Posted by Eugene Volokh:
Stanley Fish Agrees with Justice Thomas on Student Speech:
http://volokh.com/archives/archive_2007_07_08-2007_07_14.shtml#1184000425
[1]Clarence Thomas Is Right, reads the headline to Fish's New York
Times op-ed. (Recall that newspapers headlines generally aren't
written by the authors of the articles, but here the headline is an
accurate summary of Fish's view.) An excerpt:
Although Thomas does not make this point explicitly, it seems clear
that his approval of an older notion of the norms that govern
student behavior stems from a conviction about how education should
and should not proceed. When he tells us that it was traditionally
understood that "teachers taught and students listened, teachers
commanded and students obeyed," he comes across as someone who
shares that understanding.
As do I. If I had a criticism of Thomas, it would be that he does
not go far enough. Not only do students not have first amendment
rights, they do not have any rights: they don�t have the right to
express themselves, or have their opinions considered, or have a
voice in the evaluation of their teachers, or have their views of
what should happen in the classroom taken into account. (And I
intend this as a statement about college students as well as
high-school students.)
1. I'm not sure what the right rule for K-12 student speech ought to
be, but it seems to me there are very strong arguments for endorsing
the constitutionality of the "teacher command" view of schooling, in
which students are taught discipline and obedience first and foremost.
There are doubtless benefits to providing more freedom for students,
but my sense is that there are serious drawbacks to it as well.
Among other things, it may well be that constraint is especially
important for students who are already in jeopardy of academic or
other problems, or in schools that are already suffering from such
problems -- disproportionately schools that educate students who are
poor, come from broken families in which less discipline is present,
or are surrounded by extra risk of drugs and violence. Eminently
well-intentioned egalitarians, including ones who support liberty for
adults, might well conclude that constraint for children is the way to
achieve more equality (and even liberty) for society more broadly.
I'm not expert enough on the subject to know what works and what
doesn't. But the "teaching kids discipline is the key to promoting
equality and liberty for adults" approach strikes me as plausible
enough that it at least can't be dismissed out of hand, whether by
conservatives or liberals. The special role (and history) of K-12
education may well justify leaving the free-student-speech vs.
pervasive-constraint decision to schools, and the practical realities
may well justify many schools' endorsing the pervasive-constraint
perspective. So even liberal fans of Prof. Fish shouldn't see the
Fish/Thomas pairing as a particularly odd couple on this score.
2. It's also worth noting that Prof. Fish would apply a similar rule
to college students -- a position that, I've argued, [2]is supported
by some aspects of Justice Thomas's opinion, though not by others. I
take it that if Prof. Fish is serious about his parenthetical, then it
would at least apply to the entire range of speech that Justice Thomas
is discussing, though at a college level: speech either on campus or
off it (even in entirely non-academic activities, see the Old Jack
Seaver case that Justice Thomas cites favorably in his opinion),
whether the speech is political or not (Justice Thomas, unlike
Justices Alito and Kennedy, would allow the limitation of expressly
political speech), and whether the speech expressly advocates illegal
conduct or not.
Prof. Fish doesn't explain, unfortunately, why exactly such
restrictions are necessary and proper. Justice Thomas might endorse
them, even at the college level, if he thinks that's what the original
meaning of the First and Fourteenth Amendments requires, but I take it
that Prof. Fish is not an originalist and thus can't rely on that. And
the intuitive arguments about the need for extra discipline and
constraint for K-12 students don't easily carry over to college
students, who tend to be adults, albeit young adults. Here's the heart
of Prof. Fish's argument:
Educational institutions, however, are not democratic contexts
(even when the principles of democracy are being taught in them).
They are pedagogical contexts and the imperatives that rule them
are the imperatives of pedagogy -� the mastery of materials and the
acquiring of analytical skills. Those imperatives do not recognize
the right of free expression or any other right, except the right
to competent instruction, that is, the right to be instructed by
well-trained, responsible teachers who know their subjects and
stick to them and don�t believe that it is their right to pronounce
on anything and everything.
That may well justify very broad teacher authority within the
classroom, but it doesn't tell us much about what college student
speech should be allowed outside the classroom, especially at events
that are pretty far removed from normal pedagogy.
In any case, an interesting op-ed that struck me as worth noting.
Thanks to Gerald Wachs for the pointer.
References
1. http://fish.blogs.nytimes.com/2007/07/08/clarence-thomas-is-right/
2. http://volokh.com/posts/1182981893.shtml
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