he wrote the first ten amendments that were introduced into congress and was a beyond that more than just the author of them or the person who wrote them and believed in them. i should say that in part of that of valuable institute here in washington has designated his birthday national freedom of information day, which is we are celebrating here today along with the publication of his book. i can't help, however, but refer to what i thought was an interesting and useful from madison on this very topic, the first amendment freedom and freedom of speech. madison wrote, quote, a popular government without popular information or the means of inquiring it is but a prologue to a farce or a tragedy or perhaps both. knowledge will forever govern ignore reins and people who mean to be their own governors must arm themselveses with the power which knowledge gives, unquote. and we will continue in this as we go down through the history of the united states that knowledge will govern ignorance and the first amendment is essential means to making the whole system work. madison interestingly the first amendment center designated him as a list of first person to go into the freedom of information act hall of fame, which is interesting. he's kind of hank eron, i guess. [laughter] >> act hall of fame. katherine j. ross is a law professor at george washington university and during the current academic year is a visiting scholar at the harvard graduate scooción -- school education. this was the best book by concurring opinions first amendment news. professor ross specializes in constitutional law with a particular emphasis as you might guess in the first amendment but also in family law and legal and policy issues concerning children. she has testified before congress. this is not, however, the first appearance in a cato form. she was a commentator in january on a panel we had and she was a participant in a cato unbound which i recommend to everyone here in general and particular a month or two you can find it at cato.org. let me also say that while i'm discussing that, if you are following on twitter, please use the #catoevents. on #catoevents. bar association committee and presented report of america's children at risk to the white house. she served in many ways at the highest level in american bar association and on the other boards of a family court's review and family law quarterly, she's the distinguished advocate of the first amendment and we are happy to welcome her here today to the cato institute and talk about her book. katheryn. [applause] >> thank you to all of you for racing the streets of washington today and sunny equivalent of a snow day we have ever seen. i am going to begin by reading the opening passage from my book. you lose all constitutional rights once you enter a school building, a school official in new york proclaimed in the spring of 2012, you're not allowed to do this she asserted as she confiscated flyers from a student who was protesting her friend's five-day suspension laying sensorship upon censorship the episode had a sur real quality, the student who prompted the pamphlets had been punished to opposition to bullying but in the way the school deemed inappropriate. the seizure was as clueless as it was sur real because the first amendment protects speech rights of public school students in grades k-12. and yet, schools all over the country regularly sensor constitutional speech by students and judges often let them get away wit. when i use censorship throughout i'm talking about stopping speech before it happens and punishing it afterwards. schools punish students including national politics and the right of lgbt persons, guns, abortion and more, they suspended a 6-year-old who called a classmate a poopoo head . hi, my name is mb and she shared her personal experience that finding christ was like finding a lost dog. in the upper grades schools suspended two boys who were political t-shirts one praising the marines. i'm sorry, john, is this -- mechanical problem here. is this not on? maybe i have to do it up here. okay. we should have practiced. i thought this was all set up. i'm just trying to figure out, can we pause here, i'm so sorry. no. this is awful. i have a beautiful t-shirt to show you. okay. so one was praising the marines and their gun and another boy was criticizing president george w. bush as a substance-abusing, draft-dodging chicken hawk and schools increasing authority to punish students for what they say off campus on their own time,ia subject that i will return at the end of the comments. constitution protects all as well as speech that adults might regard as worthless but the constitution protects worthless as well as worthwhile speech. and when we talk about students, we are also often talking about adolescent humor that's simply beyond adult comprehension. [laughter] >> children are specially likely to get in trouble if somebody else's parent finds speech controversial, which really means they say it's offensive because i disagree with it but con trough -- controversial is exactly what the speech is designed to protect. the powerpoint has just disappeared entirely but, okay. thank you. students are specially -- i'm sorry. i should never use powerpoint. [laughter] >> the heart of the problem is that too many principals and school board members don't know or don't understand the limits the constitution places to control what students say while others disregard the law does they don't like it. as i worked in the book, almost everybody i talked to informally say i have a censorship story either from days in school or from their children. long-time teachers told me that they had no idea that students had first amendment rights and they asked where i had come up with such a creative notion. so in proceeding, i have to begin by giving you a world-win tour of first amendment doctrine as it applies to students and thenly turn some stories that capture some of the particular contemporary dilemmas, the speech clause of the first amendment is concise, it says congress shall make no law by bridging the freedom of speech, as interpreted this means that the government and anyone acting on behalf of the government may not silence speech because of its content or viewpoint. school districts and every one who works for them from principals to teachers to school bus drivers are the government when we talk about students' freedom to speak. my research and comments are limit today public schools because the first amendment doesn't apply to independent schools whether secular or religious, they're not the government. the supreme court first took up the issue of students rights in 1943 in one of the earliest cases in which upheld the speech rights of any individual. barne, but it was not litigated or interpreted as a religion case. the consequences today of speaking up and being finished can also be dire, many students enter the school to prison popline as a result of being suspended, expelled or sent to an alternative school for troubled students after they engaged in protective speech. so just like the gentlemen -- jehova witnesses the consequence are stark . a concept we today call the rule against compelled speech. the court emphasized the constitutional limits on the state course of powers whether exercised by, quote, village tyrants or by the federal government. and underscored that the first amendment was design today protect nonconformist of all strike. the court particularly focused on schools because the case involved two elementary schoolgirls. it said because schools are educating the young for citizenship, they must scrupulously protect individual rights if we are not to strangle the free mind at its source and to teach you to discount important principles of government as near platitudes. decades later the court returned to student speech and began to carve out a special way of assessing claims that schools had illegally centered students expression. the first iconic supreme court case in modern times and here i'm just listing the cases, i don't expect you to retain all of them but so that you don't wonder when i say the names. the first modern case, decided in 1969 at the height of the vietnam war. they held that schools had violated the first amendment by suspending students that wore black armed bands in order to protest the war. court took into account all of the things society expects schools to accomplish specially the importance of educating young for citizenship and crafted a special test that gave schools more leeway to restrict speech than the government has at world at large. could not sensor school and in short,ly refer to this as the material disruption test. as the court became more conservative under every new chief justice it gradually carved out expectings to the material disruption test in three later cases. these gave schools more and more power to censor student speech but did not extinguish or speech that advocates the use of illegal substances which you may recognize as the bunking -- jesus case. in 1988 decision that created a special category of speech the court labeled school sponsored. if speech and school sponsored is treating -- it's created as school is speaking and the school is not even though the speech originates with the student in such places as high school papers or magazines but also much further. to be school sponsored the speech must appear to bear the schools and in justice's words own speech so that a reasonable person would think the school had approved it. this reaches virtually all expression in student publications, performances, extra curricular activities and more. stripping students of their voices. schools try their best to avoid material-disruption standard because it's hard to satisfy even when children mutter to themselves thinking no one can hear them. some schools have begun to assert that what students say in the classroom and in written assignments handed to the teacher is school sponsored expression though no one in their right mind could think that the school had a chance to understand it and approve it before the students submitted it or uttered it. this approach limit it is range of viewpoints in our classrooms specially teachers in jurisdictions are not allowed to disagree with the text that the school board has selected and there are many disputes about what viewpoints should be part of the official curriculum. i won't go into them but think about disputes over thousand teach such subject as biology including evolution and courses on sex ed and even american history and slavery. let me briefly anticipate some concerns about giving students too much freedom in hool, recognizing students constitutional rights will not undermine education at all. there are two concerns, it's going to underline education or it's going 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 beolerated. as for the second safety, schools may always clamp on speech that's illegal outside of school, true threats, 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 threatens violence or serious disruption but does not rise to the level of a true threat 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 -- the students own, not prodrug or school sponsored or within that apply correct tests because each of these has a slightly different formulation. i understand that it is really hard for teachers and principals in the spur of the moment when they're worried to try to understand the use of complex set of standards but they're also not adequately prepared to do that. and so i provide a chart in the book and this is the color version that can be ordered and placed in a principal's office like the maneuver poster, what do i do now, 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 incomplete legal advice. i need to slow down and sensor it but only if i have a reason and the fact that someone finds it offensive or might be controversial is not a legitimate reason under the first amendment but prodrug or inciting violence or inflammatory or defamatory, i can censor and punish it at my discretion. so now how does this all work? most of the speech that's at the core of contemporary debates, sexting and bullying expression, all falls under speech and disrupted by text. let me begin, this is a poster that a high school senior named sarra bowman who had never been in trouble, she was a good student made during lunch hour and posted in the corridor, about 15 minutes later before students had seen it they were on the cafeteria, the janitor saw it and took sar ark h to the principal's office. who killed my dog, he was my best friend. did you kill my dog? did you kill my dog? if you don't tell me who killed my dog,ly kill you. she had taken a course during the summer that taught her about conceptual art design today capture fictional people. she explained this and the principal believed her but said i have to suspend you for five days. subsequently the school board got involved and decided that they 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 was able to return back to school and complete school year. there was simply no reason to anticipate disruption specially because even if other students might have been upset, had they seen the poster, nobody saw it. so there was no cause for concern at all. in a similar case involving a work of fiction written fiction an appellate judge rebuked fellow panelists for allowing the school to punish the writer. he said, after today students will have to hide their art work. they lost their speech rights. if someone finds their art disturbing, they can be punished. school officials may now subordinate students to a policy of making high schools cozy places like day care centers where no one made be made to feel uncomfortable by the knowledge of others that 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's been going on in today's college campuses about students who think that their comfort level this is part of a connection that i see, though, i have not written about it but it's part of the cato 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 people based on categories like race, ethnicity, sexual identity and more go further talking about physical appearance like short people like me or even something much harder to measure, values. students have even been prevented from expressing views that undermine respect for a group even though they weren't actively aiming their comments at the group or meaning to be disparaging. and i open by saying that schools censor both sides of a lot of debates and many, many schools have wrongly prevented students from forming chapters of the gay, straight alliance or similar groups or from wearing teachers in which students proclaim sexual identity. here is the flip side in the story. roman catholic daniel resisted a lesson intolerance on spirit day, a national day of recognition for lgbt teens who 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 or only of competing ideas, a federal judge later comment that had the teacher had modeled intolerance of student. 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 schools to regulate hurtful speech in school or outside of school. the answer is the constitution does not permit that. the u.s. is very unusual. justice cagen while still law professor discussed university hate speech codes and concluded that a narrow-speech code and discriminatory harassment cannot survive constitutional scrutiny in the united states. and justice alito pointed out there's no right to be protected from hurtful words, free speech prin cip else conflict with efforts to reduce the harm that disparaging speech can cause. so this is the crowning paradox. our constitution a liberal democracy rather than simply tolerating each other, must tolerate the expression of intolerance. that means that the state can't use its coercive powers to punish a speech that offends bad goal. the speech cause did you want leave educators without any recourse. schools can teach empathy and 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 student speech rights provide a training ground for exercising rights responsible being, for respond to go hurtful speech with more and better speech as the first amendment generally requires and looks for and for learning how to have substantive conflicts about real issues without going too far and cutting off conversation. what i call learning liberty by living it. 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 students have said off campus, usually online, and off school property, schools increasingly claim the power track and punish what students say 24/7. some school districts have even highered retired law enforcement officers to keep track of their students online communication from their own computers from their home. remember that the whole rationale for giving schools more power to restrict speech than the government has than the world at large is the special environment and purpose of the public schools or in campus, but schools say they can violate speech that is fully protected by the constitution outside of school if it violates the schools' rule of decorum. and if we do that, one of the school speech standards apply not the normal scrutiny test. unfortunately the schools didn't come up with 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 law is unsettled and is likely to remain so because the supreme court just last week denied in a case in which all 16 judges on the fifth circuit sitting to review a panel decision went further than any other appellate court in allowing schools to discipline a student for off-campus discipline speech. this is a senior, african-american student who wrote and recorded a rap song and posted it on youtube in which she accused -- coaches of school of sexually harassing four girls who had talked to him about the problem and no one ever argued in court or even asserted outside of court that this was not true, no one said including the coaches that this had never happened, but the school said this is harassment of school personnel which the code doesn't allow. now, these were gangster raply ricks, they used the fictional violence as killer mike indicated in a brief to the supreme court urging them to grant and the petition -- the brief on the petition informs the case that killer mike himself has not actually ever killed anyone. this leaves the law of off-campus speech. a lot fends if you live in texas or mississippi or if you live in washington, d.c. or boston. but it is well known from reading these cases that criticisms of school staff members are a very likely kind of speech to get a student in trouble, schools don't like that, they reach out and do serious punishments. teller belle was sent to a school for troubled kids and similar things have happened to kids that have posted add ol ebbingent humor my space pages, making fun of administrator, or that teachers, i hate ms. phelps, but freedom of speech protect including authorities in power. that is a core principal of democracy and one that should be honored in our school systems. also a conflict between what educators and what's acceptable for what their students say and do from their home. participants also punish if their speech was rude or crude, but they sue the school to get the coercive discipline of the state off their child's permanent record because that can have a profund impact on the child's life. and if i have time i will tell you one more story. thank you. it's a great story. my last example, this was an on-campus ininquisition, a private online conversations between two middle school students from their homes in rural miswaka, minnesota, the conversation had something to do with sex, we never learned its content. it was conducted on the internet off school grounds and off school hours, when school officials learned about it from the family of the boy that initiated the conversation, they went after the girl who responded to his invitation to talk about sex. and they opened her laptop and demanded her id's and passwords from all the accounts. they didn't call her mother and interrogated her with the police present and opened all her accounts, she was sobbing and they found a facebook sex quiz which she said, i thought it was fun and funny and they condemned her for doing this online quiz as well as for her personal correspondence. it 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 hold everything that is in a person's mind, that was not as clear at the time but it is clear now. these intrusions into off-campus expression that the first amendment protects teach young people the opposite lesson of the lesson justice jackson and barnette we should be teaching. they teach to dismiss as meaningless the right that is we have. they teach young people that there's no place to hide from a government, officials are immune from criticism undermining every core principle of our liberal democratic state. i look forward to responses and to the questions. [applause] >> i ones got dragged into the principal's office for as i recall talking inappropriately during the reading of the lord's player. now, given that at the point the school -- a public school and the school officials were involved in violating another part of the first of it, but in retrospect it was my finest hour. it didn't really seem like that at the time. [laughter] >> so our first commentator who has traveled from philadelphia today to be with us for this book form and we thank her for that. dr. ben received doctorate in political philosophy from university and awarded two successive university president's postdoctoral grants and was associate for human values at princeton university. while in israel she joint in a palestinian-israeli committee peace center working toward educational. participating in the women faculty forum at, the telavev university. her research focuses on citizenship education, aspects of educational and social policy and social effects of war. her areas of expertise include philosophy of education and political philosophy, her books include citizenship under fire, democratic education in times of conflict, in 2006 and tough choices, landscape to choice both of which appeared with princeton university press. welcome to the cato institute for your first appearance. [applause] >> thank you, john, and katherine and thank you for the invitation for my first appearance at cato and for the opportunity to discuss this important book. i've been thinking and studying civic education for quite a while up until now and i mention that two other things that inform my reading of this book is my current work with preparing novist teachers 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 -- and other legal and social expectations that we have of practitioners in the field of education and i also mention that i'm serving currently as the chair of the committee on open expression at the university of pennsylvania so definitely i'm encountering a lot of these matters in the college context. but today focusing on this book, i would like to basically just raise two points. one flos -- philosophical and other more practical point. first one, the book exposes contradicting foundations on which we rest our expectations of schools of educating for democracy very broadly beyond free speech. schools are expect today reflect principles such as free speech. given that they are working with children and youth they are also expect today control their students' behaviors in way that is would be recognized and unconstitutional in other context. right, we have this conflicting demand which is basically the starting point, i think, a lot of the litigation that the book discusses. in various ways, we expect schools to operate in less than fully democratic ways, we being society and administrators the way they see their jobs and sometimes our actual legal practices such as attendance laws, 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 all speech and when it comes to children and particularly youth, it's probably just even a smaller subset, right, so we have a lot of what we have worthless speech as you turn. even if we think about speech only in the context of speech as expressing core values, schools are meant to reflect the reality of value pluralism in society and that's to allow for a variety of views to be heard and considered, and this is not only to preserve rights but also to sustain the school as a vibrant public fear and that was the key message, i think, coming from tinker, on the other hand, as we think about school as training grounds for democracy rather than as a micro cause of democracy, then we more readily accept the need to limit, redirect and even silent speech. when they reasonably expect to school more strongly guide students including limiting speech rights and other rights if we think students are further away from being ready to take on their civic roles. so our view of schools as democratic on the one hand and training grounds of democracy for the other depend in tush on our views and, of course, most importantly the court's view of children and youth. are they many adults who should practice their civic roles in realistic setting as possible or convertly are they, and i quote, barbarian who need to be tamed and trained so they can fit and establish social order? this book offers framework for reforming currently legal approaches or pushing them in a certain direction and informing practice in a way that expands student speech right. and in this case, placed in the camp children as junior citizens and schools as reflection of the democratic public fear, and this is very close to the view which has a long history, of course, of american public school and very worthy and well established one but it is worth noting that both in the theory and in the practice of education this view pretty much is considered to have lost to the other view, so it seems to be peripheral that professor ross suggested and i want to present and even more extreme version of right now. this leads to my second comment. now i have a more practical comment about the book. in the field of practice the speech rights of students are violated more often than justified or if we take as serious as we should both the letter and tinker and of this book more an legally justified. if, indeed, schools have, and i quote, a uniquely important role in training young people to assume, it is crucial that not only as scholars and protectors of the law but also as citizens we train at the more common practices in contemporary schools that some of us even as the 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, there are many newer practices in schools that we should be aware of and concerned about to the extent that we care as we should about student speech rights. so many schools today are taking the entire event by policing student speech to the extent that it doesn't exist within the school wall. the discussion of student speech rights in this important book rest on the existence of speech x, a student speaks or holds a banner, a practitionner responds and suspending them and the court needs to decide whether, in fact, the speech act should have been protected taking into account the content of the speech as we've seen and the context in which the speech took place whether within the school or sometimes outside the school as we heard. it was clear that the censorship cannot easily be realized in today's education policy environment. most i'm concerned by the question to what extent can the speech itself 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 contemporary schools that have been doing research in the past years mostly in philadelphia, in a growing number of schools, specially those serving low-income and minority students, students spend days, weeks and months without ever being allowed to use their voices. classroom activityies with the teacher at the center of the activity and the student expected to follow her lead and respond only when spoken to and only with the response that is written in the teacher's guide. usually there's a timer on the teacher's powerpoint, usually 45 seconds and you get a very limited question such as how you would you solve this equation and what will you do if you were malcolm x and you get two minutes to discuss with your friends, it's a guided discussion and it's back to listening to the teacher. i have seen also numerous cases of compelled speech in this context particularly when students are -- sorry, teachers are using calls or chants to draw the student's attention to make sure they are focusing. for example, the teacher would call smart and all the students would have to respond, scholars, and whatever it might be, first, amendment, and you would get some kind of call, 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 with suspension. outside these compelled speeches and outside the debates that i just described to you, the rest of the school day is silent including the hallways and most notably and depressingly for me the lunchroom. speaking to the person next to you at lunch is a privilege that has to be earned and weeks can past in which school kindergarten to 12th grade are required to have silent lunches. students march the hallway single file with one hand covering their mouth so they remember not to speak. the use of one's voice including whispering, laughing and, again, quite depressingly sighing, this is considering to be a violation of school behavior code and met with an automatic punitive response. the reasoning mind the practice is the reasonable believe that students must obtain a high-level of academic per formance in -- performance and also the less reasonable belief that this can only be achieved if they're monitored and limited to these extreme extent and there is one sentence that shows aligning with this view. judges, this is in relation to jesús case, judges have read about violence and subpar learning environments to justify restricting civil liberties where schools are failing, right, so where we have lower-performing school, we have a stronger reasoning or supposed justification to limit students' free speech right. powerful metaphor who silent speech right. and as we see throughout this book, their tierney is expressed in their effort of speech most notably by defining various speech acts as unacceptable. >> on the other hand youthful speech required right within the context of the school. i would encourage those of us who care about student speech rights to consider also those increasingly common practices which may be harder to address within our current legal framework but which nonetheless stand in the way of a democratic education for citizenship and would clearly not be supported by a learning liberty framework that we just heard about from professor ross. to be clear, i cold heartedly agree that equal opportunity is for democracy for reasons that i will not elaborate here. it's vital that we recognize, it's like reading or math, citizenship is learned by doing and the skills would not evolve as a side effect of maturity of academic obtainment. it's essential for democracy which aims to sustain a public sphere by democratic prin cip -- principle that supports gradual development of skills requires focus on the protection of democratic school environments in which students free speech and other basic rights are recognized and celebrated. thank you. [applause] >> thank you very much. you know, the cato institute really depends on the first amendment in a lot of ways. it's part of our strategy right from the beginning. always part of cato outsider status, advocating ideas from '85 and '95 that really hadn't gained traction, so we we wanted to get people with dominant views to debate us. the first amendment was essential to our idea of how we became part of the national conversation. we always want to make sure that that the cato position was enunciated and defended and today professor ross, i thought about it assetting up the panel be part of the cato position and part of the cato advocates for the libertarian position on this and we also do education and has education an an nexus, is, in fact, the director of cato center of educational freedom. prior to arriving at cato he taught high school english and maybe he will have stories for us and was a freelance reporter in suburban new jersey. he was policy analyst at the center for education reform, he's the authored of feds in the classroom, how the government corrupts and compromises education and writings have appeared in all the leading publications. he's been on c-span before, crn nn, fox and numerous radio programs. he holds an undergraduate degree from georgetown, master's degree from political science and ph.d for public policy. welcome, niel. [applause] >> thank you all very much and specially professor roz thank you for writing this book. i think, you know, doing education policy all of the time that threats to basic rights in public school is not a subject that gets nearly enough attention, all sorts of questions about what we teach, how we teach it and how kids interact, those are all sort of been pushed aside with a session over test scores, everything is what is the test scores, what is the test scores, fbi way, what are the test scores, and these are topics that we absolutely need to talk about. now, i think there may be some collision between people who run schools and the public transportation system in dc trying to keep people away from today's event by closing down viently the metro but we will see. [laughter] >> within the book i appreciate the discussion of dangerous federal overreach, i have done work on the federal role and education but the specially the antibullying 2010 dear colleague letter and someone in the audience asked me before the event. i hope you can talk about dear-colleague letters. it was particularly striking that you only mention first amendment in the footnote and only once and it seems that that ought to come up more often when given direction of how to deal with people's speech. i do have a huge objection in the book and i want to quote it exactly. conservative groups including the cato institute, dot, dot, dot, unquote. in your book you talk about fighting words which the kind of speech that's not protected by the first amendment. [laughter] >> cato is lib tarrian and not conservative and that falls under fighting words which i'm not going to call the police in this case k but it's an important distinction. >> i had not met any of you wonderful people at that point in my life. [laughter] >> fight overted. [laughter] >> i think it's absolutely right that public school and government entities are often way too incluin to curve basic ebbing presentation rights. i think that's very clear in this book. you will be. but we have to be clear about two things and these are concerns i have about the book. public schools are often as -- as i think professor talked about, they're not actually often thought of a training places for us to work at our differences or as you say places -- i thought that was a great quote, living liberty by living it. this is why the topic, i think, doesn't come up that much. and second, it concerns me the use of the term democracy, not just in your book but throughout any education fight -- discussion or debate and we will get into why i think the use of the term is problematic, for the first point, though, i think that if you even read the major advocates of public schools historically, they weren't all that interested in, again, learning liberty by living it as something that the schools were primarily about. they were more about shaping people, i think, from above. so benjamin is a well known founding father, big in philadelphia and pennsylvania, he was really an early advocate of widespread public schooling and said you should create a public schooling system that would, quote, render the mass of the people and fit them for easily for uniform and peaceable government. he talks about teaching sort of common morales. it wasn't people sort of themselves are talking about differences, it was more we will take sort of an elite notion of what a proper citizen is, make people sort of identical and we won't have problems when they're older and able to have liberty. father of the public schools or common schools and no matter what name you give them he was advocate for public school in 1830's and 1840's and he talked about public people. making them sort of similar, sort of, you know, people who held the same sort of elite views that he did. he talked about defusing general intelligence too but it was really about common morality and it was a common morality that i think he hoped was held by people a lot like him. if you go -- we will go just to the progressive era, the turn of the 20th century, one more example, well known thinker and advocate. a lot -- he and a lot of people that were like him didn't necessarily see the schools where you learned liberty. in fact, he said, quote, we should give up democratic idea that all are equal and our society is classes, the wage remains a wage earner, this was the period of using iq tests to decide, well, your future is in a factory and maybe for a small percent your future is in college. this wasn't really oriented to public schools who have equal rights with every one else and we work out our differences ourselves. certainly some advocates did want that and professor talked about john dewy, he was much more as we have schools that kids would come together with different backgrounds and would learn to live together. it's sort of a different view that this kind of top-down notion, i think was more a driver of public schooling. this idea that we sort of shape people in a way to be kind of quin -- uniformed. the discussion of those goals today have been fifth or sixth or 900th priority next to test scores, test scores. that is what many cases have reduced education to being. then just talk a little bit about the term democracy and this comes up a lot. it's very important how we use it. it's often sort of used interchangeably. it can mean government to some people, leveling of some people. sometimes for people it means majority rule, often it means some way public control or public rule. in this latter notion it drives a common belief when we get beyond test scores that public schools should basically respond to whatever the community, however you define the community wants, usually who is being 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, sociology. so the community says, this is how we shape students to be part of our community, our society and that means they have to share values and not do things that concern us. i think you can see that in frederick, maybe because nobody forgets bombs hit for jesus. you remember that case. you go back to colonial era, first law for public schools, >> in any event, ultimately there's a fundamental problem specially if we talk about democratic control. .. >> no markers there. but a lot of places where there are people if you "don't ask, don't tell" -- don't see one of these. what make 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 the point here is to illustrate that we're constantly having conflict over all sorts of issues. i think best illustration maybe if you think about library booings and page 121 she notes that schools can hews to buy any book they want or not buy any book they want. for whatever reason but as you got into the removal of the book you say that a parent say i don't think this book is appropriate in the middle school library or under my child's list that becomes constitutional and government censorship if you remove it and should the goth be government be able to favor speech so it deems this book is worthy of having kids read it or in a library. this book over here, this speech over here is not worthy of being in the library. and that is inherently conflict. ual so we have on the map the incredible power was map and user friendliness is this is book banning reading material complex so there are 220 of these and over o ten years that you started in 2005, some of them reached further back. but it's thingings that i see in the news and pull out here but conflicting. 20 of these and unjust compel support for those who choose not to fair the chocolate war. you may not have read it but one of the most challenge books or what about people who say i don't think i should pay or for it or o i don't think my children should read adventure of huckleberry fen and balance it with people saying these are very valuable books to read. governments is making a decision on what to read and human origin. creation versus eve louis but there's a problem that leads to inequality so you teach evolution alone automatically creationists feel like they're second lass citizens and religious discrimination but you add creationism and you add religion so you can't treat all of these people equally. also i think couple of more small critiques krowcially important to protect the speech. and i think that professor ben talked about this a little. soy won't go into it too much by i think there's a good argument especially for people in the classroom every day for saying, you've got to have a lot of discipline. even if it means people speech goes away because it can be difficult to run a classroom if you don't have that. and even if someone is saying something that is perfectly legitimate view point, you can't have your 45 minutes devolve into a debate about something when you need to cover other materials for educational purposes and, of course, or for testing purposes you have it covered other material, and finally i think there's something important about shared norm and beliefs. i think research by james coleman and others have shown is that private schools especially religious schools may, in fact, outperform public schools because ultimately everyone who goes to that school accepting the cool norm and values that creates cohesion. you don't have to have as we see in public schools sort of rule by law and regulation, and often muddling through as you illustrate very well in the book that not sure what to do. how do we decide on what policy to have or how to treat this student when we know it will make some people in the community angry and others won't like what i do i punish the student and in private schooling, everybody you agree bisquely what the handbook says an that enables to run coherently and cohesively and leads to better academic outcome. i don't think that this is slam dunk research. but there is some research to show this. and i think that given the inherent conflict of public schooling only way to truly treat people equally and protect them from government on their right is to ill state itself is educational freedom. attach money to students, not to specific schools, and give educators freedom to start the kinds of schools they want with policy they want and curriculum they want and let those people freely interact and so somebody whopghts maximum expression rights in the school can choose a school like that and no excuses, tough -- discipline you know maybe not even speaking in the cafeteria, kind of atmosphere, they can choose that as well. and then if you're not happy, if you say i chose a school that doesn't have a strict anti-bullying policy, because i want maximum freedom but my child is bullied to the point i can't tolerate it, you can lead that school you point out in the book that's a problem with public school in a way you're a captive audience with an ability to escape. and you could choose schools for any other number of reasons not just these policies. so in that sort of case, government wins a side on speech rights, religious rights or anything else, parents would make those decisions, and could even as i said go elsewhere if they're unhappy. so i think it's absolutely important, crucial to understand the threats to freedom of speech and other freedoms and how to minimize them in public schools i think this book does a absolutely terrific job of talking about those issues, diving into them and talking about how to resolve them. i especially like your chart when i'm going to put up in my office for anybody who talks about stuff i don't like. but i think it's even more important ultimately to move to a system in which those kinds of threats can be escaped by the people that education systems supposed to serve. thank you. [applause] neil's comment remoonedded me of my friend walter burns in the first amendment which goes back to the 1950s, you might read it, you will not the sense that it is a libertarian book it is indeed a different approach to call conservative that said i think it might be worth inpa emphasizing at the moment liberals or conservative liberals and indeed libertarians that i know think "new york times" versus sullivan rightly decided which is to say they don't believe that public figures should have height ndz protection against liable and their -- most of them in all three i think frankly are 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 to the world. and you know, announce your name and affiliation unless you think you have reasons you want to remain knolls which i don't think anyone really does, and above all please keep your comments in the form of a question if possible. this gentleman here. thank you. >> my name is brett hines with american university when i went to high school, i went to a private catholic high school, so the debates around free speech there don't quite match the same. but i was wondering if a personal experience i've had how that would play out in public schools. i was the editor of the school newspapers on o ed section and i was planning on publishing a editorial opposing the administration's position that a test that had taken on homosexually and they demanded they review the arm before publishing it and ultimately they took several months with the view i left the school coincidentally and how does the administration have the ability to review what students want to say in 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. then sec cor it by eliminating article by portion you to rewrite it and taking parts out and, in fact, the case that created this doctrine was 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 principle essentially got rid of two whole pages of the newspaper because he wanted it to get rid of those two articlessed a last minute and court said that was okay. but it went further than limit its holding to school newspapers. so while your was labeled an opinion piece they might say either this was not a topic that was proarpght appropriate pr a school sponsored newspaper or that 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. themed find some reason. where schools go wrong is they've gotten lazy. they often don't even bother to come to up with a reason and say can't publish it. then they'll lose. but if they try they can usually come up with something. that's the sad news i'm actually going at the end of this week to talk to annual meeting of the -- columbia scholastic journalism association which is the meeting of all of a high school students who run student publication and their advisors. so i'll probably have some more stories after that meeting. >> the woman in the center in the back row. how rude being a monitor you point at people an don't know names. >> sara from american university. my question for you guyses is while o this does seem to be a general problem across the united states, do you think it should be addressed nationally or individual communities? >> that's a terrific question. as neal reported elected school boards are important. local superintendents, as far as i'm able to grasp the newly crafted law tay replace no child left behind, the federal government is stepping back from giving the kind of guidance they've been giving for the past ten years. but the constitutional law is federal law. so we really have to have an interplay between an understanding of first amendment interpreted by federal court and what communities do on the ground and one of the recommendations i make my book is that just because the first amendment allows schools to engage in certain kinds of censorship or -- to place certain inhibition on student speech doesn't mean that school districts have to use those powers. so one thing that people who believe in a more -- a model of education that emphasizes learning how to be citizens in an active way might do is run for school board or o go and tell the school board. we would like to be a community in which the school doesn't limit students speech that isn't disruptive even though you have the power to do nap we had like to send a different message in this environment. usually, the people who talk up about speech in the local community or those who would like more censorship rather than less until there's an incident. and once there's a censorship incident, quite understandably principals and school boards tepid to dug in their heels rather than to reconsider their policies. so i suggest this is a good conversation to have before a play has been about canceled or -- some other issue has arisen. >> other questions? >> down here to the right. we'll get both of those gentleman. >> hi michael, washington, d.c. wound wondering if courts have considered the possibility that educators would be doing well to solicit provocative speech rather than just allow it. >> i love that idea. [laughter] but i've never seen e court say it, and i don't know have you ever seen a principal say it? >> well -- i've seen, i've seen some administrators who profess to encourage -- to encourage controversial speech. there's actually a very interesting study that was published in a book called controversy in the classroom with two authors, an they actually show there a set of cases in which classroom teachers are using controversial topic and controversial opinions as vehicles for developing to the capacity or for sometimes a writing, learning, how to write or for speech and debate purposes but in the regular classroom not at the club, and basically, they show that generally speaking, i mean this is a very large study that they did over five years with thousands of students that they later also followed up with after they graduated to see the intent in which intent to which they -- they remain active citizens. right, to the extent of which they vote or participate in other ways. and 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 even, if it's not your view as a teach but you come in and you say here's why we should have strict gun control regulation or the opposite. right, then basically your capacity to encourage students to develop critical thinking skills and respect for debate skill and all of these other -- capacities that allow you to be a good, active educational citizen really strengthens by this. right, so you do see the practice some teachers and administrators i won't say this is the mainstream. >> i would just add that i think that schools and educators tend to avoid controversial issues quite apart from the first amendment question because often the school sometimes a school has a again, diverse community that it's working with and they're just try aring to avoid conflict that might get them hard time, and there was work by two political science -- and that came out of a few years now done subsequent work but that surveyed biology teachers and found that 60% of biology teachers soft pedal evolution or don't teach at all mainly because they're trying tore thinking because they're trying to avoid getting anybody angry so a lot of avoiding controversy isn't even about first amendment but it's about makes your life easier not to aggravate people. >> well, teachers also lose their jobs if parents get angry enough, and even if they have tenure and if they stray from the view point in the curriculum that school board has chosen they can get in a lot of trouble. >>david, some years ago i worked for the michigan state legislature and i worked on a bill to protect rights of public school students in publishing newspapers. there are plenty of sources of rights for students besides the u.s. constitution each has its own scootion and each state can pass statewide laws. i want to know have state courts relied on state constitutions to present students' rights and passed statutes protecting rights to free speech? >> terrific question. yes a number of states have enacted higher protections for speech rights than are currently found in the federal doctrine from the courts, california basically saying that material disruption standard applies to every kind of students speech in k-12 regardless of the supreme court precedent and they also a few years ago passed a law protecting advisors to questions going back to your question about your op-ed piece if a advise in california fights to protect the rights of the student journalists, the statute says they can't be discharmingd for that. and there are a number of organization it is that are actively working to try to get more stakes to pass more protect eve laws for student journalists. a number of states experienced vetoes from governors, one case involved students in suburb at chicago with a award-winning newspaper that discovered that they're -- that staff of the school district had gone on junkets and they dug out the travel receipt and showed they stayed in the hotel more than the the meeting went on and things like that and they weren't allowed to publish it in the school u newspaper. but the chicago tribune found it met standards for journalist investigations and published it. and after that, the illinois legislature passed a student rights statute to cover student journalists and governor vetoed it. pretty shameful. but that is another place back to the local or national problem it's both. >> gentleman right here. >> thank you, asking this question to my capacity as a high school basketball coach in a public school in fairfax county. i'm wondering whether your scholarship touches on this issue, i've been following a case i think that is progressing now is a football coaches 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 didn't raise a problem. some of the kids on the team then said coach, what are you doing? well, i'm praying. can we you? of course it's a free country which people wherever they say that, that's wrong. [laughter] so as more and more people joined him for the prayer he then was suspended i think that case is ongoing. i'm wondering whether any of your scholarship or research sort of 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. and one of the problems in this area is that next to the doctrine governing student speech which sort of threw up their hands said this is too confusing for me. i don't know thousand use it which they preside over difficult cases, but trying to make it clearer. next to that, the condition of the establishment clause is enormous disarray because the supreme court has basically 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 with the lower courts don't have much guidance and so teaches and principles are confused about what amount to an establishment caused violation. how does this relate to free speech for students? they too often think that if students express religious views, like praying over the sandwich i brought from home not even trying to get other students to join in. that the school will be accused of an establishment claused violation for allowing this to take place. that is clearly not true. supreme court has repeatedly said that students have the right to pray in school. again as long as they're not disrupting class. and to express through speech their religious view points to each other. the the problem is when you have a teacher encouraging people, then we have a question about is participation really voluntary? so the law is pretty clear, this should be from the students themselves. or very different if a group of students say you know we notice the coach has been praying in the middle of the field and we'd like to do that too. coit they do it separately? do it they join the coach o? when the coach says, team members whose lives i'm pretty much in charge of, a lot of the time and i'm important authority figure to you, you want to join me, i think that's a closer question. and certainly if he said we're going to do this as a team, that's forbidden. >> gentleman in the center and a couple of more and have to wrap up. >> marx american university i have a quick scenario question or for you. it a teacher is hospitalized and assaulted in the the process and ends up in the hospital and post on facebook that she ends up in the hospital and gets fired because of it. is that violating her first amendment right? >> i'm sorry the teacher -- >> sorry i wasn't really clear. the teacher assaulted in an incident at the school an was hospitalized because of it. well in the hospital she was -- posted it on social media site that she was in the hospital. can she be fired for that? >> it depends, the will you will be different depending where she lives because the appellate courts are not entirely in agreement. but there are -- there are some limits to what public employees including toamps teachers can say about their work so a lot would depend whether this is a matter of public concern or o not. and hypothetically if she were attacked by a student or by the school principal that probably to me would seem like a matter of public concern, but if it was something else, then she probably could be. but it's very is hard to say without knowing both more and where this took place. >> gentleman right here. be our last question. >> dr. mccluskey to your point isn't this whole issue really more not about -- free expression but property rights. isn't public property the original sin in this whole debate where if you, you know, if you don't have public property, public school wouldn't be in the situation to be an arbiter of speech? >> i've never put it that way, and i'm not an exfor the on property law or or anything like that. i do think that that is certainly a root problem most of these issues would go away if government wasn't providing schooling. so i think what's important is we do need to look i think somewhat below the conflicts thelgs and say what may be causing us to have all of these conflicts. the reality is i hope we move to school choice and we are moving to school choice to some extent and that means private schools because charter schools understand or o public schools so they're still bound by all of the this. but while we've made great progress nowhere near to those going to public schools so these are real issues that will have to be dealt with until we can preach the ideal where everybody is going what i think is ideal to a private school because then you and the educator essentially agree on what rules are going to be and that's the best way to balance lots of competing goods. one where people just put different values on different things. but also where some things can't cos exist together. so you can't have a school that's botno

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