Port: 'America’s public schools are the nurseries of democracy'

“Our representative democracy only works if we protect the ‘marketplace of ideas,'" Justice Stepehen Breyer wrote in a recent opinion upholding the free speech rights of students.

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Neche Elementary school first graders wave their flags at the flag retirement ceremony Thursday morning. Jesse Trelstad/ Grand Forks Herald

MINOT, N.D. — There's is much contention, of late, about expression in the classroom.

Not just nationally, but right here in our region.

In Fargo, there is an effort by right-leaning activists to recall members of the local school board over, among issues, the perceived promotion of critical race theory.

In Wahpeton, there was public outrage from left-leaning parents after a teacher allowed a discussion about George Floyd to progress to a point where students were re-enacting the scene from the infamous video showing his death. This prompted Superintendent Rick Jacobson to insist that his district doesn't "support or tolerate any activity that would make students uncomfortable in the learning environment."

I disagree with Jacobson's sentiment, as I noted in a previous column , but I believe, in attempting to placate popular outrage in his district, he stumbled onto what's driving consternation in our schools.


Many, from parents to administrators, teachers to students, are not tolerant of things that make them feel uncomfortable.

It is in this environment that the U.S. Supreme Court has issued a new opinion on the state of student free speech rights.
In an 8-1 ruling, the court found that a Pennsylvania school district violated the First Amendment rights of Brandi Levy, then 14 years old, when they suspended her from the cheerleading team after she went on a profanity-laced rant inspired by her failure to make the varsity team.

Levy and her adolescent tantrum don't make for the most sympathetic of plaintiffs, but the court's ruling is an important one.

Not since the landmark 1969 decision in Tinker vs. Des Moines , when the court upheld the speech rights of students protesting the Vietnam War with black armbands, has such a step been made to protect the rights of students.

It's not a perfect ruling. In the brief majority opinion Justice Stephen Breyer, working very hard to draw limits on the ability of schools to act against the speech of students outside of school hours, and off of school grounds, mentioned the in loco parentis doctrine four times.

This is a doctrine that addresses the unique roles teachers and school administrators play.

As parents, we cannot violate the First Amendment rights of our children (though my 13-year-old has attempted to litigate this in our living room). Teachers and school officials are agents of the state, which means they fall under the constitution's strictures on the abridgment of speech and religion, etc. In loco parentis holds that teachers, charged with caring for and educating students in the school setting, can be seen as taking on a parental role, and thus can be allowed some leeway from more rigorous applications of constitutional prohibitions.


Breyer's opinion, while great for the speech rights of students outside of school, isn't as good for the rights of students in schools.

But beyond the legal specifics, Breyer's opinion, with only Justice Clarence Thomas dissenting, provides us with some words we could all live by as we grapple with culture war issues in our schools.

Schools have "an interest in protecting a student’s unpopular expression, especially when the expression takes place off campus, because America’s public schools are the nurseries of democracy," he wrote.

“Our representative democracy only works if we protect the ‘marketplace of ideas,'" he continued.

I think many of us can agree that our representative democracy isn't functioning particularly well right now. Vast swaths of Americans don't trust their political leaders, or their thought leaders, or even election outcomes.

Meanwhile in our schools - the "nurseries of democracy" - we are at war with one another over what sorts of speech we're going to allow.

Can you imagine being a teacher or an administrator today? Terrified that one day's involved classroom discussion of some controversial topic might become tomorrow's headline, complete with the sort of social media mob justice that has become de rigueur in such controversies?


Breyer is right.

America can't function if Americans, including our students, can't express themselves without fear of being canceled.

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Rob Port, founder of, is a Forum Communications commentator. Reach him on Twitter at @robport or via email at .

Opinion by Rob Port
Rob Port is a news reporter, columnist, and podcast host for the Forum News Service. He has an extensive background in investigations and public records. He has covered political events in North Dakota and the upper Midwest for two decades. Reach him at Click here to subscribe to his Plain Talk podcast.
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