Transcripts For CSPAN2 Book Discussion On Lessons In Censorship 20160417

Europe into some of it is not allowing them to some of is not that you can see the cathedral and the National Board for the time it was created. You have england, ireland and scotland. Of course the way that it takes place our collection holds a large quantity of items about that exploration which includes the moment plan they come to the United States so youve got the colonies in jamestown that is shakespeares world planting itself in north america and that is a complicated history and part of the history of the country. Host yes he was when he wrote tempest he wrote a pamphlet about a shipwreck in bermuda but he makes reference to stories about the new world of new world that were coming back and so he never visited it. He would probably have great information that when he but when he uses the phrase like brave new world, he is saying there is a place we havent explored overturning our expectations about what human beings are like and what nature is like. Thats something that is firing to the imagination. Spinnaker was a portion of this work booktv took up the library. You can watch the full tour online at booktv. Org. We will be live from the library at noon on april 23 to commemorate the 400th anniversary of William Shakespeares death. [inaudible conversations] him good afternoon and welcome to the Cato Institute. Im Vice President and publisher and i would like to thank you for coming here today for the viewers online being broadcast by cspan. You may not know the washington subway metro system was closed today so the people that have joined us made a great effort to hear something about this book lessons and censorship have a subvert First Amendment rights which is the topic of the book for him today forum today. We chose for this particular book and the reason is it is the 255th birthday of a man named James Madison and as it happened James Madison wrote the First Amendment because he wrote the first that were introduced into congress and beyond that was more than just the author or the person who wrote them but was also a strong defender and believed very heavily in them. I should say also i learned part of medicines birthday means the First Amendment center valuable has designated his Birthday National freedom of information day which we are celebrating along with the publication of the book. I cant help however referred refer to what i thought was an interesting and a useful comment for madison on this very topic First Amendment freedom amendment freedom of speech. He wrote a popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy they must arm themselves with the power that knowledge gives and we will continue in this as we go down to the history of the United States and that the First Amendment is a central theme of as catherine just said to make the whole system work. Madison interestingly they designated him as a list first person to move go into the freedom of information act hall of fame which is interesting. With that said we have a person here who down the line will be a candidate for being in the freedom of information at hall of fame. The author is a law professor at George Washington university and during the current academic years at the Harvard Graduate School of education this book lessons and censorship was named the best work by the concurring opinions First Amendment views. Professor ross specializes in constitutional law with an emphasis as you might guess in the First Amendment also family law and the legal and policy issues concerning children. Shes published widely and has been interviewed on Many Television shows and has testified before congress. On the panel that we had it was in the conversation which i recommend to everyone here both in general and a month or two find it at cato. Org. On twitter the hash tag is cato events. Professor ross has also been on the associations steering committee. To the family court review in family law shes a distinguished advocate of the First Amendment we are happy to welcome you and the Cato Institute to talk about the book. Thank you to all of you for raising the streets of washington state. The equivalent of the snow day. Im going to begin by reading the opening from my book. The accounting new york proclaimed in the spring of 2012 you are not allowed to do this she asserted as she confiscated flyers from an indignant student who was protecting her friends suspension. Later upon censorship the episode had a quality. They had been punished for the opposition to bullying but in the way that the school deemed inappropriate. The seizure was as clueless as it was surreal because the First Amendment protects the speech rights of Public School students in grades k12 and yet schools all over the country regularly censor speech by children and judges often let them get away with it. When i use the word censorship throughout, im talking about stopping speech before it happens and punishing it afterwards. Schools silence and punish students to express their own opinions on every side of important issues that we are debating including national and local politics, the rights of persons, guns, a abortion and why. They suspended a sixyearold who called a classmate a poo poo head and another person shared her personal experience of finding christ was like finding a lost dog. In the upper grades, school suspended two boys who were political tshirts. One praising the marines poo poo head im sorry, john is this there is a mechanical problem here. Is there a im going to have to do it appear. Me should have practiced. I thought that this was set up. Now im just trying to figure out can we pause here . This is awful i have a beautiful shirt to show you. One was praising the marines and another boy was criticizing president george w. Bush as a substance abusing chicken hawk and schools are increasing the authority to punish students for what they say offcampus on their own time im a subject i will return to at the end of my comments. The constitution protects all of this expression as well as the speech that adults might regard as worthless. But the constitution protects worthless as well as worthwhile speech. And when we talk about students, we are also often talking about adolescent humor simply beyond adult comprehension. Students were especially likely to get in trouble for speaking up with somebody elses parent finds the speech controversial which really means they say that its offensive because i disagree with it. That controversial and disagreeable speech are but this is designed to protect. That powerpoint is just disappearing okay. Thank you. Students were especially. I should never use powerpoint. At the heart of the problem is that too many principals and School Board Members dont know or dont understand the limits the constitution places on their ability to control what students say while others simply disregard the law because they dont like it. As i worked on this book almost everybody i talked to inform only said i had a censorship story. Either from their own days in school or from their children. In the long time teachers incredulously told me that they had no idea that students have First Amendment rights and they asked me where i had come up with such a creative notion. So i have to begin by giving you a whirlwind tour of the First Amendment doctrine as it applies to students and then i will turn over to some stories that capture some of the particular contemporary dilemmas. The speech in the first and the First Amendment is very concise. It says Congress Shall make no law abridging the freedom of speech. As interpreted, this means that the government and anyone acting on behalf of the government government may not silence the speech because of its viewpoint. School districts and everyone that works for them from principles to teachers to School Bus Drivers are the government when we talk about the students freedom to speak. My research and comments today are limited to Public Schools because the First Amendment doesnt apply to independent schools rather secular or religious they are not the government. The Supreme Court took up the issue of the speech rights in 1943 and one of the earliest cases that actually upheld the speech rights of any individual. West virginia involved elementary School Students that were jehovahs witnesses who were at risk of expulsion and being sent to a juvenile reformatory because they refused to say the pledge of allegiance on the ground that it offended their religion but it was not litigated or interpreted as a religion case. The consequences today of speaking up and being punished can be dire. Many students enter the pipeline as a result of being suspended, expelled or sent to an alternative school for troubled students after they engage in protected speech. So just like the jehovahs witnesses in 1943, the consequences are stark. That held the people including younger students couldnt be forced to say what wasnt in their mind, a concept today we call the rule against compelled speech. The court emphasized the limits on the states course of powers that are exercised by village tyrants or by the federal government and it underscored that the First Amendment was designed to protect the nonconformist of all stripes. The court particularly focused on schools because the case involved two elementary schoolgirls. Because schools are educating the young for citizenship they must protect individual rights. If we are not to strangle the free mind at its source and to teach the youth to discount important principles of government as mere platitudes. Decades later the court returned to student speech and began to carve out a special way of claiming that the schools had illegally censored student expression. The first iconic Supreme Court case in modern times and hearing just listing the cases. I dont expect you to retain all of them. The first case tinker versus des moines decided in 1969 at the height of the vietnam war and they held a schools violated the First Amendment by suspending students with more black armbands to school to protest the war. The court took into account all the things that society expects fiscal two accomplish especially the importance of educating the young for citizenship and they crafted a special test that gave the schools more leeway to be streamed speech than the government has in the world at large. It announced that the schools couldnt censor the expression unless authorities had a reason to anticipate that the speech could lead to material disruption of the schools function or the rights of others and in short i will refer to this as a material disruption test. As the courts course became more conservative under every new chief justice it gradually carve out exceptions to the material disruption test in 3liter cases. These data schools more and more power to send her student speech but did not extinguish student speech rights. Two of the exceptions gave discretion to censor the student expression as lewd or that advocates the use of illegal substances which you may recognize as the bong hits for jesus case. The most important exception stands from hazelwood versus kohlmeier a decision that created a special category of speech the court labeled School Sponsored. If speech is School Sponsored, if it is treated as a school is speaking and the student is not even though the speech originates with the student in such places as High School Papers or literary magazine but also much further. To be School Sponsored the speech must appear in premature or in Justice Alitos words, to be the schools own speech so that a reasonable person would think that the school had approved it. This is all expression in the student performances from Extracurricular Activities and more. Stripping down the students of their voices. Schools try their best to avoid the material disruption standard because it is hard to satisfy. They claim all cursing is lewd and therefore can be punished even when students read aloud from classical literature or mutter to themselves thinking that no one can hear them. Some schools have even begun to assert that what students say in the classroom and within homework assignments handed him only to the and only to the teacher is School Sponsored expression, though no one in their right mind could think that the school had a chance to understand it and approve it before the students submitted or uttered it. This approach severely limits the range of the viewpoints in the classrooms especially since teachers in many jurisdictions are not allowed to disagree with the text that the school board selected and there are many disputes about what viewpoints should be part of the official curriculum. I wont go into them but think about the disputes to teach a subject in biology such as evolution and courses on sex ed and even American History into slavery. Let me briefly tell some Common Concerns with giving too much freedom in school. Recognizing students Constitutional Rights will not undermine education at all. Its going to undermine education or its going to put people at risk of their safety. Regarding the first concern, education, preserving the Schools Educational function is the essence of the material disruption test. So, disruption doesnt have to be tolerated. As the second, safety, schools may always crackdown on speech that is illegal outside of school like clear threats, and narrow constitutional standard, very hard to satisfy that also harassment and so forth and more important even speech that is protected outside of school by the constitution that threatens violence or serious disruption but doesnt rise to the level of each grave threat may always be silenced before it causes problems while officials contained the speaker and investigate whether there is cause for concern. So that is the taxonomy. The principal or other official has to first figure out what kind of speech this is. The students know that isnt used or School Sponsored and then within that taxonomy, collect the test because each one has a slightly different formulation. I understand that its hard for teachers and principals in the amendment when they are worried to try to understand the complex set of standards. They are also not adequately prepared to do that. It so i provide a a chart in the book and this is the one that can be ordered into order and placed in the Principals Office. What do i do now we do not leave do now we have a speech incident. Okay this will remind us the students over the speech i have to sign a design that could slow down. Then i have to understand something about what that means incomplete advice is at School Sponsored i need to slow down and i can censor it but only if i have a legitimate reason and fact someone finds it offensive or it might be controversial but its not a legitimate reason under the First Amendment but violence or inflammatory in some way i can censor and punish it at my discretion. [applause] so now how does this work lacks most of the speech at the core of the contemporary debate, texting, online speech bullying and racist expression of holes falls in the category of what i called pure student speech governed by the material disruption test. Let me begin with creative artists. She was a good student made during her lunch hour and posted in the corridor about 15 minutes later before any students had seen it they were on the cafeteria as the janitors saw it and got nervous and took her to the Principals Office. It says who killed my dog he was my best friend. Did you kill my dog . If you dont tell me who killed my dog i will kill you. She had taken the course during the summer that talked about conceptual design to capture fictional people. And in the Principals Office she explained this and the principal believed her but still said i have to suspend you for five days. Subsequently, the school board got involved and by School Boards decided that she should be suspended for 81. 5 days. The rest of her senior year and she couldnt return to school unless a psychologist examined her and confirmed that she was mentally fit to be in school. She sued and the court held that her rights have been violated and she was able to return and complete her senior year. They said once the principal interviewed her and understood what was going on, there was no reason to anticipate disruption especially because even if other students might have been upset had they seen the poster, nobody saw it. So there was no cause for concern at all. In a similar case involving a work of fiction, and the appellate judge reviewed his fellow panelists were for allowing the school to punish the writer. Today students will have to hide dog work and this lost their speech rights and if someone finds a there are disturbing they can be punished. School officials may now subordinate students freedom of expression to the policy of making high schools cozy places like Day Care Centers where no one may be the field to debate made them uncomfortable so that others have thought that all the art is of hearts and smiley faces. Succumb if you are wondering about the connection between my book which stops in the senior year of high school and some of what has been going on in todays College Campuses who think that their Comfort Level is more important than the express right on their peers, this is part of a connection that i see that i havent written about it but its part of the discussion john mentioned earlier. And this brings us to disparaging individuals. Many students have speech codes that are simply school rules that prohibit students from disparaging people based on categories like race, ethnicity, Sexual Identity and some go much further talking also about physical appearance but short people like me or something harder to measure. Students have even been prevented from expressing they use that undermined respect for a group even though they were actively aiming their comments at the group are acting to be disparaging and i opened by saying they should both sides of the debate and many have presented the chapters of the alliance. They resisted a lesson on intolerance on the national day of recognition. They said i dont accept, it is against my religion and the teacher told him to leave the room. There was no risk of disruption only of competing ideas. A federal judge later commented that the teacher had modeled oppression and intolerance. Other students agreed because when he left the room they asked why doesnt he have free speech . The question is whether the constitution permits the schools to regulate hurtful speech addressed at groups or individuals in school were out of school and the answer is the constitution doesnt permit that. The justice while she was still a law professor discussed the University Speech codes and concluded that even a narrow speech code into discriminatory harassment cannot survive constitutional scrutiny in the United States and Justice Alito pointed out theres no right to be protected from hurtful words. Free speech principles simply conflict with efforts to reduce the harm that disparaging speech can cause so this is the paradox under our constitution a liberal secular democracy that strives to inculcate tolerance in our citizens and more importantly perhaps a culture of a Mutual Respect rather than tolerating each other must respect the intolerance. That means the state cant use its powers to punish the speech that offends that goal but it doesnt leave any recourse. They can teach empathy and encourage peers to step up and support each other when someone is targeted with a hurtful stereotype and model the way for disagreeing. I would urge that respect for student speech rights provides a Training Ground for exercising the rights responsibly and four responding to hurtful speech with more and better speech as generally required and learning to have a substantive conflict about issues without going too far and cutting off conversation but i called learning liberty by living at so i will close with a third example which is the growing number of incidences which schools reach out and claim they can punish with students at offcampus usually online and off school property. As schools increasingly claimed the portraiture and punish what students say 24 7. Some have even hired retired Law Enforcement officers to track communication on their own computers from their own homes. Remember the rationale for giving more power than the government has in the world at large is a special environment and purpose of the schools on campus but schools say they can violate speech that is fully protected by the constitution outside of school if it violates the schools rules of decorum and they say if we do that its not the normal scrutiny of the First Amendment test. But fortunately they didnt come up with this idea on their own because agencies in the federal government and many state statutes but this responsibility on schools in areas such as bullying. Its likely to remain unsettled because the Supreme Court just last week denied the case in the School District in which all reviewed the Panel Decision and went further than any other Appellate Court in allowing schools to discipline a student for offcampus speech. This was with a good disciplinary record as all of the cases to record a rap song and posted it on youtube which she accused the coaches of the school of sexually harassing for girls who talked about the problem and no one ever argued in court or asserted outside of court but this was not true. No one said including the coaches that this had never happened. But the school said this is harassment of School Personnel which the code doesnt allow. This was for the conventions into the violence that and the violence that is always found in the wrath songs as indicated in the briefing to the court and the brief petition affirms the case they may not know that he hasnt actually ever killed anyone. This leaves the law very different in different parts of the country and at offcampus speech and in the law depends if you live in the texas or mississippi or if you live in washington, d. C. Or boston. The Staff Members are a very likely kind of speech to get a student in trouble. Schools dont like that. They reach out and have punishments. They were sent to the school for troubled kids even though it was his first offense. The students posted adolescent humor they were making the School Administrators complaining about the staff member and the teachers like i hate that freedom of speech exists for those who criticize authority and power. That is one that should be honored in our school systems. The states reach into the childs home in these cases and create and express conflict between what educators think and what parental liberty interest deciding how to raise their children and what is acceptable for the children to say and do and post from the home. Parents often punish the students not just the offcampus but the on campus the thick of the coercive discipline of the state off their childs permanent record because that can have a perfect impact on the childs life. I will tell you one more story. My last example. This was an oncampus inquisition into a private online conversation between two middle School Students from their homes in minnesota. The conversation had something to do with sex. They never learned its actual content. It was conducted on the internet, off School Grounds and outside of school hours. When the School Officials learned about it from the family of the boys that initiated the conversation, they went after the girl that responded to the invitation to talk about sex. And he pulled her out of class and opened her laptop and demanded her id and passwords for all of her accounts. They didnt call her mother. They interrogated her to the police present. They opened all her accounts. She was sobbing and they found a facebook sex quiz which she said i thought it was fun and funny and they come them her for doing this online quiz as well as her personal correspondence. It was a warrantless search without any grounds at all. And when the mother filed a lawsuit saying they had violated the first and Fourth Amendment rights even though they hadnt actually punish her, it became clear for the judge was going into the case settled for 70,000. The learned since this episode from the Supreme Court that the personal computers and phones hold everything that is in a persons mind. That wasnt as clear as the time, but its clear now. These intrusions into the expressions in the First Amendment teach young people the opposite lesson of the lesson the justice said we should be teaching. They teach students to dismiss as meaningless in the rights we tell them they have. They teach young people that theres no place to there is no place to hide from an authoritarian government whose officials are immune from criticism from the liberal democratic state. I look forward to the responses and questions. [applause] it recalled to me for the first time in many years in high school i got dragged to the Principals Office for as i recall, talking inappropriately during the reading of the lords prayer. Now, given at that point it was a Public School and the School Officials were involved in violating another part of the First Amendment, in retrospect it was my finest hour but it didnt really seem like that at the time. The first commentator has traveled from adelphia today to be with us for the buck and we thank her for that. She received her doctorate in political philosophy from Tel Aviv University. She was awarded two successes at Tel Aviv Universitys postdoctoral grants in 2001 to 2004. She was a Postdoctoral Research associate for human values at the university and she served on the joint palestinian israeli kennedy sponsored by the peace center working towards educational reform. A member of the Young Scholars forum at the center for the study of israel and participated in the womens faculty for him at Tel Aviv University and established the Postsecondary Education for learning disabilities. Her research focuses on citizenship education, aspects of educational and social policy and social effects of the war. Her areas of expertise include philosophy of education and political philosophy. Her books include citizenship under fire, Democratic Education in times of conflict in the 2006 and tough choices, structured paternalism and the landscape of choice both of which appeared at Princeton University press. Welcome to the Cato Institute for your first appearance. [applause] thank you sean and kathleen for the invitation for my first appearance of cato and for the opportunity to discuss this important book. Ive been studying Civic Education for quite a while up until now, and i mentioned two other things that informed my reading of the book is my current work with preparing teachers through teach for america and working with School Administrators where i try to impress upon them some of the key issues that relate to free speech in schools and other legal and social expectations that we have of practitioners in the field of education and that also mention im serving currently as the chair of the committee on open expression at the university of pennsylvania said definitely im and countering a lot of these matters in the college context. But today focusing on this book, i would like to raise twopoint. One, philosophical or principled point, and the other a more practical point. So, the first one, the book exposes the sometimes contradicting foundations on which we rest our expectations on the School Domain of educating for the democracy very broadly beyond free speech. Schools are expected to reflect and model democratic principles such as free speech, but given that they are working with different youth, they are also expected to control their students behaviors in ways that would be recognized as unconstitutional in other contexts. As we have a complicating demand in the starting point for a lot of the litigation that the book discusses. In various ways we expect the schools to operate in less than fully democratic ways. As a society or administrators see their jobs into sometimes the actual Legal Practices this wouldnt be acceptable but they are when we talk about children. If we focus for a moment on the speech as an expression of the core values that one hopes is just a subset of the speech and when it comes to children and particularly youth it is probably a smaller subset so we have a lot of what would be called worthless speech as you heard. Even if we think about it only in the context of the speech as expressing core values, schools are meant to reflect the reality in the society and thus to allow for the variety of the views to be heard and considered and this is not only to preserve the rights but also to sustain the school as a microcosm of the public sphere and that was vickis message i think coming from tinker. On the other hand if we think of it as a Training Ground for the democracy rather than as a microcosm of the democracy, then we accept the need to redirect and even silence speech. When the reasonably expected the school is more strongly guided including the speech rights and other rights, if we think that the students are further away from being ready to take on the civic full so the views of the school as the critic microcosms on the one hand with a Training Ground for the democracy on the other depends on our views, and of course more importantly the views of children and youth. Are there adults who should practice their civic role in a realistic a setting as possible or conversely, are they and i quote, those that need to be trained so that they can establish a social order . This offers a framework for the approach is pushing them in a different direction and informing the practice in a way that expects the speech right and in this sense it is placed in the former camp that sees children as Junior Citizens in the Junior Citizens in the schools reflections of the democratic public sphere and this is very close to the view that has a long history of course in american Public Schools and is obviously a very worthy and well established one but its worth noting both in the theory and in the practice of education, this view pretty much is considered to have lost to the other view so we seem to be to the more central vision as we see in the courts decision and in the examples of practice that the professor suggested and that i want to present and even more extreme version of the rights now so this leads me to the second comment, and this is the theoretical one now i have a more practical comment about the book. In the field of practice they are violated often been justified. In this book it is more than is legally justified. Even the schools have a uniquely important while in training the young people to assume that citizenship is crucial not only the scholars and professors of the wall that law but also the citizens of the more common practices as some of us havent regularly recited in schools even more. There are many newer practices in the schools and the schools that we should be aware of and concerned about to the extent we carry appreciative of student speech right to. The entire debate to the extent that it doesnt exist within the school. It is as a student speaks, the petitioner responds and then the court needs to decide whether infected should have in fact it should have been protected taking into account the content as we have seen in the context in which the speech took place further within the school or sometimes outside of the school. It was clear to me as i read the account of the view of the student speech right to more expensive to sustaining democratic values, principles and practices in the society cannot easily be realized in todays education policy environment. Most centrally concerned by the question can be active speech be protected should do that extend can we defend the students rights to speak independent of the content of their speech and the growing number of contemporary schools for the past two years mostly in the growing number of schools especially the low income and minority students they spent days, weeks and months without ever being allowed to use their voices area they are at the center of the activity and the students expected to follow the lead and respond when spoken to. In the rare case that it is permitted it is focused on the limited time of the teachers powerpoint most commonly at 45 seconds it goes up and you cant be limited to question such as how would you solve this equation or sometimes what would you my favorite example what would you do if you were malcolm x. And you get two minutes to discuss with your friends if they guided discussion and then they are listening to the teacher. Ic also numerous cases of speech in the context particularly when teachers are you amazing using to draw attention to make sure they are focusing so the teacher article smart at all the students would have to respond whatever it might be. Said he would get some kind of call and response if you dont participate in the response even if you were sitting quietly and not not being disruptive and listening to the teacher but that you didnt respond that the representative suspension. Outside of these that i just described to you, the rest is silence including the hallways most notably for me the lunch room. Speaking next to you is the privilege that has to be earned and the weeks can pass in kindergarten through 12th grade required. Students march the hallways single file with one hand covering her mouth so they remember not to speak. The use of ones voice including the whispering this is considered to be a violation of the code and it is met with an automatic response. The reason behind this is a reasonable belief that students must obtain a strong level of academic performance in order to succeed in life. And also the less this can only be achieved if they are moniker and limited to these extent and theres one in the book i want to read to you the shows the court aligning in the view and this is in the bong hits for jesus case. They read about the violence to justify the restricted Civil Liberties where the schools are failing so where we have lower performing schools, we have a stronger reasoning or justification to limit the students free speech right and other rights. Those that subvert and undermine or silence student speech rights. And as we see throughout this book, it is expressed in their effort to suppress the speech most notably by defining the various acts as unacceptable on the other hand the useful speech in required rights. I would encourage those of us that care about the rights to consider those increasingly common practices which may be harder to address in the framework but nonetheless stand in the way of a Democratic Education for citizenship and wouldnt be supported in the liberty framework that we just heard about it. To be clear i agree the Educational Opportunity are essential to the functioning democracy for reasons ive not elaborated here. We recognize it is like reading or math, citizenship is to learn by doing and the skills will not evolve as a side effect of maturity or attainment. It is essential for the democracy that aims to to the democratic principle and creating those that support the gradual and tangible requires focus on the protection of Democratic School environment in which the students free speech and other basic rights are properly recognized and celebrated. Thank you. [applause] the Cato Institute depends on the First Amendment and is a part of our strategy from the beginning. Its always part of the kind of outside status from 85, 95 and so on so we wanted to get people to come here and debate so it was essential to how we became a part of the national conversation. We always wanted to make sure that the things we added to the position were enunciated and defended and today professor ross i thought of as the cato advocates in the libertarian position on this we also do education here in the Education Access so i thought to include my colleague who does education here at cato. He is in fact the director of the center for educational freedom prior to arriving at cato he served in the u. S. Army. Maybe he would have some stories for us and the freelance reporter covering the municipal government and education in suburban new jersey. At the center he was a policy analyst for education reform and is the author of how the Big Government cripples and compromises the education and was to appear in all the publications. Hes been on cspan before, cnn, fox and the different radio programs. He holds an undergraduate degree from georgetown where he double majored in the government in english and and english and a masters degree in Political Science from Rutgers University and a phd from george mason. Welcome. [applause] thank you for writing this book. I think giving education policy all the time that threats to basic rights in Public Schools is not a subject that gets enough attention with all sorts of questions about what we teach and how we teach it and how kids interact with those that have been pushed aside the session over test scores. These are topics we need to talk about. I think there may be some collision between people that run the schools and the Public Transportation system in dc to try to keep people away from the event by closing down the convenient natural that we will see. [laughter] within the book i appreciate the discussion of the overreach. Ive done some work on the federal role in education but especially in the antibullying 2010 colleague letter and some of you in the audience asked me about this before the event so i hope you can talk about the letters but it is particularly striking you should mention the First Amendment in the footnote and only once and it seems that probably ought to come up a little more often when we are given directions for schools about how you deal with peoples speech. The First Amendment shouldnt get one mentioned on a footnote. I do have one particularly huge objection on page 273 and i want to quote it exactly. The conservative groups including the Cato Institute, in your book you talk about fighting words which is the kind of speech but that is not protected by the First Amendment. Its biggert. And i think that falls under the fighting words. [laughter] we are not going to call the police in this case but it is an important distinction. I think it is right that they are Government Entities to curb the basic expression thats clear in this book if you are not hearing that already read the book and you will be. But we also have to be clear about two things. These are concerns i have about the book. One, Public Schools are often talked about and that is thought of as the training places for us to work out our differences as you see places learning liberty by living liberty and the people tend to not look at schools that play thats why this topic doesnt come up that much. And second, it concerns me they use the term democracy and its not just your book is through any education discussion or debate and i will get into that a little bit about why i think the use of the term is problematic. Horace mann often called it the godfather of the common schools, no matter what name you give him he was probably the leading advocate for Public Schools in the 1830s and 1840s. He talked about not bring about Diverse People to work about their differences, but taking them sort of similar. People who held the same sort of elite views that he did. He talked talked about diffusing general intelligence to. It is really about implicating common morality and it was a, morality that he hoped was held by people like him. If you go, we will go to the progressive era, the turn of the 20th century as one more example. Edward was a very wellknown publicschool thinker and advocate. Again, i think he and a lot of people like him didnt necessarily see the schools as a place where you learn liberty. In fact, he said you should give up that we are all equal in our society is void of classes. This is the period of using iq tests to decide what your future is in a factory in for a small yours is in college, and so again it wasnt really oriented toward that Public Schools are where we learn to be citizens where we have equal rights like everyone else and we work out our differences ourselves. Certainly, some did want that. John dooley was much more in this mold, where where kids would come together from different backgrounds and they were there to live together and sort of a different view than this topdown notion that i think was more a driver of Public Schooling area this idea that we should sort have shape people to become of uniform. Again, the discussion and it seems to me even those goals even fifth, 673900 are about test scores. That i think is what many cases we have reduced education to be. Then talk about a little bit about the term democracy. This comes up a lot for me. Its report how we use it. Its often used interchangeably to mean a lot of things. It can mean Representative Government for some people it can be a leveling of people. People can say it as synonymous as individual liberty, sometimes it means rid majority rule, some way it means public controller public rule. The latter notion drives a, believe when we get beyond the test scores that Public Schools should respond to whatever the community wants. Usually it is whatever is being represented by the school board. That leads to a fundamental clash about what the schools do. The individual rights versus the community values. A lot of the sociologists say education is about social reproduction. This is how we shape students to be part of our community. Our society and that means they have to share values and not do things that concern us. I think you can see that it may be because nobody ever forgets so you remember that case, theres another when you go back to colonial era, theres another law no one has heard of but i think they never forget after a talent. As the first law for Public Schools was called the old dilute her satan act. So you could get jesus or satan in the name of the law think people remember it remember it. Ultimately, there is a fundamental problem especially if we talk about these controls especially it is inherently conflictual. Conflicts cannot be escaped. Now im going to do a shameless plug, not really, really that shameless, we run something called the Public Schooling battle. And i think its about to go up behind me. I never rely rely on my own ability to operate anything. So the reason it is here is it supposed to how many conflicts we have in Public Schools. This doesnt doesnt include will how do you keach multiplication or was the right day to start the school year, what hour do we start the school day. This is about values and identity based conflicts that we have in Public Schools. The reason it tends to be inherently conflictual is that we have Diverse People, their ideologically diverse, ethnically diverse, but they are all ultimately supporting one system and were trying to get the system to treat them or to educate them all. One one system cannot teach everything that everybody wants. So you can see a can be deceptive just to look at it. There is way more conflict than you see here. A lot of those little pens, if you are to pull out it would look less intense, no markers there, but there are a lot of places where there are people and as you talk about in the book what makes it into the media is not every conflict that we have, its sometimes the tip of the iceberg. But the point here is to illustrate that were constantly having conflicts over issues. The best best illustration may be if you think of Library Books on page one oh 101 schools can choose to buy any book they want or not by any book they want. For whatever reason. If if you get into the removal of the book, a parent says i dont think this appropriate in the middle School Library or i dont think it should be on my childs reading list, that becomes a constitutional issue. This censorship if you remove it. What we can see the problems, should the government be able to favor speech for whatever reason it wants. It deems this book is worthy of having kids were read it. This book in the speech is not worthy of being in the library. That is inherently conflictual. So so we have on the map just to illustrate the power of the map and userfriendliness, these are all the book banning reading material conflicts we have. Again, probably the tip of the iceberg but theyre about to 20 of these. And this is over maybe ten years. Starting ten years. Starting in 2005 some of them reach further back but its thinks that we see in the news. That is inherently conflictual. Is it unjust ultimately to compel support for those who do not choose to pay for like the chocolate were, that is one of the most challenged books. Or what about people say i dont think i should pay for, i dont think my children should have to read the adventures of huckleberry finn. How do you balance it with the people who say yes, these are very valuable books to read. Government one where the other is making the decision of what your reader what not to read. We can also talk about human origins, but inherently there is a problem, at least inequality. Inequality. If you teach evolution alone creationist feel like their second crest class citizens. You might says say his religious discrimination that they can have their viewpoint. But you add creationism and then youre objecting it and thats something we dont want government to do. So you dont want to treat these people equally. Ultimately i ultimately i think, just a few small critiques. While its important to protect speech and i think the professor is talked it but i think there is a good argument especially for teachers and people in the classroom every day for saying you have to have a lot of discipline. Even if it means people speech because it can be very difficult to teach where you need to teach and run a classroom if you dont have that. Even if someone is saying something that is a perfectly legitimate viewpoint you can have your 45 minutes evolve into a debate when when you need to cover other materials. And of course for testing purposes you always have to cover other material. Finally, i think there there is something important about shared norms and beliefs. Research by James Coleman and others have shown that private schools especially private schools may outperform Public Schools because ultimately everyone who goes to that School Access the schools norms and values and that cohesion they dont have to have in Public School ruled by law and regulation an often the muddling through where youre not really sure what to do and what policy to have or how to treat the student when we know it will make some people in the Community Angry and others wont like what i do if we dont punish the student. Private schooling everybody you agree what the handbook says and you enable the school to rung coherently and cohesively. It might lead to better academic outcomes. I dont want to say that this a slamdunk research but there is some research to show i think that in order to truly treat people equally, speech rights, religious rights etc. Is educational freedom. Ultimately attach money ultimately attach money to students not to specific schools. Give educators freedom to start the kind of schools they want, the the policies they want with the curriculum they want. Let those people really interact. So so someone who wants maximum expression rights in the school can choose a school like that. Someone who says i want to know excuses tough, disciplined maybe not even speaking in the cafeteria kind of atmosphere, they can choose that as well. But if youre not happy, if you say ive chosen a that doesnt have a strict anti bullying policy because i want maximum freedom but my child is getting bullied to the point i cant tolerate it you can also leave that school. As you point out the book that is the problem was Public Schools is that in a way you are a captive audience. This gives you the ability to escape. You could you schools for a number of reasons not just these policies. In that case government wouldnt decide on speech rights or religious rights, parents would make those decisions. They could even go elsewhere if they were unhappy. I think it is absolutely crucial to understand the threats to freedom of speech and have a minimized in Public Schools. I think the book does a terrific job of talking about the issues diving into him and talking about how to resolve them. Im going to put up the charts in my office. I think its even more important ultimately to move to a system which those kind of threats can be escaped by the people of the education system. Thank you. [applause]. Meals, reminded me of my old friend walter, which goes back to the 1950s, you might read it, you will not get the sense that it is a libertarian book. It is indeed a very different kind of approach to the First Amendment which you can call conservativism. That said it might be worth emphasizing at this moment that most of the conservatives, liberals are almost all of the conservative and liberal senate deed libertarians that i know think New York Times versus sullivan was rightly decided which is to say they dont believe that public figures should have heightened protection against liable and most in all three camps are frankly appalled of successful politicians suggest otherwise. On that note we should go to our questionandanswer period please raise your hand and wait to be called on. Wait for the microphones we can project this out to the world. And out your name and affiliation unless you think you have reasons to want to remain anonymous which i dont think anyone really does. Above all, please keep please keep your comments in the form of a question if possible. This gentleman here. Thank you. My name is brett heinz, im with american university. When i went to high school i went to a private, catholic high high school. The debates around free speech there dont quite match the same. I was wondering if a personal experience that ive had with censorship by administration how that would play out in Public Schools. I was the editor of the School Newspapers oped section. I was planning on publishing and editorial opposing the administrations position that it had taken and homosexuality. They demanded to review the article before publishing it. Ultimately they took several months with the review until i left the school, coincidentally. I suppose my question is that when it comes to School Sponsored speech, does the administration have the ability to review what students want to say and Something Like the Student Newspaper in a Public School . Absolutely. In in a Public School they would have, they could say we are reviewing everything before comes out, they can censor it by eliminating the article altogether, by forcing forcing you to rewrite it, by taking parts out and in fact the case that created this doctrine was about a School Newspaper that wanted to run actual new stories, not Opinion Pieces about teenage pregnancy and the school. Also about the impact of divorce on students. The principal essentially got rid of two pages of the newspaper because he wanted to get rid of those two articles at the last minute and the court said that was okay. It went further than the School Newspapers. While yours was labeled an opinion piece they might say that either this was not a topic that was appropriate for a School Sponsored newspaper or that the viewpoint was so provocative within the community that like i said earlier they cant really say theyre going to send sir it because its controversial. But its too difficult for some of the younger students to handle. They would find some pedagogical reason where schools go wrong is they have gotten lazy, they often dont even bother to come up with the recent. Reason. They just say i cant publish it. Then they will lose. But if they try they can usually come up with something. Thats a sadness. Im actually going the end of this week to talk to the annual meeting of the Columbia Scholastic Journalism Association which is the meeting of all of the high School Students who run student publications and their advisors. I will probably have similar stories after that meeting. The woman in the center in the back row. I am sarah from american university. My question for you is what this does seem to be a general problem across the United States, do you think it should be addressed nationally or in individual communities . That is a traffic question. As neil indicated local control is an important part of our educational System School board, local superintendents as far as i am able to grasp, the newly crafted law that we place no child left behind, the federal government is stepping back from giving the kind of guidance they have been giving for the last ten years. But the constitutional law is federal law. So we really have to have an interplay between an understanding of First Amendment law interpreted by federal courts and what communities do on the ground. One of of the recommendations i make in my book is just because the First Amendment allows schools to engage in certain kinds of censorship or to place certain inhibitions uncertain speech does not mean that School Districts have to use those powers. So one thing that people who believe in a model of education that emphasizes learning how to be citizens in an active way might do is run for school board or go until the school board that we would like to be a community in which the school does not limit student speech that is not disruptive even though you have the power to do that. We would like to send a different message in this environment. Usually the people who talk up about speech and the local community are those who would like more censorship rather than less until there is an incident once there is a censorship incidents, quite understandably principals and School Boards tend to dig in their heels rather than reconsider their policy. I suggest suggest this is a good conversation to have before play has been canceled or some other issue has arisen. More questions down here to the right. I am michael from washington, dc. Im wondering if any of the courts have considered the possibility that educators would be doing well to solicit provocative speech rather than just allow it . I love that idea. But i have never seen a court say it and i dont know, have you ever seen a possible say . Ive seen some administrators who profess to encourage controversy speech. There is actually a very interesting study that was published in a book called controversy in the classroom they actually showed their set of cases in which Classroom Teachers are using controversial topics and controversy opinions as a pedagogical vehicles for developing capacity or for sometimes writing, learning how to rights or for speech and debate purposes. That in the regular classroom not at the club. It is it basically theyre showing that generally speaking, get this is a very large study they did over five years with thousands of students that they later also followed up with after they graduated to see the extent to which they remain active citizens the extent to which they vote and they do show that when you encourage and also modeled controversial speech in the classroom, for example when you live in a community where most people for example are very strong advocates of the strong Second Amendment and you come in even if it is not your view as a teacher but you come in and say here is why we should have very strict gun control regulation. Or the opposite. Then basically your capacity to encourage students to develop Critical Thinking skills and all of these other capacities that allow you to be good, active educated citizen are really strengthened by this. So you do see the practice by teachers and administrators, i wont say this is the mainstream. I would just add that i think that schools and educators tend to avoid controversy issues quite apart from the First Amendment question because often the school, sometimes a school has again a Diverse Community that it is working with her there just tried to avoid conflicts that might give them a hard time. There is work by two scientists and it came out a few years ago now they have got done subsequent work that survey biology teachers. They found about 60 some some of biology teachers softpedal ablution or dont teach it at all mainly because theyre trying to avoid getting anybody angry. A lot of avoiding controversy isnt even about First Amendment it just makes your life easier not to aggravate people. Teachers can also lose their jobs if parents get angry enough and even if they have tenure and if they stray from the viewpoint in the curriculum that the school board has chosen they can get into a lot of trouble. The gentleman over there. Im david, some years ago i worked for the Michigan State legislator and i worked on a bill to protect the rights of Public School students and publishing newspapers. There are plenty of sources of rights for students beside the u. S. Constitution. Each state has its own constitution in each state can pass state wave laws. So i would like to know, has that happened have state courts relied on have a past statutes to protect students right. Terrific question. A number of states have enacted higher protections for student speech rights that are currently found in the federal doctrine from the courts. California basically says the material destruction standard applies to every kind of student speech in k12 regardless of the Supreme Court precedents. They also a few years ago passed a law protecting the advisor of high school education, going back to your question about fighting the rights of a journalist the statute says they cannot be discharged that. There are number of organizations that are actively working to try to get more states to pass more protective laws for student journalists. A number of states came close to doing it but experience to be toes from governors. One case involved students in a suburb of chicago had a very Good High School and awardwinning newspaper that discovered that the staff of the School District had gone on junkets and they dug out the travel receipts and showed that they stayed more days in the hotel than the meeting went on and they were not allowed to publish it in the School Newspaper, but the Chicago Tribune found that it met all of the standards for journalist investigations and published it, after that the illinois legislator past a student writes statute to cover student journalists and the government vetoed it. Pay shameful. But that is another place going back to whether its a local or national problem, its both. The gentleman right here. Thank you. Im asking the question as my capacity of a High School Basketball coach in fairfax county. Im wondering if your scholarship touches on this issue ive been following a case that is progressing now and theres a football coach in the state of washington who over the course of his career had at the end of games that go onto the center of the field to play by himself. Apparently it didnt raise the problem, some of the kids on the team then said coach, what are you doing . Well im praying. Can we join you . Of course, its a free country. Whenever. Whenever people say that its always wrong. So as more and more people joined him for the prayer he then was suspended. I think that case is ongoing. Im. Im wondering if any of your scholarship and research talks about that issue. I think it only became a problem when when students came voluntarily to pray with him. Yes, the last chapter of my book focuses in large part on religious expression by students. One of the problems in this area is that next to the dr. And governing student speech with many throughout their hands and say this is too confusing for me i dont how to use it, which they do preside over very difficult cases but trying to make it clearer. Next to that the condition of the establishment clause is an enormous disarray because the Supreme Court has basically not relied on a certain old set of doctrine and hasnt really replaced it with anything else, so individual justices have their own approaches that the lower courts dont have much guidance. So teachers and principals are confused about what amounts to an establishment clause violation. How does it relate to free speech for students. They too often think that us if students if they pray over sandwich they bring from home not even trying to get others to join and that the school be accused of a violation for allowing this to take place. That is clearly not true. The Supreme Court has repeatedly said that students have the right to pray in school, again as long as they are not disrupting class. And to express, through speech their religious viewpoints to each other the problem is when you have a teacher encouraging people then we have a question about is participation really voluntary. The laws pretty this should be from the students themselves. Very different if a group of students say weve noticed the coaches been praying in the middle of the field and we would like to do that too. Do they do it separately, do they join the coach . When the coach says team members who lives on pretty much in charge of and im a pretty important Authority Figure to you, that is a closer question. Certainly if you said were going to do this as a team thats forbidden. The gentleman in the center that will have a couple more and then have to wrap up. Im jacob marks with