HLS Library Book Talk | Catherine J. Ross’ ‘Lessons in Censorship’

HLS Library Book Talk | Catherine J. Ross’ ‘Lessons in Censorship’


JUNE CASEY: Welcome. My name is June Casey. And I welcome you
here to our first book talk for the spring semester. We are here to celebrate
Lessons in Censorship– How Schools and Courts Subvert
Students’ First Amendment Rights, published recently by
the Harvard University Press, and also awarded the
honor of being the best book on the First
Amendment of 2015 by the First Amendment News
and Concurring Opinions. We are here to honor this book. And we have author Professor
Catherine Ross with us today. Professor Ross is visiting
scholar in education at the Harvard Graduate
School of Education, and also is professor of law at
George Washington University. Joining Professor Ross we
have our Harvard Law School panelists, Professor
Mark Tushnet, who is the William Nelson
Cromwell Professor of Law. We have visiting Professor
Paul Horowitz who is Gordon Rosen Professor of
Law at the University of Alabama School of Law. And we also have clinical
professor of law Michael Gregory, where he teaches law as
part of the Trauma and Learning Policy Initiative. I also want to let you know if
you have friends who were not able to make it to
today’s book talk, that Professor Ross will also
be speaking at the Harvard bookstore on Friday
the 26th at 3 PM also about Lessons in Censorship. For those of you who
will be asking questions at the end of our
book talk, I also want to let you know
that today’s session is going to be recorded. And if you would like
to rewatch the talk, we release the talks on
YouTube about two weeks out after today’s event. Also, before we
get started, I just wanted to let you know that we
are joined today by the Harvard Coop who was in the back of the
room selling copies of Lessons in Censorship for you. So again, thank you
for joining us today. And Professor Ross, I
will hand it over to you. CATHERINE ROSS: Thank you
so much June for inviting me and for your gracious
introduction. It’s really a
pleasure to be here. And I thank all
of you for coming. I also want to mention my
editor at Harvard Press Mike Aronson, who has amazingly not
heard enough about this book yet and is here with us today. And thank you to
Mark, Mike, and Paul for participating in this panel. In keeping with
what I understand to be the norms of
these occasions, I’m not going to give
a formal prepared talk. But I rather want to just share
some thoughts about my book, and give you some
signposts for those who have not yet read
it, which I assume is almost everybody in the room. So why did I write the book? As one example,
Guido Calabresi, who is no intellectual
shrinking violet has implied that school speech
doctrine is as hazardous as Ulysses journey between
Scylla and Charybdis, referring to unsettled
waters rife with rocky shoals and uncertain currents. He suggests, along with Justice
Breyer and many other lower court judges, that
the doctrine has become so difficult
to understand and so convoluted that it
fails to perform its guidance function. In what might appear to be a
perfect illustration of Mark Tushnet’s comments
on the complexities that result from the
doctrinal of free speech, that the doctrine essentially
sinks of its own weight. I began my book in response
to this widespread confusion and to tackle what I
saw as rampant disregard of constitutional rights,
disregard both at the ground level, what the schools
were actually doing, and in many lower
court decisions. So what kind of speech
am I talking about? Censorship cuts across every
political, philosophical, and values system. Students express
their views on matters of public concern like
civil rights, war and peace, both sides of the
debate over abortion and the rights of
LGBTs, they proselytize, they support and condemn
candidates for public office. All of these are at the
apex of valuable speech, and yet schools have
silenced all of them out of ignorance, indifference,
and/or disdain for the law. Like the rest of
us, students also have what the court
has called the freedom to speak foolishly and without
moderation, as witnessed in expression many adults
condemn, like verbal bullying without violence, sexting, and
speech disparaging minority groups, as well as
adolescent humor beyond adult comprehension. As I thought about
this array of problems, I had several goals in mind. The first was to analyze and
clarify the existing law, providing guidance on what
the doctrine actually means, and identifying
the many subsidiary questions the Supreme Court
is unlikely ever to answer. For each kind of student speech
I set out what the law is, where it remains unclear, and
in many or most instances I try to suggest ways of better
protecting student rights within the existing framework,
which brings me to my second goal, which is to propose
a coherent and easily understandable approach that
rests on existing doctrine– in other words doesn’t
totally discard it– and that protects
student expression without disrupting education. I’ve set out my
intellectual motives. So let me summarize three themes
that run through the book. First, the continuing
culture wars that play out in schools, which
have at their core disputes both over the balance between
authority and individual rights, and reflect
profound divisions in the values that
children learn at home, which have
their own source of constitutional protection. Second, over the
last half century each chief justice’s court took
up one student’s speech case resulting in the
continued diminution of speech rights for
students over time as the court became
more conservative. No surprise to most
of you in this room, but important to
explain to other readers who are not lawyers, and
to some lawyers as well. Third, the school’s
abdication of its role that has been played
since the early republic in fostering democracy. The failure to model speech
rights by honoring them, and to show that the state means
what it says about liberty, imperils participatory
democracy and promotes the acceptance of the notion
that the state is all powerful. The perception that the
state is all powerful has been enhanced
over the last decade as schools
increasingly reach out to punish speech that takes
place off campus and online, and over which I
argue the school has no jurisdiction at all. So why does all this matter? The First Amendment protects
controversial, offensive, and disputative speech. And by censoring and
punishing protected speech, I argue, the schools
not only violate the rights of
individual students, they undermine our
constitutional norms. Schools are our best chance
to inculcate citizens in what the Constitution
means and why we have to respect each other’s rights. About 90% of American
children today still go to public school. But as one student
told a reporter, my school is all
about censorship. The first two
chapters of my book situate the quintet
of Supreme Court cases on student speech in the
framework of First Amendment jurisprudence as it existed
when each student’s speech case was decided. And this is important,
because student rights were not an afterthought to
the doctrine of free speech. This is clear from Justice
Jackson’s 1943 opinion in West Virginia versus Barnett. Barnett was one of the
court’s earliest statements about why First Amendment
freedoms matter, and what they mean to appear
in a majority opinion that actually held for the speaker. The opinion set out a number of
principles key to my project. And here I’m just cherry picking
what I need to tell you today. The court ruled that the
speech clause applies to public school students. The successful petitioners,
Jehovah’s Witnesses at risk of expulsion and
delinquency proceedings because they refused to say
the Pledge of Allegiance, were elementary school students. The Barnett court made
clear that its holding rested on limits to
the state’s authority, was based in the speech clause,
not the religion clauses, and applied to
all nonconformists regardless of the
source of their beliefs. And finally, the
court said if there were a hierarchy of
speakers and their rights, which there is not,
the rights of students should be at the highest level. Here Justice Jackson was
at his most eloquent. “That boards of education
are educating the young for citizenship is reason
for scrupulous protection of the individual. If we are not to strangle
the free mind at its source, and teach youth to discount
important principles of government as
mere platitudes.” Several decades
later, the court began to carve out a special
approach to student speech. And for those of you who
may not be familiar with it, I will give a simple, really
oversimplified overview of the jurisprudence
that governs speech in public schools K through 12. And that was set
forth starting in 1969 in Tinker versus Des Moines. And professor field was
Justice Fortas’s clerk when he authored the
opinion for the Court. So we have really quite
an amazing audience today. The doctrine set out in
Justice Fortas’s opinion– and I note he also
authored In re Gault, which transformed the juvenile justice
system for the modern world. And he set out a unique test for
assessing the constitutionality of school censorship in light
of the special characteristics of the school
environment, including the school’s uniquely
important role in training young
people to assume the mantle of citizenship. In Tinker, students and
challenged their suspension for wearing black armbands
to protest the Vietnam War. And they won. The court ruled
the school district had violated their rights
and crafted a new rule. Schools may not
restrict students speech, unless officials can
show they reasonably anticipate that the expression will
materially disrupt education, or collide with the
rights of others. The essence of Tinker answers
the most serious criticisms that have been
levied against it, because Tinker means that
the school always has the right to silence
speech that it fears will lead to violence, or
even to the level of disorder that will make it impossible
to conduct classes and continue the school’s
educational mission. Though it never
overruled Tinker, the court gradually
carved out exceptions to this material
disruption test. The three exceptions created
a taxonomy of speech rights that remains in place today. The most important
exception, in terms of the number of cases reached
and the scope of speech silenced, is that if the speech
appears to bear the school’s imprimatur, and
if it takes place in activity related to the
curriculum, which includes almost every school
publication and most extracurricular activities,
it’s characterized as school sponsored. In other words,
what Justice Alito called the school’s own speech. It ceases to be understood
as the student’s speech, even though it emanates
from the student. And schools may
regulate this speech for any legitimate
pedagogical reason under Hazelwood v Kuhlmeier. There are two more exceptions
that affect many fewer cases. Under Bethel v Fraser the
school may restrict lewd speech as part of their civilizing
function entirely at their discretion. And finally, in the most recent
case, Frederick versus Morse, which you may know is the bong
hits for Jesus banner case, the court held that schools
may censor speech that appeared to advocate the use of illegal
substances with the caveat that, Justice Breyer who
provided the fifth vote said schools cannot censor
political speech under this standard. So this taxonomy
continues to govern when schools may
permissibly silent students speech through either prior
restraint or penalties imposed after the fact. And the penalties
can be very serious, ranging from short
term suspension to expulsion for the
rest of the school year, to assignment
to alternative schools for seriously
disturbed students. And these penalties are
well-known to often lead young people to embark on the
school to prison pipeline. But Tinker continues to govern
what I call pure student speech, personal expression
that does not trigger one of the other exceptions. So this categorization
matters enormously, because it determines
the standard of review if the student brings a lawsuit. And of course, most
students don’t, because the
disincentives to doing so are profound, and
therefore also determines whether the school
or the student is going to win
in most instances. So how do the courts
actually use these standards? And how do the
schools regard them? Well, educators have
pushed the boundaries of every case that gives them
more discretion than Tinker to colonize other
forms of speech. So for example, although Fraser
is properly limited to speech with sexual overtones,
schools argue that it allows them to punish
all manner of impudence, cursing, and words that
offend social norms, including all criticisms
levied at teachers. Now to briefly address
only the last– and I’m glad some of you
laughed, because it is risible. Criticism of authority is
not only a characteristic of adolescence. It’s an essential aspect
of democratic citizenship, whether directed to a president,
a team’s coach, a teacher, or a school principal. With respect to Hazelwood,
schools increasingly claim that a
student’s own comments in classroom discussion
and in assignments handed in only to the teacher are
school sponsored speech, even though this expression
could not possibly satisfy any reasonable
observer’s idea that it has the schools imprimatur. Nobody knew what the
student was going to say. The school couldn’t
have approved it. This development poses
a very serious risk to intellectual inquiry, because
teachers in most circuits are not allowed to
provide alternatives to the approved curriculum. Think of biology classes
and sex ed classes, as well as American
history classes. And so that restriction
on teachers’ speech rights in high schools
and elementary schools leaves students
as the sole source of intellectual dissent in many
of the nation’s classrooms. Finally in the last
section of my book, I delve deeper into
Tinker, explicating the meaning of disruption
and of the rights of others, which I demonstrate
never stands on its own to justify censorship. And applying its doctrine
to several pressing contemporary speech
problems, demonstrating Tinker’s continued
vitality and relevance. Before turning this discussion
over to the commentators, I just wanted to say a few words
about one contemporary problem, which has become even more
central to public debate since I completed my
manuscript about 14 months ago, the question of whether the
Constitution permits schools to regulate hurtful
speech addressed to groups or individuals. And here is the
crowning paradox. Does a liberal
secular democracy that strives to inculcate tolerance
and mutual respect have to tolerate the
expression of intolerance? Under our constitution
the answer is yes. I’ll use racial slurs and
the frequently litigated personal display of
the Confederate flag as an example of the
context based analysis that Tinker requires. And I suspect Paul will
have something to say about context based analysis. A particular school may
not bar racist speech unless that school
and that community have a history of disruption
based on racial conflict, because such a history
supports the school’s claim that it anticipates a
risk of material disruption. But schools that have a history
of amicable race relationships must permit the personal
display of symbols like the Confederate
flag, and even the use of offensive words. When Justice Kagan was a
law professor considering the constitutionality
of hate speech codes in universities she
wrote, a reasonable system of First Amendment law would
allow an exceedingly narrow speech code aimed at
discriminatory harassment, but it can’t survive
constitutional analysis in the US. No matter how well
intentioned school hate speech codes must
be limited to speech that would violate either civil
or criminal harassment codes if they’re to avoid
trampling on speech rights. Justice Alito may have
gone even further when he sat on the Third
Circuit pointing out, there’s no right to be
protected from hurtful words, because there’s a real tension
between anti-harassment laws and freedom of expression. Moreover, school
officials confronted with group disparagement
have too often turned First Amendment
doctrine on its head revealing an extreme heckler’s
veto problem. Schools have
removed the speakers whose ideas offend a group
rather than protecting the speaker from the mob. Now they say they’re
doing it to protect the speaker from violence, but
there are many other things they could try first. Removal is not
always short term. In one case, the student
who actually just repeated a comment he had heard
from somebody else, not approving it, was
suspended for the entire year. And the next year had to
move to a distant state. This violates the speaker’s
expressive rights. And it wrongly gives
listeners the power to censor, a situation at odds
with every building block of our speech clause. So paternalistic
authorities in schools too often convey
to their students that they can expect to be
sheltered from wounding words. And these experiences may
influence the expectations that underlie some of
the current demands to constrain offensive
but protected expression on college campuses. And I’ll be happy
to talk about that during the question period. Thank you. PAUL HOROWITZ:
Thank you so much. I’m delighted everybody is here. I’m thrilled to be here myself. I should say I’m a– through odd
circumstances I ended up taking an evidence course
with Professor Ross, after being a student when
I was a practicing lawyer. And given her suggesting
that I speak about context, it’s clear that students
should be aware of this even after you graduate. Your professors are
still calling on you. So be warned. This is a wonderful book. I’ve been thrilled
to spend time with it over the last few weeks. And I think it’s signal
virtue, there are many, but it’s signal
virtue is its clarity. And if you come through
the book without the sense that there is a clear
scheme or plan in mind, it’s not her doing. The lack of clarity
must lie elsewhere. And I think maybe
importantly so, and that’s kind of
what my little musing today will be about. So at the beginning of the
book, and at the beginning of her discussion,
Professor Ross relates three dramatic
stories that she says run through the book. The first, the entanglement
of law and culture wars playing out in the schools. The second, divisions
on the Supreme Court over jurisprudence, over
First Amendment jurisprudence, about education
and public schools. And the third, the
frequent failure of schools to perform the
critical function of fostering the free exchange of ideas
so essential to preserving a vital democracy. In reading the book– and
we all for many reasons like to knock around the court’s
doctrine and the problems it causes. But in reading the
book, my ultimate sense is that number two,
the second factor, doesn’t actually
right now have as much to do with the
problems in this area as the first and third
factors, the culture war factor and the
failure of schools to perform this
function of fostering the free exchange
of ideas that we see as core to vital democracy,
citizenship, and so on. If the relationship
between those two, I think, that is
causing the uncertainty, and that I think will
continue for some time. Well, let’s describe
that idea of democracy and how it functions. So first we could look
at the classic quote by Justice Jackson
in the Barnett case. “If there is any fixed
star in our constitutional constellation, it is that
no official, high or petty, can prescribe what shall
be orthodox in politics, nationalism, religion, or
other matters of opinion, or force citizens
to confess by word or act their faith therein.” So there’s a core
first amendment vision, still important, valuably
criticized and explored by my friend Stephen Smith
in a wonderful article called “Barnett’s Big Blunder”–
but still an important value. And to that we
might add the words of Justice Brandeis concurring
in the case of Whitney versus California. And there, in a
remarkable passage, he talks about the
value of civic courage, not just the importance
of free speech for the subjects raised,
or for its contribution to truth seeking, but because
engaging in vigorous speech and counter speech
is itself formative of the kinds of virtues that
we want, and perhaps require of individual citizens
in a democratic republic. We can imagine two kinds of
departures from this ideal. One is, roughly
speaking, on the right. You can imagine individual
schools, individual school districts, where there
is an orthodoxy, perhaps a patriotic orthodoxy, perhaps
a religious orthodoxy, perhaps a conservative
orthodoxy, or maybe a particularly stringent and
traditionalist sense of what civility demands and one that
ends up having implications for students trying to raise
new issues, express identities, or ideas that have not
previously been expressed. Maybe it’s a
function of the fact that I spend most of my time
in universities rather than in particular counties that are
isolated from legal enforcement in some ways. Many of my students
at Alabama have had that kind of experience. But I guess I see
these as outlier cases, not in the sense that they might
not be numerous and important, but in the sense
that I don’t think they’re driving a mainstream
discussion about changing or revising that
idea of orthodoxy. Then we can imagine something
like, roughly speaking, a left critique of this
kind of vision of orthodoxy, or civic courage, or virtue. That, I think, is
relevant, is in the mix, and in the discussion right now. And I’m not criticizing it. I have my concerns about it. But my point is
just to describe why people might be hesitant about
the virtues of the Tinker approach, or of the
values that underlie it. We might think
that in order to be an incubator of civic
virtue, public schools need to provide the
preconditions for exercising civic virtue later in life. And that includes safety,
security, freedom from harm, or harm to dignity, all of
which people might argue are going to be developmentally
harmful, as well as injurious. We can imagine questions
about civic courage. And I think they have been
raised, and intelligently raised, in the sense that one
might worry that demanding civic courage of
individual citizens ends up having a
disparate impact, where the burden of shouldering
that view of civic courage is going to fall on those who
are already most vulnerable, most subject to harm. Now there happens
to be, I think, a tremendous countervailing
benefit in learning the values of civic
courage, but still we should not discount that idea. Broadened definitions of harm– another way in which
we might, again, question the model of
fostering civic virtue or incubating civic virtue,
particularly one that is linked to the idea
of individual dignity. And finally, arguments
about what and when speech should be attributed
to the government rather than to
private individuals– so to the extent that you take
the view that the public school is in part an
environment, not a home, but a home away from home,
and then to the extent that you have that kind of
vigorous, possibly insulting speech in the schools. I think some now
increasingly would argue that the school ought
to be responsible for it, and that the failure
to address it is itself something that should
be attributed to the school. So I think, in
short, that these we can all think of as culture
war issues, in a sense. But to say so is
not to deride them. And it seems that
these are strongly linked to broader debates about
what citizenship requires, about what the environment for
the exercise of civic virtue should be, and about
how we understand some of the background assumptions
about the individuals who engage in the speech and
the extent to which they should be helped, succored,
preserved, protected, and so on. So ultimately reading
the book makes me think a lot about, obviously,
the current campus conflicts. And I wanted to suggest
that one way we might think about the book and maybe
about what’s going on in public schools
right now is that they can serve as a kind of a
natural experiment, a laboratory in thinking about
what a thicker more– again, I don’t mean derisively,
more safety oriented, more community
oriented perspective on some of these issues
about citizenship and what is needed to
develop and protect that, what that vision looks like when
it plays out through the law. I think there’s plenty of
reason in Professor Ross’s book to be concerned, to say
that there are going to be real issues, problems
if we take that vision and that the public
schools, which in a sense have already taken that further
step because they already have a different protective role
and a more vulnerable audience. And that’s recognized in law. The public schools
have not always administered that thicker
vision consistently, fairly, effectively, and that there
have been costs to the larger vision of civic courage. But I also came away ultimately,
and this is my last remark, with renewed and to me maybe
somewhat surprising respect for– and here thinking about campuses
rather than public schools, for administrators, for
university administrators, sometimes criticized
from either conservative or civil libertarian perspective
for giving in too much. But in reading through the
book and thinking about it and seeing the travails of the
public school administrators, one may have a greater sense of
respect for both the difficulty they have in navigating
an environment where the very idea of citizenship
is under contestation, and it’s requirements, and
trying to work together, make positive value
statements, while perhaps trying to preserve some of
the important ground norms and rules of free speech in
the university environment. So it was food for
thought in that sense. MICHAEL GREGORY: Good
afternoon, everybody. I just have a few
slides to illustrate a couple of the ideas
that I want to talk about. So please indulge me in that. I want to begin by thanking
Professor Ross for her work and for sharing
it with us today. I teach education law and
policy here at the law school. And so in that
context talk a lot about the role of
public education in our democratic society,
and believe strongly, in line with Justice
Jackson, as you reminded us, that the central
purpose of schools is to prepare us to
participate effectively in the democratic process. So I find exceedingly valuable
Professor Ross’s analysis of how educators’ typical
responses to students speech often teach implicit
lessons that undermine the vigor of
the First Amendment, and in doing this
threaten to fray one of the most
important threads in the fabric of our democracy. So thank you very much for
undertaking this project. My own work involves
teaching law students to represent
families of students with disabilities in the
special education system, and also teaching
them the skills of a legislative
lawyering as they advocate for laws
and policies that promote safe and supportive
school environments. So the aspect of today’s
problem, the subversion of students’ First
Amendment rights that I encounter
most in my work is what Professor Ross
calls words that harm, or hurtful speech,
bullying, harassment. She devotes a chapter
of her book to analyzing the problem of hurtful
speech, and whether, and when, and how it infringes on
the rights of others, and/or materially disrupts
the educational process. Now sometimes my clients are
the targets of hurtful speech. Sometimes they are the speakers. Often they’re both. And all of the educators
I work with are highly concerned about how to
prevent harm to their students without censoring
their speech, and what to do about that
speech when it is uttered in the
school environment. So I’ll focus my brief remarks
on this particular problem, which is just one of the many
problems, as you’ve heard, that Professor Ross
tackles in her book. I’ll also pick up the
suggestion of Professor Horowitz to talk a little bit about
the community and safety orientation as a
vision of schools. I think you’ll see that
the ideas I want to see are very much in that vein. So I want to briefly
explain why I find Professor Ross’s
argument, which is that quote, the
rights of others rubric alone never provides
a sufficient rationale for censoring students speech,
no matter how unpleasant, and that censorship
is justified, quote, “only when accompanied
by a reasonable apprehension of material disorder,” is
a helpful argument, not only for preserving students’
constitutional speech rights, but also for helping
educators minimize hurtful speech in schools. So to show you why I find
your argument helpful, I’m going to discuss
three main ideas. Those are, first, that bullying
is the symptom of a culture. It’s not primarily
just the actions of an individual student. Secondly, learning
requires safety. And finally, it’s not
about the response. If what we want to do is
prevent hurtful speech, it’s not the response
where we should be focusing all of our attention. So to illustrate the
first of these ideas, that bullying is the
symptom of a culture, and not the actions
of an individual, I’m going to share a metaphor,
an example really, it’s not a metaphor,
from another context that’s outside of law
and outside of schools. In fact, it’s football. So as a New England
Patriots fan I was, of course, overwhelmingly
pleased with the outcome of last year’s Super Bowl. And for those of you that are
football fans you know what happened at the end of that
Super Bowl, which is that there was in the waning seconds
when the opposing team was on the goal line and just about
to score this heroic play, that Malcolm Butler did,
he intercepted a pass. And in doing so
secured the victory for the Patriots, their
fourth Super Bowl. It was amazing. Now in analyzing that play,
what the commentary initially focused on was the sheer
athleticism and brilliance of the player who
made the interception. And without a doubt, it was an
amazing display of athleticism. But as the commentary
continued, and for those of us who obsessively watched
every single thing we could about the analysis
of the game, it became clear that the team had
practiced that very play over and over again in
practice, leading up to the championship game. And so it wasn’t just
that the player was brilliant in the moment,
but his team, his coaches, had prepared him to intercept
that ball on that play. When you step back
even further, what do you understand is
that the Patriots have a culture about the way
they prepare for games. Their coaches have
them practice what they call situational football. It’s taking those
circumstances where the players are going to have
to react quickly, where they’re not going to be able to stop and
analyze and really understand what to do, they’re going to
practice those situations over and over again in practice. And when you step back
even further what you see is that it takes a
certain kind of player to do well in that
kind of system. It takes players who aren’t
just physically strong and have athletic
prowess, but that have some intelligence, that
have some cognitive ability to prepare in that way. So when you step
back what you see is that it’s really not
just about that play that took milliseconds at
the end of a game. But the reason that
play could happen was because there was a whole
culture that preceded it and that produced in concert
with the individual actions of the player that result. Well this is the same way that
we need to look at bullying, or really anything that
happens in a school. There’s a culture that precedes
any hurtful speech that occurs in a school,
that precedes any incident between two
students or groups of students. And if we want to
prevent bullying, we need to look not just at
the individual interactions, but we need to look
at the culture that precedes and surrounds it. And I was going to show
a clip of the Super Bowl, but we don’t have time, and
I won’t subject you to that. Let’s just get on to the
second idea, which is that learning requires safety. So since the days when
Tinker was decided we’ve had advances in
neurobiological and even epigenetic research
that helps, I think, us expand the concept
of what a material disruption would be or could be. The speech we should
be concerned about is not just speech that
interferes with the adults’ ability to maintain the orderly
functioning of the school day, which is probably
something closer to what the Tinker court had in mind. It’s not just about keeping
the trains running on time. We must be concerned
about speech that makes students’ brains
less available for learning, because it triggers the
fight, flight, or freeze response in their bodies. Speech that activates
their reptilian brains, their amygdalas
and their limbic systems, and deactivates the
parts of their brain necessary for academic
and social learning, their frontal cortex. In short, science now explains
to us that when students are in danger, whether
that’s real or perceived, when they are threatened
and don’t feel safe, they cannot learn effectively. And I think there’s
a parallel here, to pick up on Professor
Horowitz’s point about some of the discussions
we’ve been having on this campus in
recent weeks and months, and over the past
couple of years. Though the court
in Tinker couldn’t have known this, except
intuitively at the time, because the science
wasn’t there, speech that triggers
this response in students is materially disrupting
the educational process, even if everything seems
to be running smoothly on the surface. A culture that produces
acts of bullying, to go back to idea number
one, is a culture that undermines student learning– not just the students
who are the targets of the hurtful speech, by the
way, but also the students who are bystanders, and
whose safety may be threatened by witnessing the
victimization of a classmate, and also, incidentally,
the learning of the bullies themselves. When adults do not hold
children, and keep them safe, which means both protecting them
from the aggressive behavior of others and setting
limits on and redirecting their own aggressive or
anti-social behaviors, everyone’s learning suffers. Rather than allowing a culture
to form in a school that produces acts of
bullying, it is the job of educators to work
proactively to create safe and supportive cultures
in schools where learning can flourish, sort of like
creating a football team that knows what
to do in the waning seconds of a Super Bowl. Third idea– it’s
about the response. When we find ourselves in
the position of figuring out how to respond to hurtful speech
that has already been uttered, it’s too late. Yes, there is an affirmative
duty, not a legal one perhaps, but a moral and professional
one certainly, that educators have to repair the breach
in the social contract that occurs when an incident
of bullying happens, and to reestablish the sense
of safety for all students, so that everyone’s
learning can continue. But the utility of any
response after the fact, if all of the culture
building and prevention work has not already happened,
will be marginal. All the more reason why
punitive responses that infringe on students’
free speech rights are not the way to go. Not only are they
unconstitutional, as you’ve helped remind
us, they are also educationally inadequate. In any kind of balancing test
their value would be nil. From an educators point
of view the function, it seems to me of
Professor Ross’s argument, is to take off the table a
set of options, censorship and punishment, that
fail on both counts, constitutionally and
educationally, pedagogically. Her argument sends educators
back to the drawing board and says, you have to
figure out another way. This is important and
helpful, because in my view it creates the possibility that
we will place emphasis back where it needs to be on the
front end, on prevention, and it places emphasis not
merely on the individual rights of other students,
which are important, but also on the quality of the
environment for all students, on building school cultures
where everyone knows what hurtful speech is,
where everyone buys in to a set of norms that value
community, cohesion, pluralism, and respect, and everyone is
taught the skills to know what to do, and how the adults will
respond when those norms are inevitably violated,
as they will be when you’re talking about kids. This approach to hurtful
speech is more difficult, because it must be
planful and proactive, and because it takes more time. But it is both more effective
than censorship and punishment at preserving each
student’s access to educational
opportunity, and more likely to produce
the kind of citizens who will be prepared to
participate effectively in the democracy
that we aspire to be. Thanks. MARK TUSHNET: Thank you. I found reading the book
extremely interesting, and as these earlier comments
indicated, thought provoking. Given the panel in
particular I welcome the opportunity to be
relatively conservative about these issues. I can give you an
account of why that is. But what I mean by
relatively conservative is roughly speaking the book is
full of examples from the lower courts and from unlitigated
cases that get settled, which I found
extremely interesting, the set of cases
extremely interesting. They, for rough purposes,
fall into three categories. There are the cases where
the school administrators or system behave in an
outrageous kind of way. There are cases that
are close questions. And there are cases where the
schools are probably right. So being relatively
conservative, relative to the book,
is that Professor Ross thinks that there are a lot of
cases in the outrages category, and fewer in the close
questions, and even fewer in the probably right category. As I read the examples
my juices don’t get boiling over nearly
as many cases as hers do. There are some
outrageous for me, I agree, but not
as many as for her. There are many more
close questions and there are more,
not many more, cases that are probably right. So what can I say
analytically about this? Well as everybody acknowledges,
Professor Ross, the courts, the Supreme Court, schools
have a role in educating for civic participation. And what that means is that
they can, if they want, they don’t have to, but we
seem to think they should, teach norms of civic and
therefore civil behavior. And what I mean by this
are actually quite simple– normals like don’t be a jerk,
or somewhat more complicated, don’t abuse the
rights that you have. Now the question is, how
do you teach those norms? Now one possibility is that
you model appropriate behavior. So in the face of a kid who
is a jerk towards a teacher, a teacher can refrain from
being a jerk in response. That’s some of the
insults to teachers cases, or insults in the
school principal cases. You can adopt
non-coercive responses, engage the student
with it, and explain why the behavior is jerky. But you might think
that sometimes that both modeling and
non-coercive responses are inadequate, particularly
with respect to a kid who is already behaving like a jerk. And so it seems
to me there should be some role in the
overall scheme of things for some degree of coercion in
response to jerkiness or abuses of what might be fairly
characterized as rights. Second dimension
of this is that– and this is associated with
the culture wars dimension, public schools also have
to maintain popular support in the long run. And what that means is that
they avoid controversies with politically
important constituencies. And because of that
institutional role, they’re different, in that
respect, from politicians. We don’t care whether our
politicians lose support from an important
constituencies. All that happens
in our civic order is that those politicians
lose their jobs and. Who cares about that,
except for the politicians. But what we should worry
if public schools lose support from important
constituencies. So given these two
things, the role in educating for
civic participation and the possible inadequacy
of non-coercive responses to what I’ve been
calling jerkiness, and the need to maintain
popular political support, there are a couple
of perspectives that we could adopt. One is to adapt external
constitutional norms, those applicable elsewhere
to the special circumstances of schools. So in this view the
material disruption might not be the right standard
for hate speech or bullying speech, because of
the school’s role in teaching civility norms. And here the contrast is
with Cohen in California, which denies the government,
in this external capacity, the power to regulate speech in
the service of civility norms. That’s the best the
for what the state did in Cohen and California,
is regulation in the service of civility. And the court properly
says, you can’t do that. But maybe you can do that
in the school context. Alternatively, you could
develop the external or general constitutional rules in a more
complex, context sensitive way. So in Fraser you treat the
immaturity of the audience, and the captive audience
aspects of the problem, as instances of general forms,
which is sort of what happens is FCC versus Pacifica. There are kids in the car. They’re sort of captive. So the kids, they’re immature,
and they’re in the car, so they’re sort of captive. And so the regulatory
authority is OK. I want to suggest
a couple things. First, and this is explicit
at the end of Professor Ross’s book, of course, we
do want to ensure that teachers and
administrators are sensitive to
constitutional values. In a fair number of
the case studies, I think, the law as applied
in the courts seems OK. In a fair number
of the examples, the students who
challenged the action win when they get to court. But the concern is that
the cases were never gotten to the courts. And they get there
because administrators are insensitive to,
or perhaps even aware of relevant
constitutional norms. And so in this
dimension, you want to develop a good
program to educate teachers and administrators. That won’t be easy,
at least in my view, particularly if the law is in
fact institutionally sensitive, so that just importing what
I’ve called external norms into the school context
wouldn’t be adequate, but qualifying the thing
for the school context might lead
administrators to say, actually, there are lots
of things we can do. And they’ll push the bounds,
as Professor Ross suggests. The second possibility is– and I’m actually quite
attracted to this, that you have a legal
standard denying liability for actions taken in the
good faith belief, which will incorporate some notion of
knowledge of the relevant law, taking in the good faith belief
that the actions will advance educational goals, where
those goals are defined to include both the expressed
curriculum, English, math, and so on, and the goal
of helping students to grow into becoming
good citizens over time. Just as a footnote
on this, you might want to distinguish here between
a prospective declaration that the action shouldn’t
be taken again with immunity from damages for the action. But some notion of good faith
promotion of educational goals seems to me a useful way of
thinking about the problem. That’s it for me. CATHERINE ROSS: I’ll
respond really briefly, just to say that at the
end of my book I do in fact make some proposals
about positive things that schools can do,
that educators can do, and also that citizens
can do to help sensitize their local school districts
to preferences for respecting civil liberties before
there’s an incident that causes the administrators and
the school board to dig in. So I agree with a lot of what
the commentators have said about things that can be done. And I just didn’t reach that
in my preliminary remarks. And I really appreciate the very
careful and thoughtful reading that all three of you did. AUDIENCE: My question
is to Professor Ross. And I think it’s
Professor Gregory who seems to set a very
low bar in terms of how schools not only can
censor, but even prevent speech. It’s not just speech
that might be disruptive, but speech that might
not be conducive to a comfortable environment
for the students to learn. I mean, that seems like
a very low bar to me. And also I don’t
think the purpose of our First Amendment– I think it’s an
inalienable right. I don’t think our First
Amendment is predicated on some utilitarian
value that it somehow makes things comfortable
for everybody, or serves as a lesson in civics. Thank you. CATHERINE ROSS:
I’m not sure where the question left the comment. But just very briefly, I think
that the two statements are not incompatible. I didn’t see Professor Gregory’s
bar as being all that low. But I agree with
you that the First Amendment is not utilitarian. And in fact, Tinker itself talks
about our disputatious society and discomfort. And yet some schools say, well,
our legitimate pedagogical reason for silencing
speech is it’s too controversial
and uncomfortable. That is not acceptable. But I proposed something
that is still a bit inchoate called an infringement
matrix, which is somewhere between
where you are and what Professor
Gregory suggests. The disruption
standard in Tinker is really supposed to
be about the school as a whole, an impact on
the whole environment. But sometimes individuals
are so harassed and targeted in a repeated way,
where it’s intrusive, and really in your
face, and inescapable, and that might trigger some of
those fight or flight things, as well as some more
things that we’re more comfortable with in
the law traditionally, so that we could say
for that student, and this has been implied
in fact to students with special needs by Judge
Weinstein, it rises to a level where the student can no longer
access education like the Davis versus Monroe standard. And so there we say it’s not
an instrumental understanding of speech, the speech
right is clear, but it is subject
to some limitations if used too irresponsibly, so
that in a school where students have no choice but to be
there and can’t walk away from the speaker
during the school day, there might be some
way of protecting them consistent with
free speech norms. JUNE CASEY: We’re
almost out of time, but one or two more questions. AUDIENCE: Professor Tushnet,
you discussed an idea about legal responsibility
of the administrators and your idea of a good faith
mistake that they might make. And it seems to me that that
opens up a huge can of worms and it really shifts
the burden of them in preparing
themselves beforehand, before they even
become administrators, to know very well that these
constitutional principles, however they may be
defined, are there. And I want to analogize that
to the same idea that was done, I think, in the mid ’90s
about 4th Amendment issues, specifically Whren, where you
give the police a good faith exception to allowing
otherwise illegal searches and seizures to happen. And I just foresee a slippery
slope where they could always hide behind, well, you know
our goals were honorable, and mea cupla, but
you know, too bad. Would you like to
respond to that? MARK TUSHNET: Yeah. So I agree with the analogy. The tradition from
which I’m talking is an old fashioned,
now 100 years old progressive tradition,
in which one of the goals is professionalization of
street level administrators, including police officers, and
teachers and administrators. And one component of becoming
a professional of that sort is learning about
the Constitution. And so in principle, I think the
good faith behavior by police officers is actually fine. The problem is we don’t have
an adequate system of ensuring that they are actually aware
of what the Constitution says they should do. And similarly, it
may well be true, that education of educators
is inadequate for them to become what in my view
would be true professionals. JUNE CASEY: Thanks everyone
for coming today and joining us for our first book talk. I hope you are able to
join us for our other talks in our spring series. Just a gentle reminder,
we have quite a few copies of the book on the back
table courtesy of the Coop. So let’s thank our panel today
for a wonderful [INAUDIBLE]. [APPLAUSE]

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