FIRE Legal Scholarship: Kelly Sarabyn’s ‘Prescribing Orthodoxy’ Published in ‘Cardozo Public Law, Policy and Ethics Journal’

By on June 16, 2010

Hot on the heels of our last published legal scholarship, FIRE is pleased to announce the publication of "Prescribing Orthodoxy," an article by our former Justice Robert H. Jackson Legal Fellow Kelly Sarabyn, in the Cardozo Public Law, Policy and Ethics Journal. This is the third law journal article devoted to FIRE-related topics that Kelly has published from her time as a Jackson Fellow. The article’s abstract provides an overview of Kelly’s argument:

In West Virginia State Board of Education v. Barnette, the Court famously held that no state could prescribe an ideological orthodoxy. Yet more than sixty years later, the constitutional doctrines governing that proscription are in disarray. This article argues that Barnette‘s proscription should be understood as banning the state from intentionally utilizing non-rational methods to purposely shape citizens’ ideological beliefs. After espousing this theory, the article will examine the unconstitutional condition and government speech doctrines, and demonstrate how a constitutional principle banning the prescription of orthodoxy provides them with a much-needed coherence.

FIRE has long fought against universities’ invasions into the private consciences of students and faculty members, viewing such actions as pernicious harms that have no place in a free and open society, and as particular threats to the true marketplace of ideas that the college campus is supposed to be. One need only look at the thought reform program that FIRE helped to dismantle at the University of Delaware to understand the perils involved when universities attempt to prescribe orthodoxy to their students. True liberty cannot exist in a society where citizens are forced to conform their beliefs and expressions to those viewpoints that are prescribed by authority, and this is certainly true when it comes to students attending college. In this setting, students should be allowed to become mature adults, have the opportunity to explore a whole universe of issues, and shape and refine their worldviews. State-run interference with the right to private conscience does much harm to this process and therefore can have major repercussions for students’ lives beyond college.

Given FIRE’s longstanding commitment to defending this constitutional right, the publication of Kelly’s article is exciting indeed. I encourage any Torch reader interested in the issue or in legal scholarship more generally to read the article. You can download it from FIRE’s site here or from the Social Science Research Network (SSRN) here.

Kelly, a 2007 graduate of Yale Law School, was selected as one of FIRE’s inaugural Jackson Legal Fellows. During her time at FIRE, Kelly wrote many insightful blog posts for The Torch, compiled here. She also has published two other pieces of legal scholarship related to FIRE’s issues. Her article titled "The Twenty-Sixth Amendment: Resolving the Federal Circuit Split Over College Students’ First Amendment Rights" was published in the Texas Journal on Civil Liberties & Civil Rights in April 2009. More recently, her article on "Free Speech at Private Universities" was published in the April 2010 volume of the Journal of Law & Education.

Congratulations, Kelly, on your achievement!