. It is a decision about constitutional free-speech rights that all Americans have, adult and youth, have and whether and when those rights can be restricted by passing through certain “gates.”

Will elementary, secondary, and university students, off campus as well as on campus, be forbidden to criticize, for example, critical race theory and the new American history curricula? And will that prohibition be extended to parents?

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