pageok
pageok
pageok
Stanley Fish Agrees with Justice Thomas on Student Speech:

Clarence Thomas Is Right, reads the headline to Fish's New York Times op-ed. (Recall that newspapers headlines generally aren't written by the authors of the articles, but here the headline is an accurate summary of Fish's view.) An excerpt:

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that "teachers taught and students listened, teachers commanded and students obeyed," he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don't have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

1. I'm not sure what the right rule for K-12 student speech ought to be, but it seems to me there are very strong arguments for endorsing the constitutionality of the "teacher command" view of schooling, in which students are taught discipline and obedience first and foremost. There are doubtless benefits to providing more freedom for students, but my sense is that there are serious drawbacks to it as well.

Among other things, it may well be that constraint is especially important for students who are already in jeopardy of academic or other problems, or in schools that are already suffering from such problems -- disproportionately schools that educate students who are poor, come from broken families in which less discipline is present, or are surrounded by extra risk of drugs and violence. Eminently well-intentioned egalitarians, including ones who support liberty for adults, might well conclude that constraint for children is the way to achieve more equality (and even liberty) for society more broadly.

I'm not expert enough on the subject to know what works and what doesn't. But the "teaching kids discipline is the key to promoting equality and liberty for adults" approach strikes me as plausible enough that it at least can't be dismissed out of hand, whether by conservatives or liberals. The special role (and history) of K-12 education may well justify leaving the free-student-speech vs. pervasive-constraint decision to schools, and the practical realities may well justify many schools' endorsing the pervasive-constraint perspective. So even liberal fans of Prof. Fish shouldn't see the Fish/Thomas pairing as a particularly odd couple on this score.

2. It's also worth noting that Prof. Fish would apply a similar rule to college students -- a position that, I've argued, is supported by some aspects of Justice Thomas's opinion, though not by others. I take it that if Prof. Fish is serious about his parenthetical, then it would at least apply to the entire range of speech that Justice Thomas is discussing, though at a college level: speech either on campus or off it (even in entirely non-academic activities, see the Old Jack Seaver case that Justice Thomas cites favorably in his opinion), whether the speech is political or not (Justice Thomas, unlike Justices Alito and Kennedy, would allow the limitation of expressly political speech), and whether the speech expressly advocates illegal conduct or not.

Prof. Fish doesn't explain, unfortunately, why exactly such restrictions are necessary and proper. Justice Thomas might endorse them, even at the college level, if he thinks that's what the original meaning of the First and Fourteenth Amendments requires, but I take it that Prof. Fish is not an originalist and thus can't rely on that. And the intuitive arguments about the need for extra discipline and constraint for K-12 students don't easily carry over to college students, who tend to be adults, albeit young adults. Here's the heart of Prof. Fish's argument:

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy --- the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don't believe that it is their right to pronounce on anything and everything.

That may well justify very broad teacher authority within the classroom, but it doesn't tell us much about what college student speech should be allowed outside the classroom, especially at events that are pretty far removed from normal pedagogy.

In any case, an interesting op-ed that struck me as worth noting. Thanks to Gerald Wachs for the pointer.

Jeek:
"I talk, they listen" is a perfectly sound philosophy of teaching, even at the college level.
7.9.2007 2:09pm
David Schwartz (mail):
If he really does mean that students have no first amendment rights in the classroom, that would mean that teachers can teach the students that Jesus died for their sins and punish them if they disagree.

The right not to be punished for one's speech based on its content is of precisely the same constitutional stature as the right not to have the government establish religion.
7.9.2007 2:14pm
advisory opinion:
Straight from the tyrant's mouth: the pedagogigal diktat was never so forcefully explained.
7.9.2007 2:17pm
alkali (mail) (www):
It's sort of hard to imagine that the government could restrict speech by students who are subject to a military draft.
7.9.2007 2:25pm
frankcross (mail):
I'm a little taken aback by the tone of "if we restrict speech, I think it will have good consequences, so we should do it."

That's a pretty open ended standard for repressing speech.
7.9.2007 2:26pm
Mark Field (mail):
I can never tell when Fish is serious or not. Some of his language here (the second paragraph) is so over the top that I suspect satire.

I don't think anyone can doubt the need for discipline in the classroom. What this has to do with the actual facts of the case is a little harder to discern.
7.9.2007 2:43pm
Former Law Review Editor:
Actually, most college students should not be considered adults, even young ones, especially when viewed in the historical context of the student bodies of universities.

First, reducing the age of majority to 18 is a very recent concept. The age of majority was, traditionally, 21 (or even 25), below the vast majority of today's college students. Additionally, university students, historically, were often much younger than they are today, with the increasing period of adolescence.

Finally, empirically he's right that college students aren't adults. Look at all the problems that the vast majority have, and the fact that most remain dependent on their parents for support.
7.9.2007 2:46pm
Eugene Volokh (www):
Frank: Obviously that can't be all there is to it -- Justice Thomas's answer is that the focus should be on original meaning, and if the original meaning has good consequences then all the more reason to fight for it. Nonoriginalists would have to provide other arguments. The post isn't the place in which I wanted to go into them, but I take it that the arguments would relate to the government's special role as educator (rather than sovereign) coupled with the special status of children, as to whom some of the justifications for speech protection wouldn't squarely apply.
7.9.2007 2:50pm
miller:
Fish is no friend of the First Amendment, or should I say, he takes a very narrow view of what the First Amendment protects.
That is why, even though I am always arguing against the coherence of most First Amendment arguments and doctrines, I never urge people to stop using First Amendment formulas -- because they have so much resonance. Freedom of speech, individual rights, the establishment of autonomy, the freedom from governmental restraint -- these are magic phrases. The trick is to take those magic phrases and fill them in with the content that will then generate the outcome that you desire....

The correct response to a vision or a morality that you despise is not to try and cure it or to make its adherents sit down and read John Stuart Mill's On Liberty, that's not going to do the job. The only way to fight hate speech or racist speech is to recognize it as the speech of your enemy and what you do in response to the speech of your enemy is not prescribe a medication for it but attempt to stamp it out.... They will win the game only if they really try to win it, rather than falling in with Justice Brandeis' pronouncement that "Sunshine is the best disinfectant"

7.9.2007 3:04pm
L.J.:
Eugene...your stupid law-review article said Thomas was the second-most speech-friendly justice on the Rehnquist court. Now he's allied with Stanley Fish?? Unless "speech" excludes speech by students and racists, that doesn't add up.
7.9.2007 3:06pm
ifoughtthelaw (mail) (www):

If he really does mean that students have no first amendment rights in the classroom, that would mean that teachers can teach the students that Jesus died for their sins and punish them if they disagree.

The right not to be punished for one's speech based on its content is of precisely the same constitutional stature as the right not to have the government establish religion.


Free speech is the right of an individual to engage in affirmative conduct. Antiestablishment is a constraint on a government actor from engaging in conduct. The two rights couldn't be more different.
7.9.2007 3:09pm
frankcross (mail):
Frank: Obviously that can't be all there is to it -- Justice Thomas's answer is that the focus should be on original meaning, and if the original meaning has good consequences then all the more reason to fight for it. Nonoriginalists would have to provide other arguments.

Ok, but most originalists would rather not talk about consequences, because if good consequences support an originalist meaning, bad ones would be an argument against such an approach.

The post isn't the place in which I wanted to go into them, but I take it that the arguments would relate to the government's special role as educator (rather than sovereign) coupled with the special status of children, as to whom some of the justifications for speech protection wouldn't squarely apply.

Well, that falls a little short of the mark, I think. The Government's special role as educator is certainly a reason to draw a distinction, just as the government's special role as an employer does. However, that is far, far short of saying that the government could restrict non-disruptive political speech.
7.9.2007 3:19pm
PersonFromPorlock:

...but it seems to me there are very strong arguments for endorsing the constitutionality of the "teacher command" view of schooling, in which students are taught discipline and obedience first and foremost.

Unfortunately, given the kind of also-rans we find working in schools (and colleges) today, "discipline and obedience" is nothing but a license for official self-indulgence. Maybe, if the academy had spent the last century turning out Platonic philosopher-kings....
7.9.2007 3:37pm
Tom Cross (www):
Free speech is a constraint on a government actor (the police) from engaging in conduct (arresting speakers or seizing their publications).

In general, this perspective from Prof Fish is extremely self serving. The sort of discipline provided by an environment in which one is not allowed to express opinions critical of the official policies of the authorities is precisely the sort of discipline one gets in a military academy. The purpose, of course, is to train people to make the right decision in a situation where they are ordered to put themselves at risk of harm or death. Its designed to break down instincts of self preservation, and it has absolutely no place in an environment where such requirements do not exist.

A school is more than a place people go to learn, it is a community of people who are growing up together. The policies of the school board and the school are absolutely democratic issues, as are the policies of the local government in regard to minors. Unfortunately, those who are affected by those policies are politically disenfranchised, and so typically those policies do not serve their interests so much as they serve other people's perceptions of what their interests are. The only means they have to respond involve communicating with eachother and the community, and the school is an obvious nexus for that sort of communication; perhaps the only one that existed prior to the growth of the Internet. The consequences of removing that nexus of communication may only be viewed as positive because there will be no forum in which the negatives are aired.
7.9.2007 3:39pm
srg:
Mark Field,

I assume Fish is being serious, not satiric, but that he loves playing devil's advocate and has an adolescent desire to shock.
7.9.2007 3:44pm
Eugene Volokh (www):
Frank Cross: Originalists sometimes talk about consequences because they realize that some of their audience is consequentialists. And they sometimes care about consequences even themselves, for at least two reasons:

(1) If one cares at all about precedent -- and I suspect even Justice Thomas cares about it to some extent, if only for the practical reason that you can't be willing to refight every single constitutional battle there is -- bad consequences might be a reason to jettison a precedent that one otherwise would be willing to live with (despite the precedent's inconsistency with original meaning).

(2) If one recognizes that one's time and energy -- and perhaps others' willingness to listen to one's radical ideas -- are limited, a precedent's consequences might be a guide to which battles one should fight and which aren't worth the effort.
7.9.2007 3:51pm
jacobus:
It's shocking that Fish has enough time to write at all, what with all those darn kids running all over his lawn who need shouting at.
7.9.2007 4:25pm
paul lukasiak (mail):
As long as academia is a hot-bed of socialism and liberalism, I fully support the demand that free speech for college students be restricted.
7.9.2007 4:28pm
Mark Field (mail):

I assume Fish is being serious, not satiric, but that he loves playing devil's advocate and has an adolescent desire to shock.


Fair enough, and true enough. But with Fish, how can we ever tell?
7.9.2007 4:35pm
john w. (mail):
... "teachers taught and students listened, teachers commanded and students obeyed," ...

That sounds like an excellent philosophy if we were talking about privately funded schools that the students were attending voluntarily. But isn't the Constitutional issue inextricably linked to the fact that we are talking here about compulsory, government-operated, monopoly schools? Any anyhow, I thought this case involved conduct that the student engaged in *outside* of the classroom, didn't it?

Under Thomas' view, wehat is to prevent a school administrator from punishing a student for expressing outside-the-classroom opinions in favor of, say, traditional monogamy, or unrestricted RKBA, or any other non-PC viewpoint?
7.9.2007 4:53pm
NatSecLawGuy:
Purely as a policy matter: I agree at the primary education level with restrictions on speech as Mr. Fish has suggest as they pertain to the classroom, but at the secondary level I find that teachers facilitate, students learn and teach. Thus, a more liberal speech standard in the secondary context enhances pedagogocial goals rather than detracts from them.
7.9.2007 5:18pm
frankcross (mail):
You don't have to convince me, EV, I'm a thoroughgoing consequentialist, just one who has noticed what a drubbing consequentalist theories regularly take from originalist/textualist types.

The main problem with consequentialism, I think, is that it can be done in a shoddy manner. As would be the case here. One certainly could study the consequences of relatively free student speech and I would find that relevant. But "seat of the pants" discussion of the "good old days" isn't it.
7.9.2007 6:01pm
Sarah (mail) (www):
I support the right of schools to restrict whatever the heck they want. I take serious issue with almost all schools being at least in part funded (and thus controlled) by government. And I really cannot overstate how much I disagree with compulsory education in an environment in which a) government controls the schools and b) schools control their students.

Let a thousand (or a million) kinds of schools bloom, without taxpayer and bureaucratic interference, and Mr. Fish and Justice Thomas can have all the command and control education they want (and willing to pay for.) Till then, though, kids (especially the 18-and-over ones) ought to have the right to stand across the street from their school with a sign that says "Bong Hits for Jesus" and find full protection from any official retribution.
7.9.2007 9:47pm
debator (mail):
"teaching kids discipline is the key to promoting equality and liberty for adults."

Let's be honest enough to admit that the world we currently inhabit--the division or rich and poor--is the result of past injustices. Further let's acknowledge that the wealthy continue to have a larger say in our political affairs. Let's admit that this rhetoric about "discipline" is just more victim-blaming. It focuses not on fixing society's gross injustices, but on fixing the poor person. It attempts to promote equality and liberty without having to promote conditions of equality and liberty.

Not only will Fish's (and/or Thomas') prescriptions for "promoting equality and liberty" do nothing of the kind, but they will succeed in doing the reverse. Every sociologist knows that wealthy kids are bred for leadership. It is not extra discipline but freedom that is key to developing leadership abilities. While rich kids attend private school that support independence, poor kids will be doled out more contstraint. This will only widen the gap between the rich and the poor.

More constraint is the last thing poor students need. Poor students already feel powerless (because they are). The problem is too much, not enough, autority in their lives. From nosey case-workers to bullying cops, poor kids are pushed and pulled in every direction but their own. More constraint will only further demoralize and disempower poor students.

Real education actually does promote equality and liberty. Real education aims to develop the thinking skills of the student. Needless to say, more authoritarianism in the class room is anathema to this purpose. It was once believed that a student repaid his teacher poorly by remaining a student. This seems to be precisely what Thomas and Fish are aiming for.
7.10.2007 6:17pm
occidental tourist (mail):
Debator:

Your post brings one appropos thing to mind: debatable. Actually education was historically the repository of discipline and it was taking that approach that prepared people for leadership.

I can recall in the 1970's my cousin went to Brown and had an alumni advisor who told him to shave his beard because it was just peach fuzz (it was the '70s, I don't think he did shave but campus culture was still rooted in its traditions). Not exactly a direct pedagogical discipline, but part and parcel of the controlled environment that was historically seen as suited to disciplined study.

This is not private institutions full of freedom and public institutions full of servitude, but almost the other way round.

Certainly it is only since that era that the idea of freer student expression has taken root as a constitutional as well as aspirational ideal. I think it important to note in Fish's behalf a point somewhat glossed over by criticism of his argument as:


Straight from the tyrant's mouth: the pedagogigal diktat


as Fish actually assumes circumscribing the speech of educators as well in stating the rights students do have in his opinion:


the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.


That said, I think Fish's belief that such a regime could ever exist hopelessly outflanked by the current circumstance. Thus the protection of the first amendment, most especially on college campuses, but to an extent in government schools of primary and secondary character, is a surrogate for reacting to pedagogy that does not conform to the aforementioned confines.

I would concur that taking this as a constitutional matter it frustrates an orginalist interpretation for consequentialist reasons. But it doesn't have an ideological content, rather it is process oriented. All the early cases were to permit liberal expression that campuses wished to clamp down on - whether for honest concerns regarding the environment for pedagogy or for the advancement of competing ideology.

Now this mechanism has boomeranged and is the crude club occasionally employed by we conservative and libertarian thinkers whose views have been excluded from campus dialogue or confined to 'free speech zones' where we can be stoned to death - whoops, that was Iranian discipline, I take that back sort of. Come to think of it, there is a nother place where conservatie and libertarian ideas alwasy come up on campus. 'Educators' belittle them in ignorance of Fish's proposition that they have no right to pronounce on anything and everything while shielded by their own private first amendment - academic freedom.

Academic Freedom should cut both ways. I do favor a measure of discipline - say such as throwing rowdy lacrosse players out of school for holding strip tease acts in their apartments. But the problem is that virtually any act can be said to have political or philosophical content which ought to be protected by academic freedom. In theory this ought to be able to be decided without a bright line standard by adminstrators applying rational inquery into the content of the speech but in practice this tends to mean if your speech is unpopular (David Horowitz's polemical but rational discourse on reasons why reparations are a bad idea comes to mind) it will be held to be outside the bounds of reasonable discipline.

If these lines could actually be drawn, and despite his crochetty academic tyrany, I think Fish practices what he preaches and if we had a variegated world of academics populated by scholars of similar integrity I might wish to return this entire discussion to the administration of these schools (of course I'd like to get government out the funding as well as out of the day to day campus management as well. But there are very few academics who are willing to live under the standards they would foist upon others. Thus to paraphrase my favorite Federalist [51]:


If angels were to govern educate men, neither external nor internal controls on government campuses would be necessary.



It ain't gonna happen so bring on Barnette.

Brian
7.11.2007 10:26am
Debator (mail):
Brian
While my post may be debatable, I would appreciate it if you actually took the time to debate it. I hardly think that your broad assertion that private schools impose more disclipine than public schools is sufficiently supported by an anecdote about your cousin. Moreover, I don't remember writing anything about the historical nature of education. As if the history of education has anything definitive to say about what the aims of education should be.

To restate my point: student expression is essential to developing independant thinking skills. Do you have any thoughts about that?
7.11.2007 11:42am
Mark F:
Students share in virtually all other constitutional rights, is there a justification depriving them of First Amendment rights other than practicality? Assuming that there is not, how much is a right worth that bends so easily to convenience? The better view is that unemancipated children have constitutional rights, which may, in some cases, be suspended by their guardians. Parents should have the opportunity to send their students to functional schools where speech is curtailed, if amenable to their sociological and political inclinations. While parents may cede such control to educational institutions, they cannot be a required to do so. Neither can the Government condition the benefit of education at a particular institution with the forfeiture first amendment rights. The solutions must be privatization of the educational infrastructure.
7.11.2007 3:53pm
occidental tourist (mail):
debator:

didn't mean to single you out without spending all my energies in that realm. I often don't adress my comments as they are generally run-on syntheses of my response to the full panoply of foregoing comments. I concede that I couldn't help myself in this case, struck as I was by your screen name and how reversed I think you had the several premises of your post. I would also be the first to confess not being preoccupied with restating simple economic concepts before a relatively libertarian audience, but when inveighed to do so for the sake of argumentation would never shrink.

It would be the furthest thing from an honest mind to chock up extant circumstances to 'injustices'. Rather the history of America, as can be aptly seen by all the complaints about how well our country has it compared to others, is not a zero sum game in which rich people unjustly took from poor people. Rather, without regard to the constantly harped on disparity between rich and poor, the opportunity and resultant welfare of all is increased. The idea that making Sam Walton's descendants poor or somehow economically equal, or wealthy within some government approved multiple over the least wealthy in society will actually enrich anyone lies in the ash heaps of history.

Of course you have stressed that you live in the present.
It is all fine and good for you to suggest I gave you only an anecdote for my proposition that education historically was characterized by a great degree of circumscribing of expression, but I am not so sure you disagree with the larger case I was making. Rather you take pains to disavow a historical perspective.

But the world has been rearing leaders through schooling for thousands of years. During the vast majority of that time expression -especially of the sort considered in Bong Hits 4 Jesus - which is to say nonresponsive to direct pedagogical exercise has been cabined within relatively narrow limits. I think of Hesse's Beneath the Wheel as a particularly striking literary anecdote of the would be free spirit amongst the gentry butting heads with the educational establishment.

Your complaint that the current circumstance somehow blights the opportunities for those attending public schools by excessive limitations on expression verges on laughable in the context of a school that wanted to regulate the display of a nonsense sign associating jesus and drug use.

I have no particular beef with this somewhat narcissistic anti-establishment behavoir. While I believe the school well within reasonable limits of behavioral modification for private as well as public secondary schools to constrain such acts through punishment, it does so at the risk of elevating the nonsensical to the sensible.

To take your restatement of the premise:

student expression is essential to developing independant [sic] thinking skills.

(which, incidentally, does not seem to remotely restate the class warfare aspects of your first post). This proposition is not stated in a way that logically suggests that certain constraints on expression are mutally exclusive with the fermentation to fruition of leadership. You don't say all unconstrained student expression on any subject is a prerequiste to independent thinking skills.

Presuming, without deciding, that independent thinking skills are a surrogate or critical subset of leadership skills, they are as often manifest by defending the particular codecil of thought in derrogation of establishment prohibitions. The very nature of the idea of an establishment -- whether that be viewed as the values of society as whole instantiated in either the public or private secondary school - is a constraint on expression in the sense that students are taught what the establishment believes is correct. Those who accept these constraints are the herd, those who stand by the parade of lemmings with signs that say 'Bong Hits 4 Jesus' are the leaders.

In elite private institutions these prohibitions take the form of "you can't be against reparations as it will offend your fellow students", "you have to value multi-cultural influences", "women and men have the same innate potential and their accomplishments are only disparate as a result of our paternalist society", etc., etc. These constaints, explicit and implicit, are perhaps more insidious than the purported overreach of a frustrated administrator to punish a student for anti-establishment expression of the sort considered in the present case.

But pulezze [sic] don't give me this crap about how expression is constrained in public schools and that is why they don't produce leaders.

Never enuff said but got to go to work.

Brian
7.12.2007 10:42am