>> good afternoon, and welcome to the cato institute. i am the vice president here at cato and publisher. i would hardly like to thank you for coming here today off our viewers online and being broadcast by c-span, you may not know, unexpectedly the washington subway system, the metro was closed today. the people that have joined this year amid a great effort to your something about this book, lessons and censorship. the topic of our book form today. another thing that can be said command we chose today for this particular book and the reason is, the 265th birthday of a man named james madison. as it happens, james madison wrote the first amendment because he wrote the 1st ten that were introduced into congress and was beyond that more than just the author of them what a person who wrote them committee was also a strong defender and believed hardly in the. i would say also that in part of that, the first amendment center valuable institute here in washington has designated his birthday national freedom of information day, celebrating here today along the publication of this book. i can't help but refer to what i thought was interesting and useful comment or medicine on this very topic the first amendment freedoms and freedom of speech. madison road, a popular government without popular information with a means of acquiring it is but a prologue to a farce or tragedy. perhaps both. knowledge will forever govern ignorance they are in themselves with the pep. >> knowledge gives. knowledge will govern ignorance. personal information act hall of fame. hank aaron. that said, i hope you have a person today was down the line will be a candidate in the freedom of information act hall of fame. the author is a law professor and during the current academic year is a visiting scholar. this book was named 2015's best book by concurring opinions first amendment news. specializing in constitutional law also in family law she was a commentator in january on a panela panel we had in the participant in cato unbound conversation. if you're following this today please use the hashtag cato events. the steering committee on unmet legal needs of children served in many ways at the highest levels of family court and long, distinguished advocate of the first amendment we are happy to welcome to the cato institute. [applause] >> thank you to the generous introduction. i will begin by reading the opening passage. use all constitutional rights once you enter a schoola school building. you're not allowed to do this, she asserted. she confiscated flyers from an indignant student who was protesting her friends five day suspension. the student whose plight prompted the pamphlet had been punished for voicing her opposition the bullying and way to school deemed inappropriate. the first amendment protects speech rights of public school students in grades k --dash 12. you schools all over the country regularly censor constitutionally protected speech by children and judges often let them get away with it. punishing it afterwards. schools silence and punish students who express their opinions on every sign of important issues we adopt the committee. guns, abortion, and more. they suspended. the suspended a six-year-old who call the class made up of who had. they stopped one elementary school girl from praying before eating our own lunch. and another from distributing all made flyer that began high, my name is in be in which she shared her personal experience that finding christ was like finding a lost dog. in the upper grades school suspended two boys touring political t-shirts. i'm sorry. have to do it appear. we should have practiced. i'm so sorry. this is awful. okay. one was praising the marines and the other was criticizing president george w. bush is a substance abusing draft dodging chicken hawk. and schools are increasingly abusing students ability. the constitution protects all this expression. when we talk about students we are talking about adolescent humor. students are likely to get in trouble which really means it's offensive because i disagree. thank you. the problem is too many principals and school board members don't know or understand the limits of the constitution while others simply disregard the law because now i could. as ii worked on this book almost everyone i talked to informally said i have a censorship story. and longtime teachers incredulously told me they had no idea students have first amendment rights. then i'll turn my stories the capture some of the particular contemporary ones. very concise. 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 may not sound speech because of its content review point. school districts and everyone who works for them my research and my comments to their limited to public schools because the first amendment does not apply to independent schools to whetherwhether secular or religious. they are not the government. the supreme court 1st took up the issue was students speech rights in 1943 comeau one of the earliest cases in which it actually upheld the speech rights of any individual. jehovah's witnesses 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 are interpreted as a religion case. the consequences today of speaking up and being punished can also be dire. many students enter the pipeline as a result of being suspended, expelled more sent to an alternative school for troubled students after they engage in protected speech. the consequences are stark. people could not be forced to say what was not in their minds to my concept we today call the rule against compelled speech. the court emphasized constitutional limits constitutional limits on powers whether exercised by those tyrants for the federal government and it underscored that the first amendment was designed to protect nonconformist of all stripes. particularly focusing on schools because the case involved two elementary school girls. because schools are educating the young for citizenship they must scrupulously protect individual rights if we are not to strangle a free mind at its source and to teach you to discount important principles of government is near platitudes. decades later the court returned and began to carve out a special way of assessing claims in school set illegally censor student expression. the 1st and iconic supreme court case and airlifting the cases. the 1st modern case want 1969 and held the schools of violating the first amendment by suspending students who were black armbands in order to protest the war. especially the importance of educating young for citizenship and crafted a special test they give schools more leeway to restrain speech to the government has the world at large. it announced schools could not censor student expression unless they had a reason to anticipate the speech could lead to disruption. exceptions to the test and threein three later cases. these give schools more and more power to censor speech but did not extinguish students speech rights. two exceptions in the school's discretion to censor 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 instance from hazelwood versus cole meyer, 1988 decision that created a special category of speech the court labeled school sponsored. if speech is school sponsored it is treating -- it is treated as if the school is speaking in a student is not even though the speech originates with a student in such places as high school papers for literary magazines but also much further. the speech must appear to bear the schools and perimeter or to be the school zone speech so that a reasonable person would think the school had approved it. this reaches virtually all expression. .. >> let me briefly anticipate some calming concerns about giving students too much freedom in school. recognizing students constitutional rights will not undermine education at all. there are two concerns, it's going to undermine education or or o it's going to put people at risk of their safety. regarding the first concern, education, preserving the school's educational function is the essence of the material disruption test. so disruption does not have to be tolerated. as for the second, safety, schools may always clamp down on speech that's illegal outside of school, like true threats, a narrow constitutional standard, very hard to satisfy but also harassment. and so forth. and more important, even speech that's protected outside of school by the constitution, that threaten violation or serious disruption. but it does not rise to the level of a true left under constitutional law may always be silenced by a school before it causes problems while officials contain the speaker and investigate whether there is cause for concern. safety comes first. so that's the tax. principal or o person has to figure out what kind of speech this is. the students own that's not lewd , not prodrug or school sponsored, and then within that taxomomm apply the correct test because they have a different formulation. i understand that it is really hard for teachers and principals in spur of the moment when they're worried to try to understand and use a complex set of standards. but they're also not adequately prepared to do that. so i provide a chart in the book, color version that can bed orrd an placed in a principal office like heimlich poster like what do i do now? we have a speech incident. okay, this is going to remind me if it's the students' own speech i have to really slow down and i can't silence it unless there's a threat of material disruption then i have to understand something about what that means, this is not complete legal advice if it is school sponsored, i have to slow down, i can sensor it but only if i have a legitimate reason, and the fact that someone finds it offensive or it might be controversial is not a legitimate reason under the first amendment. but the prodrug or inciting inflammatory in some way with or defamatory, i confess and punish it at my discretion. so now, how does this all work? most of the speech that's at the core of contemporary debate sexting, online speech, bullying, racist expression falls in category of what had i call pure student speech goferred by material disruption, test. let me begin with creative artist who is commonly get in trouble at school for fictional and graft graphic works. this is a poster that a high school senior named sarah never been in trouble. she was a good student made during her lunch hour and posted in the quarter. that 15 minutes later before any students had seen it, they were itor sawafeteria, j it, and got really upset and took sarah and poster to principal's office. it says and i'll just capture it, who killed my dog, he was my best friend. it you kill my dog? did you kill mying to? if you don't tell me who killed my dog, i'll kill you. she had taken a course during the summer that taught her about con o art to capture deranged fictional people and in the principal office she explained this principal believed her but he said i have to suspend you for five days. subsequently the school board got involved. and this school board decided that she should be suspended for 81.5 days. the rest of her senior year, and that she could not return to school unless a psychologist examined her and confirmed that she was mentally fit to be in school. she sued and court ruled that her rights were violated and she was able to return to school and complete her senior year. they said once the principal u interviewed her and understood what was going on, there was simply no reason to anticipate disruption especially because even if other students might have been upset had they seen poster, nobody saw it. so there was no cause for concern at all. in a similar case involving a work of fiction, write in fiction appellate judge rebuked panelist for allowing school to publish the writer. he said after today students will have to hide their artwork. they've lost their speech rights. if someone finds their art disturbing they can be punished and freedom of expression to policy of making high schools cozy places. like day care centers, where no one may be made to feel uncomfortable by knowledge that others have dark thoughts and all the art is of hearts and smiley faces. so if you're wondering about the connection between my book which stops senior year of high school, and some of what has been going on in today's college campuses about my students who think that their comfort level is more important than the expressive rights of their peers, this is part of a connection that i see so i have not written about it. but it's part of the katoa unbound discussion that john mentioned earlier. and this brings us to disparaging speech, addressed to groups or individuals. many schools have speech codes. those are simply school rules that prohibit students from disparaging based on kargs category like race, sexual identity and some go further talking about also physical appearance like short people, like me -- or even something much harder to measure, values. >> students whob presented from expressing respect for a group even though they weren't actively aiming their had comments at the group or meaning to be disparaging. i open that schools have center of teabts and many, many schools have wrongly prevented student from forming chapter had of the gay, straight alliance ore similar groups. or from wearing t-shirts in which students proclaim their own sexual identity. but he's the flipside in this story. roman catholic daniel resisted a lesson intolerance on spirit day. and national day of recognition for lbgt teen who is committed suicide. he told his teacher, i don't accept gays, it's against my religion. and the teacher told him to leave the room. there was no risk of disruption ore only o of competing ideas. a federal judge later commented that the teacher had modeled oppression and intolerance of student dependent. other students agreed. because when daniel left the room, they asked why doesn't he have free speech? the legal question is whether the constitution permits students i'm sorry permits schools to regulate hurtful speech addressed to groups or individuals in school or out of school. and the answer is -- the constitution does not permit that. the u.s. is very unusual. just as while she was a law professor discussed university hate speech codes and concluded that even an exceedingly narrow speech code ended in discriminatory harass hadment cannot have scrutiny in the united states and does alito true on the third circuit pointed there's no reason to be protected from words. free speech principle conflict with efforts to reduce the harm that disparaging speech can cause. so this is the crowning paradox under our constitution, a liberal secular democracy that strives to have tolerance in our citizens and more importantly perhaps a culture of mutual respect rather than simply tolerating each other, must tolerate are the expression of intolerance. that mean it is that the state can't use its cohearsive powers to punish speech that offends that goal. but the speech clause doesn't leave educators without any recourse. schoolses teach empathy. they can encourage peers to step up to support each other. when someone is targeted with a hurtful slur, or stereotype. and schools can model constructive ways of disagreeing. ideally i would urge that respect for students speech rights provides a train aring ground for exercising rights responsibly. so responding to hurtful speech with more and better speech as the first amendment generally requires and looks for. and for learning how to have substantive conflict about real issues without -- gong too far cut off conversation what i call learning liberty by living it. so i'm going to close with a third example which is the growing number of incidents in which schools reach out, claim they can punish what had students have said offcampus, usually online and off school property. schools increasingly claim that power to track and punish what students say 24/7 some have hired retired law enforcement officers to keep track of their students' online communication from their own computers from their homes. now, remember that the whole rational for giving schools more power to restrict speech than the government has if in the world at large, is this this special environment and purpose of the public schools on campus. but schools say they can violate speech that is fully protected by the constitution outside of school if it violates the school's rules of decorum. and they say if we do that, one of the schools standard apply, not the normal scrutiny first amendment test. u unfortunately schools didn't have this idea on their own, because agencies of the federal government and many state statutes put this responsibility on schools. and areas such as bullying -- the laws unsettled and it's leakily to remain so because the supreme court just last week denied in a case called belle versus county school district in which all 16 judges on the 5th circuit sitting in bank to review a imagine decision went further than any other appellate court in allowing schools to discipline a student for offcampus speech, and this was senior, also with a good explain their record as in many of the cases. african-american student who wrote and recorded a rap song and posted of it on youtube in which she accused, coaches at school of sexually harassing four girls who had talked to him about the problem. and no one ever argued in court or evener iser is asserted outsf court that this was not u true. no one said including the coaches that this had never happened. but school said this was school personal which they have gangster rap lyrics with fictional con convention an violence like killer mike indicated in a brief to supreme court urging them, and the petition i'm sorry the brief on the petition informs court in case they may not know that killer mike has ever really killed anyone. okay. so -- this leaves the law very different in different part of the country that offcampus speech meaning, if a lot depends if you live in texas or mississippi or if you live in washington, d.c. or boston . but it is well known from reading cases very clear from these cases that krit are schisms of school staff members are a very likely kind of speech to get kids in trouble. they do serious punishments. killer bill sent to an alternative school for troubled kids although it was his first offense and similar things have happen haded to students who have posted adolescent human, fake myspace pages about their school principals making fun of school administrators. complaining about a mean staff member or bad teachers like i hate ms. phelps. but freedom of speech exists to protect incidents including those who criticize authorities and power that is a core pl principle and hon norred in our school system. the state's reach into the child's home in these cases also creating an express conflict between what educators think and parental and raising their children and what is acceptable for their children to say and do and post from the home. parents often punish the students in these cases not just the offcampus speech case bus oncampus speeches if their speech was rude or crude, but they sue the school to get the cohearsive discipline at the state off their child's permanent record because that can have a profound impact on the child's life, and if i have time i'll tell you one more story. thank you. it's a great story. my last examples this was an oncampus ini decision into online private conversation between two middle school students from their home it is in rural minnesota. the conversation had somethinged to with sex. we never learned its actual content. it was conducted on internet off school growppedz grounds and off school grounds. when they learned about it from the family of the boy who initiated the conversation, they went after the girl who responded to his invitation to talk about sex. and they pulled her out class ad opened her laptop and demanded her id and passwords for all of her accounts. they didn't call her mother. they interrogated her with the police present. they opened all of her about thes, she was sobbing. and they found a facebook sex clothes which had she said i thought it was fun and funny. and they condemned her for doing this online as well as her personal correspondents. a warrant searched without any grounds at all. and when the mother filed a lawsuit saying they had violated her daughter's first and fourth amendment rights although they had not punished her became clear where the judge was going and the case settled for $70,000. we've learned since this episode from the supreme court that personal computers and phones pulled everything that is in a person's mind that was not as clear at the time. but it is clear u now. these intrusions into offcampus expression of the first amendment protects teach young people the opposite lesson the opposite they said we should be teaching. they teach students to dismiss as meaningless the rights we tell them they have. they teach young people that there's no place to hide from an authoritarian government who is officials new from krit are schism undermining every core principal of our liberal democratic state and i look for forward to responses and to the questions. [applause] examples for the first time in many years that i got dragged into the principal's office for as i recall talking inappropriately during the reading of a lord's prayer. u now given that at that point the school is a public school, and the the school officials were involved in violating another part of the first amendment. in retroare spect it was my finest hour. but it didn't really seem like that at the time. so -- first commentator will be from a book forum and we thank for that. received a doctorate from tel-aviv, university she awardeo tel-aviv post doctoral grants there in 2001 to 2004 she was a post doctoral research associate at the university center for human vales at princeton university. while in israel served on a palestinian israel committee served by the peace center working towards educational reform. dr. ben was a member of the young scholars center for the study of israel participated in the women faculty forum at tel-aviv university and established a israeli association for secondary education for students with learning stabilities. her research focuses on citizenship education, aspect of educational and social policy and social effects of war. her areas expertise is philosophy of education and political philosophy. her book is citizenship under fire. democratic education, and times of conflict in 2006. and tough choices structure paternalism and landscape of choice both of which appeared with princeton university press. dr. ben, back to the cato institute for your first appearance. [applause] >> thank you john, katherine and invitation of my first appearance for katoa and opportunity to be with this important book. i've been thinking and studying civic education for quite a while up until now, and i had mentioned that two other things that inform my reading of this book is my current work with preparing teachers through teach for america and working with school administrators where i try to press on them some of the key issues that relate to free speech in schools and other legal and social expectations that we have all in the field of education. an that also mention that i'm serving currently of the chair of the committee on open expression at the university of pennsylvania. so definitely i'm encountering a lot of these, these matters in the college context. but today focusing on this book, i'd like to basically just trade two points. one, principal point and the other a more practical point. so the first one, the book exposes sometimes contradicting foundations on which we rest our expectations of schools in the do main of educating for democracy very broadly beyond free speech. schools are expected to reflect and model democratic principles such as free speech. but given that they're working with children and youth, they are also expected to control their students behaviors in ways that would be recognized unconstitutional in other context right, so we have this conflicting demand which is basically the starting point i think for a lot of the litigation that the classes. in various ways, we expect schools to operate in less than 40 democratic ways. we being society or sometimes administrators the way they see their jobs and sometimes our actual legal practices such as law. this would not be acceptable if we talked about adults but they are acceptable when we talk about children. if we focus for a moment on speech solely as an expression of the core values that one holds. which of course is just a subset of or our speech and when it comes to children and particularly youth is probably just even a smaller subset so we have what could be called worthless speech as you term. even if we think about speech only in the context of speech of expressing core values, schools are meant to reflect value pluralism to allow for variety of views to be considered this is not only to preserve rightses but sustain school as a microcosm off of public fear and that was key message i think coming from speaker. on the other hand, if we think about school training ground for democracy rather than as a microcosm of the democracy, then we more readily accept the need to limit, redirect and silence speech. we may reasonably think that schools guide and mold children including limiting their speech rights and other rights if we think that students are further away from being ready to take on that you are -- their civic roles so our views of school of democratic may kro kawsm on train ground on the orr depends in turn on our views and, of course, most importantly to children and youth. are they many tut who is should practice their civic role in every realistic setting as possible? or conversly immediate to be tamed an trained to be established social order. this book offers framework for reforming current legal approaches and pushing them in a certain direction and informing practice in a way that expands students speech rights. and in this seasons, it is firmly placing former camp that sees children as junior citizens and schools as reflection of the democratic public sphere. and this is very close to the view which has a long history, of course, in american public schools, and is, obviously, a very worthy and well established one but it is worth noting that both in the fury and practice of education, this view pretty much is considered to have lost to the other view right, so it re central vision as we see in the court decision and in the example of practice that professor suggested and that i want to present and even more extreme version of right now. so this leads me to my second comment. the one i have a more practical comment about the book. in the field of practice, the speech rights of students are violated more often than each justified or o if we take a seriously as we should both letter and series of that book more than is legally justified. if indeed schools have and i, quote, a uniquely important role in training the young people to assume the citizenship, it is crucial that not only callers and protectors of the law, but also is citizens. we train our gaze at more common practices in contemporary schools that some of us even as lord prayer is not regularly recited in public schools anymore, it is in some parts of the country. but not as commonly as in the past but still newer practices in school that we should be aware of and concerned about to the extent that we care as we should about students speech. so many schools today are taking the route that circumvent by policing student speech to the extent that it doesn't exist within the school wall. the discussion of students speech right it is in this important book rest on existence of the speech, student speak or holds a banner, practitioner responds maybe suspending them and then court needs to decide whether the fact -- whether, in fact, the speech act should have been protected taking into account content of the speech we've seen posting and the context in which the speech took place whether within the school or sometimes outside of the school as we heard. it was clear to me as i read this account of the development of the court's view of students speech rights that the more expansive interpretation to sustaining democracy practice in american society cannot easily be realized in today's education environment. most i'm concerned by the question to what extent can the act of speech be protected in schools to what extent can we defend students' rights to speak independent of the content of their speech? in a growing number of con tech rare schools and i've been doing research on this for past two years mostly in philadelphia, in a growing number of schools especially those serving low income and minority students, students spend days, weeks, months without ever allowed to use their voices. classroom activities times with the teacher at the center of the activity and the students expected to follow her lead and respond only when spoken to and only with their response that is written in the teacher's guide. in the rare discussion that discussion is permitted it is question of limited breath and usually there's a timer on teach's power point and set to 45 seconds that goes up to three minutes, and you get a very limited question such as how u would you solve this equation. or sometimes -- what would you it shall my favorite example. what would you do if you were malcolm x an you get two minutes to discuss with your friends it's a guided discussion. and then ding, it's over and we're back to listening to the teacher. i've seen compelled speech in this context particularly when students are -- sorry teachers are using calls or chants to draw students attention own to make sure they're focusing, so for example, the teacher would call smart, and all of the students would have to respond. callers or whatever it might be. first amendment, right, so you would get some kind of call and response if you don't participate in the response even if you were sitting quietly not being disruptive, listening to the teacher, but you didn't respond to the chant, you will be reprimanded usually with detention and after four times suspension. outside these compelled speech and outside of the base that i just described to you, the rest of this school day is silenced including the hallways and most notably in depressingly for me the lunch room. speaking to the person next to you at lunch is a privilege that has to be earned. and weeks can pass in which whole schools, kindergarten through 1 2 d grade are required to have quiet lunches they march single file with one hand corp. their mouth so they're remembered not to speak. use of one's voice including whispering, laughing, and again quite depressingly sighing, this is considered to be a violation of school behavior code and it's met with an automatic piewnty response. the reasoning behind this practice is the reasonable belief that students must attain a strong level of academic had performance in order to exceed in life in different domain includes as citizen an lesser belief this can only be achieved if their monoored to and limited to these extreme comments and there's sentence in the book i want to read to you that shows the court aligning with this view, judges this is in relation to the morris case, or for jesus case. judges have read the court's anxiety post more about violation and learning environment -- to justify where schools are failing, right so where we have lower performing schools, we have a stronger reasoning or supposed justification to limit students' free speech rights and other rights. the village tyrant is a powerful metaphor for those who subvert undermine or silence students speech rights and as we see throughout this book, their tyranny express speech most by desiring various speech acts and unacceptable or on the other hand useful speech as required within context of the school. i would encourage those of us who care about students speech rights to consider those increasingly common practices. which may beheartedder to address within our current legal framework. but which nonetheless stand in the way of a democratic education for citizenship. and with clearly not be supported by alerting liberty framework that we just heard about from professor. to be clear i agree that basic academic students and equal education and opportunity are essential to a functioning democracy for reasons that i'm nots elaborating here. it is violation, though, that we recognize it is like reading or o math, citizenship to learn by doing. an not evolve as a side effect of maturity or o academic attainment. practicing the skills of being a citizen is essential for a democracy which aims to sustain a vibrant public sphere informed by democracy key principle creating and sustaining school environment that support this gradual intentional development of the skills requires focus on the protection of democratic school environment in which students free speech and other basic rights are properly recognized and celebrated. thank you . [applause] >> thank you very much. you know, cato institute really depends on the first amendment a lot of ways part of our strategy right from the beginning part of katoa's outsider status we were advocating ideas from '85 or '95 and so on that hadn't gained traction in some ways so we wanted dominate u views to debate us so first amendment was essential to our idea of how we became part of the national conversation. but we always want to make sure that things we have that katoa position was enunciate sod it was testifieded. and today professor ross, i thought studying up this panel would be part of the katoa position or maybe all of the katoa advocates for our libertarian position on this. but we also do education here and this has an education nexus so i thought to include my colleague neil who does education here at katoa. neil is, in fact, the director of the katoa center for educational freedom prior to arriving to katoa he served in the u.s. army. taught high school english, and maybe he'll have some story from that for us, and freelance reporter covering municipal government in suburban, new jersey. but before we're becoming director of the center, he was policy analyst at center for education reform, he's the author of that in the classroom help the government cripples and compromises american education an writings have erred in leading publications he's been on c-span before on cnn, fox and numerous radio program and degree from georgetown and double major in government and english as a master's degree in political science from rutgers university and a ph.d. in public policy from george mason. welcome, neil. [applause] >> thank you all very much and professor ross thank you for writing this book. i think you know doing education policy all of the time that threats, the basic rights in public school is not a subject that gets nearly enough attention all sorts of sort of questions about what we teach, how we teach it. how kids interact those have all sort of been pushed aside with a session over test scores. everything is what is test score and what is test scores by the way what are test scores and these are top topics that we need to talk about. there's some inclusion between those in schools and public transportation and by closing down conveniently the metro but we'll see. [laughter] within the bock, i especially appreciate the discussion of dangerous federal overreach. i've done some work on the federal role in education. but the especially the anti-bullying 2010, dear colleague letter somebody in the audience over there actually asked me about this during the session so i hope you can talk about dear colleague letters. but it mentioned it in a footnote and only one. and it seems that probably ought to come up more often when we're giving directions to schools about how you deal with people eetion speech. the first amendment should get one mention in a footnote. i do, though, have one particularly huge objection to something you wrote in the bock on page 273 and i want to quote it exactly. quote, conservative groups including cato institute...unquote. in your book you talk about fighting words which is a kind of thing speech that is not practiced by the first amendment, katoa is a libertarian not conservative and i think that falls under fighting words. [laughter] which we're not going to call the police in this case baas it's -- >> i had not met any of you wonderful people -- [inaudible] >> fight averted. so it is right that public schools, though, as government entities are often way to incline to curb basic expression rights that is very clear in this book if you're not clear in that already. read the book, you will be. but we also i think have to be clear about two things and these are concerns i have about the book. one public schools are often as i think professor -- talked about they're not actually often thought of as sort of training places for us to work out difference or places i thought a great, quote, learning liberty by living it. i think that people tend to not look at dishools way. this is why this topic i think doesn't come up that much. and second, it concerns me the use of democracy and it's not just in your book but throughout any education fight or discussion or debate and get into a little bit more about why i think that use of the term is -- problematic. for the first point, though, i think that if you even read major advocate of public schools sort of historically, they weren't all that interested in again, learning liberty by living it as something that the school the were primary about. they were more about shaping people i think from above. so benjamin rush is a pretty well known founding father. big philadelphia. big in pennsylvania he was really and early advocate of widespread public schools, and he said you should create a public schools system that would, quote, render the mass of the people and there shall fit them by peaceful government and had talked about teaching -- common morals but it wasn't really about people themselves talking about their differences. it was more we'll take sort of elite notion of what a proper citizen is. make people sort of identity and there we won't have problem when is they're older an able to have liberty. of course man often called the father of the public schools or common schools or o god father and schools no matter what name you give them, he was probably the leading advocate for public schools in 1830s and 1840s and talked about public schools not to work out dimptions and talk about what made the difference but making them spofort -- sorts of similar sort of, you know, people who he would the same sort of elite views that he did. he tacked about defusing general intelligence too but it was about common morality and a common morality that i think he hopes was held by people a lot like him. if you go to era elle wood coverly who was had a well known public schools thinker and advocate, and again a lot, he and a lot of people who were like him didn't necessarily see the school as a place where you learn liberty. in fact, he said, quote, we should give up exceededly that all is equal and to have classes and employee is employee. wager is a wage earner and this was a pured of using i.q. tests at the side. your future is a factory and for a small percent in college and this again so it wasn't really orr o yented toward our public schools are where we learn to be citizens who had equal rights with everyone else and we work out our difference ourself os. certainly some public school advocates did want that and professor talked about john dewey he was much more in this mold of we have schools where kids would come together from different backgrounds they work on sort of projects together and learn to live together and sort of a different view than this kind of top down notion i think that was more a driver of public schooling. this idea that we should sort of shape people in a way to be kind of yiewsm and again, the discussion that seems to me of even those goals today has been, you know, 1th or o 6th or 7th 900th thanks to test scores that i think is what many cases we have reduced education to being. then the term democracy and used it interchangeably it is representative government to some people and kind of a leveling of people. it can -- people say it is a synonymous with individual liberty. sometimes for people that means majority rule often it means just in some way public control or public rule. and this notion that kind of drives a common belief when we get beyond the test score that public schools should basically respond to whatever the community, however, you drain that community wants. usually it's whoever is represented by that school board. and that leads to a fundamental clash about what the schools do. the individual rights versus the community values. a lot of this, you know, sociologist other people say it is about social reproduction so comuct says this is how we shape students to be part of our community. our society, and that means they have to share an harm and value age not do things that concern us. i think you can sew that mostly and frederick because nobody forgets for jesus so you remember that case. there's another you go back to colonial era another law that nobody forgets first law for public school was called old diluter satan act so if you can get jesus or satan in a name of a law people remember it. in any event, ultimately there's a fundamental problem especially if we talk about democratic control. a idea to have some sort of public control. it's inherently conflicting. conflicting cannot be escaped and now i'm going to do a shameless plug. not really that shameless. but we run something called public schools battle map it's about to go up behind me. i never rely on my own ability to operate o anything. there we go. so the public schools battle map the reason it's here is thats it's supposed to sort of illustrate people how many conflicts we have. not about how you do multiplication or which day to starts the school year or school day this is about value and con flect we have in public school and the reason it is conflict is because you have diverse people. their ideological, ethically diverse, religiously diverse but they're ultimately supporting one system and we're trying to get the system to -- to treat them or to educate them all. but one system can't teach what everybody wants. so you can see it can be deceptive to look at it so way more con flects than you see here. because a lot of those little pins bury other pins but if you pull out it would look less intense than you think had a lot of the places where live, no markers there. but a lot of places where there are people if you are don't see one eve these. as you talk about in the book what makes it to courts and often what makes it into the media is not every conflict that we have. probably it's a tip of the iceburg so this may just be the tip of the iceburg. but point here is to illustrate that we have conflicts over all sorts of issues and i think that best illustration maybe as if you think about library books and on page 101 professor ross's book, she notes that schools can choose to buy any book they want or not buy any book they want. for whatever reason, but if you get into the removal of a book, you say that a parent sayings well i don't care this book is appropriate in the middle school library or on my child's reading ligs. that becomes a constitutional issue of is this government censorship if you remove it and con create problems if they can favor speech for whatever reason wants so it deems this book is worthy of having kids read it or putting it in a library. this speech over here is not worthy of being in the library. and -- that is inherently conflicting so we have on the map just to illustrate the incredible power of the map, and user friendliness, there we go. is these are all of the book banning reading material conflicts we have. again, probably tip of the iceburg. but there are about 220 of these and this is collected over maybe ten years. starting in 2005, some of them reach farther back but it's things that i've seen in the news and pull out here. but that's inherently conflicting 220 of these. is it unjust ultimately compel support for those who choose not to pay for some say robert the chocolate war. you may not have read it but it's one was most challenged books or what about people say i don't think i should pay for it or i don't think my children should have to read. the adventures of huckleberry fin. or how do you balance it with people saying yes, these are very valuable books to read. government one way or another is making a decision what to read and whatnot to read and human origins creation versus evolution buts there's a problem that leads to inequality. and it creationists feel like they're second class citizens and discrimination and injecting something that we don't want government to do and can't create all of these people equally. couple of more small critiques while it is important to protect speech, and ting professor ben talked about this a little so not too much. but i think there's a good argument especially for teachers in the classroom every day for saying you've got to have a lot of discipline. even if it means people's speech goes away because it can be very difficult to teach where you need to teach to run a classroom if you don't have that and someone saying something that is perfectly legitimate view point, you can't have your 45 minutes to have a debate into something that you need to cover all material for educational purposes and a of course for testing purposes. you've always got it covered other, material. and finally ting that there's something important about shared norms and beliefs. i think research by james coleman and others have shown that private schools especially religious schools may outperform public schools because ultimately everyone who goes to that schoolceps the school's norm and values and that creates cohesion. you don't have to have as we see in public schools sort of rule by law and regulation. and often a muddling u through as you illustrate well in the book where you're not sure what to do and how do we decide on what policy to have or o how to treat this student when it will make some in the community angry and others won't look what i do i don't punish the student. in private school ises you agree to the handbook and that runs cohesively and it may be leads to better academic outcome o i don't think that this is slam dunk research. but there is some research to show this. and ting that humanly inhairnt conflict of public schools only way to truly treat people equally and protect them from government right, speech, religious right, et cetera is educational freedom ultimately attach money to students, not to specific schools. and give educators freedom to start the kinds of schools they want with the policies they want. with the curriculum they want and let them freely intrct an so somebody who wants maximum expression rights in school can choose a school like that. somebody who says no i want the no excuses, tough -- discipline you know maybe nots even speaking in cafeteria, kind of atmosphere they can choose that as well. and then if not happy and say i chose a school that doesn't have a strict anti-bullying policy, because i want maximum freedom but my child is getting bullied to the point i can't tolerate it you can also leave that school that as you point out in the a book problem with public schools there's no way you're a captive audience an ability to escape. and you could choose school for any other number of reasons not just these policies. so in that sort of case government wins a side on speech right or religious right or anything else. parents would make those decisions . and could even essentially go elsewhere if they're not happy. and important, crucial to understand that threats to freedom of speech and other freedoms and how to minimize them in public schools i think this book does an absolutely terrific job of talking about those issues talking about them diving about them and how to resolve them. and i especially likier chart had i'll put up in my office for something that i don't like. but it's more importantly to move to a system with those kinds of threats can be escaped by the people of the education system supposed serve. thank you. [applause] neil's remind me of freedom virtue and first amendment 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 the very different kind of approach to the first amendment that you can call conservative. that said, i think it might be worth emphasizing that this moment that most of the conservatives, liberal or almost all of the conservatives, liberals, and indeed libertarians that i know think "new york times" versus vol sullivan rightly decided to believe that they don't believe public figures should have heightened protection against liable and most of them and all three camps are frankly appalled to hear successful politicians suggest otherwise. and on that note, we shall go to our questions and answers. please wait -- raise your hand, wait to be called on. wait for the microphone so we can project this out through the world. and you know, announce your name and affiliation unless you think you have reasons to want to remain anonymous which i don't think anyone really does. and above all, please keep your comments in a form of a question if possible. this gentleman here. >> thank you. my name see brett hines and i'm with american university. when i wept to high school, i went to a private catholic high school so the debates around free speech there don't quite match had the same. but i was wondering if a personal experience that i've had with censorship by administration how that would play out in public schools. i was the editor of the school u newspaper's op-ed section and i was planning on publishing a editorial opposing the administration's position that had taken on homosexuality, and they demanded that they review the article before publishing it. and ultimately, they took several months with their review until i left the school coincidentally but i suppose my question is when it comes to school sponsored speech, how -- does the administration have the ability to review what students want to say? something like a school newspaper in a public school? >> absolutely. in a public school they would have, they can say we're reviewing everything before it comes out. they can sensor by eliminating article together and taking parts out and forcing you to rewrite it and a case about this doctrine of about a school newspaper that wanted to run actual news stories, not opinion pieces about teenage pregnancy in the school and about the impact of divorce on students. and the principal essentially got rid of two whole 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. but it within went further and t limit to hold technician in school newspapers. so while yours was labeled an opinion piece they might see either this was not a topic that was appropriate for a school sponsored newspaper, or that the view point was so provocative within the community that they -- you know i said earlier they can't really say they're going to sensor it because it's controversial. but that it might be too difficult for some of the younger students to handle. they would find some reason. where schools go wrong is they've gotten sort of lazy. they often don't even bother to come up with a reason. they just say can't publish it. then they'll lose but if they try they can usually comp with something. that's the sad news. i'm 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 student who run student publications and their had advisors. so i'll probably have some more stories after that meeting. >> the woman in the center in the back row. >> really being a modrator you don't know their names. >> sarah from american universities. my question for you guys is -- while it does seem to be a general problem across the united states, you think it should be addressed national lil or individual comments? >> that's a terrific question. as neil indicated local control is a part of our school school school boards, local superintendents, as far as i'm able to grasp newly crafted no child left behind is government stepping back from giving the kind of guidance they've been giving for the last ten years. but the constitutional law is federal law. so we really have to have an interplay between and understanding of first amendment law interpreted by federal courts and what communities do on the ground and one of the redgeses i make in any book is that just because the first amendment allows schools toen gauge in certain kinds of censorship or place inhibition on student speech doesn't mean that school districts have to use those powers. .. . >> until there is an incident, and once there is a censorship incident, quite understandably principles as glow boards tented dig in their heels rather than reconsider their policies. i suggest this is a good conversation to have before the play has been canceled or some other issue has arisen. >> other questions? down here to the right, we'll get both of these gentlemen. >> hello, michael, washington dc. i'm 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 do not know. have have you ever seen a principal say it? >> i have seen some administrators who profess to encourage controversial speech. there is an interesting study that was published in a book called controversy in the classroom. they actually show their cases in which classroom teachers are using controversy old talks and opinions as a padded logical for developing capacity or for sometimes writing, learning how to write, or for speech and bait purposes but in the regular classroom, not in the club, basically they show that generally speaking, this is a very large study that they did over five years with thousands of students that they later followed up with after they graduated to see the extent to which they remain active citizens. the extent to which they vote her participate. they do show that when you encourage and also model controversial speech in the classroom, for example when you live in a community where most people for example are very strong advocates of the second amendment and you come in, even if it is not your view as a teacher, you come in and say, here's 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 respect and all of these other capacity that allow you to be a good educated citizen is really strengthened by this. so you do see the practice from teachers and administrators, i i will not say this is the mainstream. >> i will just add that i think that schools and educators tend to avoid controversy all issues quite apart from the first amendment question because often the school, sometimes the school has a diverse community that it is working with and they are just trying to avoid conflicts that might give them a hard time. there is work by two political science and it came out a few years ago now, they have done subsequent work that surveyed biology teachers and they found that about 60 some% of biology teachers soft-pedal evolution or don't teach it at all, mainly because they are trying or they think they're trying to avoid getting anybody angry. a lot of avoiding controversy is not even about first amendment, it makes your life easier not to a great people. >> teacher kiss can also lose their job if parents get angry enough. even if they have ten year. if they stray from the viewpoint in the curriculum that the school board has chosen, they can get into a lot of trouble. >> david, some years ago i worked for the 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 besides the u.s. constitution. each state has its own constitution and each state can pass statewide laws. so i would like to know, has that happen, has that happened? have state courts relied on state constitutions? terrific question. yes, a number of states have enacted higher protections for student speech rights than are currently found in the federal doctrine from the courts. california basically says the material disruption standard applies to every kind of student speech in k-12, regardless of the supreme court precedents. they also a few years ago passed a law protecting the advisors to icicle publications. going back to your question about your op-ed piece in your advisor in california fights to protect the rights of the student journalist, the statute says they can be to start discharge for that. they're trying to get more states to pass protective laws for journalists. a number of states came close to doing it but experience vetoes from governors. one case involved students in a suburb of chicago are very good high school where the newspaper discovered that staff of the school district had -- and they had dug out the travel receipts and showed they stayed more days in the hotels in the meeting went on and things like that. they were not allowed to publish it in the school newspaper, but that chicago tribune found it met all of the standards for journalist investigations and published it. after that, that, the illinois legislature passed a student writes statute to cover student journalist and that governor vetoed it. pretty shameful. but that is another place going back to the local or national problem. >> the gentleman right here. >> thank you i'm wondering whether your scholarship touches on this issue i have been following the case that i think is progressing now, there is a football coach in the state of washington who over the course of his career had at the end of games, gone to the center of the field and prayed by himself. which apparently did not raise a problem, some of the kids on the team then said coach, what what are you doing? well i'm praying. can we join you? of course, it's a free country. which whenever people say that that's wrong. so as more and more people joined him for the prayer he then was suspended and i think that case is ongoing. i'm wondering if any of your scholarship and research touches on that issue. it only became a problem when the 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 judges threw up their hands and say this is confusing to me, i i don't how to use it. which, they do do preside over antitrust and other difficult cases but trying to make it clear, next to that the condition of the establishment clause is in enormous disarray because the supreme court has not relied on a certain old set of doctrine and hasn't really replaced it with anything else. so individual justices have their own approaches. the lower the lower courts don't have much guidance. so teachers and principals are confused about what amounts to an establishment clause violation. how does this relate to free speech for students, they too often think that students express religious abuse like praying over the sandwich i brought from home and not trying to get other students to join in that the student will be accused of an establishment clause violation for allowing this to take place. that is clearly not true. the supreme court has repeatedly said that students have th right to pray in school. again, as. again, as long as they are not disrupting class. and, to ask rest free, through speech the read religious viewpoints to reach other. the problem is when you have a teacher encouraging people than we have a question about is this participation really voluntary. the laws pretty clear there should be from this students themselves. it's very different if a group of students they we notice the coaches praying in the middle of the field and we would like to do that too. but they do it separately, when the team members whose lives are pretty much in charge of a lot of the time and a very important authority figure to you, you want to join me, i think that is a closer question. certainly has they said we are going to do this as a team, that's forbidden. >> the gentleman in the center and then will have a couple more and then we have to wrap up. >> i'm jacob marks with american university. if a teacher is hospitalized due to an incident at the high school and is assaulted in the process and that's how she ends up in the hospital and she posts on facebook that she's in the hospital and then she gets fired because of it, is that violating her first amendment rights. >> i'm sorry,. >> and the teacher was assaulted in an incident in the school and was hospitalized because of it. while in the hospital she posted it on social media site that she was in the hospital. can she be fired for that? >> the law will be different depending on where she lives, because the appellate courts are not entirely in agreement. but, there are some limits to what public employees, including teachers can say about their work. so a lot would depend on whether this was considered a matter of public concern or not. hypothetically, if she were attacked by a student, or by the school principal, that probably, to me would be a matter of public concern. but if it was something else, then she probably could be. it's very hard to say without knowing more about what took place. >> okay were at our last question. >> isn't this whole issue really more not about free expression but property rights? isn't public public property the original sin and its whole debate where few do not have public property and public school the government would not be in the position to be the arbiter of speech? >> well i have have never put it that way. i'm not an expert on property law or anything like that. i do think that that is certainly a problem. if the government were providing schools than most of these issues would go away. now there are a lot of arguments as to why the government provides school, i think what is important is we do need to look i think somewhat below the conflicts themselves and say, what may be causing us to have all of these conflicts. the reality is, i hope we moved to school choice, we are moving to school choice to some extent and that means that means private schools because even charter schools understand they are public schools. they're they're still bound by all of this. and while we have made great progress we are nowhere near most people going to private schools. these are very real issues that need to be dealt with. until we can reach a deal that everybody, what i think is ideal to the private school because then you and the educators essentially agree on what the rules will be. that's the best way to balance lots of competing goods, one where people put different values on different things. also were some things can't coexist together. you can can have a school that is both nonreligious and that teachers say religious doctrine which a lot of people want. in terms of whether or not it is a public property issue, at least i've never framed it that way. >> went the professor ross and i met in january on the panel, at one point she said to me, outside of the first amendment i disagree with a lot of things that cato advocates. now course i was perplexed because having all the answers, i i am always perplexed when people disagree with me. but there is a point here that is important. we don't disagree about the first amendment and the importance of the first amendment despite the fact that we disagree about many policy issues. in fact i think that's an important thing to remember in a context like this when at a time when there's a polarization, and partisanship and lots of conflicts. it is important important that people across parties and across ideologies remain committed and unified to a strong first amendment protection. i think think this book, lessons and censorship, how schools some wert to the student's first amendment right to my think is an important contribution to the building that into making us appreciate the importance of the first amendment, i like to thank professor ross were coming today, are coming down on a difficult day to be with us here and my colleague neil for appearing on the panel. most of all, russ must really care about the first amendment to come out today and i appreciate each of you coming. let's go have lunch and talk more about this. the lunch will be held on the second level at the george m yeager conference center which is up the spiral staircase in front of the building. restrooms on the second floor on the way to lunch. look for the yellow wall. you can purchase your own copy of the book up there. thank you very much. [applause]. [inaudible] [inaudible conversation] [inaudible conversation] >> when i tune in on the weekends usually its author sharing their

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