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tv   Book Discussion on Lessons in Censorship  CSPAN  April 10, 2016 7:00am-8:31am EDT

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have won the oscar of the year. here's an example of an artist was devoted his entire life to confronting the genocide and what it means for one population of people in the country to kill another portion of that population. and that to me was as grim as a history was. the film after film, then this incredible memoir it does exactly what you have done it is for some people to confront history including cambodians themselves. speemac, fried to leave you stranded but were about out of time. you're welcome to come up afterward and ask your question. i think you all for being here. want to thank our panelist. [applause]. i can promise you this, that
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it's good as they are a person it's better on the page. enjoy the book. >> [inaudible conversation] that's incredibly inspiring because you guys do it too had dan, which is connecting flight to the pursuit of memory and truth in forcing people to
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confront a history they don't want to confront, including cambodians themselves. >> i'm afraid we're about an time. you are welcome to ask your question that way. i want to thank our panelists peter and [applause] as good as they are in person, they are better on the page. enjoy the book. but [inaudible conversations] >> good afternoon welcome to the cato institute. i am vice president and publisher and i would heartily like to thank you for coming here, for our viewers on mina being broadcast by c-span. you may not know unexpectedly the washington subway system, the metro was closed today so the people who have joined us here have made great effort to hear something about this book, lessons and censorship, how school is subvert first amendment right
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to refinance the the 265th earth day of a man named james madison. as it happens, james madison wrote the first amendment because he wrote the first 10 amendments introduced to the congress. and beyond that, more than just the author of them are the person who wrote them, it was also very heartily in them. i learned today in part of that, private's birthday of the first amendment center, a valuable institute here in washington has designated his birth a national freedom of information day, which is we are celebrating here today along with the publication of this book. i can't help however peripheral to what i thought was an interesting and useful comment from madison on this very topic
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of first amendment freedoms and freedom of speech. madison wrote a popular government without popular information or the beams of inquiry and it is but a prologue to a farce or a tragedy. or perhaps both. knowledge will forever govern a people who mean to be their own governors must arm themselves with the power which knowledge gives. end quote good we will continue in this faith as we go down through the history of the united states that knowledge will govern ignorance in the first amendment is an essential means as katherine ross just that in the green room to make in a whole system work. madison designated him as the first person to go in the freedom of information act hall of fame which is interesting.
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he is kind of hank aaron of freedom of information. that said, i hope we have a person here, the author down the line will be a candidate for the freedom of information act hall of fame. catherine jay ross, the author is a law professor at george washington university and during the current academic year is a visiting scholar at the harvard graduate school of education. this book, lessons and censorship listening 2015th best book by confirming opinions first opinion news. professor ross specializes in constitutional or with an emphasis as you might guess from the first amendment but also family law and legal and policy issues concerning children. she is published and lectured widely, has been a beaut and testified with congress. this is not however her first
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appearance in a cato for impaired she was a commentator in january on a panel we had and she was a participant in cato unbound conversation which i recommend to everyone here both in general and particular month or two ago. you can find it keynote at work. let me also say that while i'm discussing that, if you are following us today on twitter, please use the hash tag cato event. on twitter that hashed to cato events. professor ross has also been on the aba, american bar association steering committee on unmet legal needs of children and presented a report in 1993 on america's children at risk to the white house. she has served in many ways at the highest levels on american bar association and the editorial boards of the family courts review and family law
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quarterly. she is a distinguished advocate of the first amendment and we are happy to welcome them here at the cato institute and talk about her book, "lessons in censorship." catherine. [applause] >> thank you for the introduction and for raising the streets of washington today and the sunniest equivalent of a snow day we have ever seen. i'm going to begin by reading the opening passage for my book. you lose all constitutional rights once you enter a school building a school official and soulful account in new york claimed in the spring of 2012 year you are not allowed to do this she asserted as she confiscated flyers from indignant student who was protesting her son five day suspension. larry and censorship upon censorship come at the episode a surreal quality.
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the student had been punished for voicing her opposition to bullying and away the school deemed inappropriate. the seizure was as clueless as to what a surreal because the first amendment protects speech rights of public school students in grades k-12 and yeah schools all over the country regularly censor constitutionally speech by children and judges often let them get away with it. when i used the word censorship i'm talking about stopping the speech before it happened and punishing them afterwards. school silence and punish statements to express their own opinions on every sign of important issues we adults are debating including national and local politics, rights at all gpt students, abortions and more.
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they suspended a six role to a six world who called a a to call the class made a boo-boo head. they stopped when elementary schoolgirl from praying before eating her lunch and another from distributing the home and fire that began my name is ambien which she shared her personal experience that finding christ was like finding a lost dog. in the upper grades, school suspended two boys who were political t-shirt. one praising -- i'm sorry, john p. mechanical problem here. maybe you have to do it appear. we should have cracked this
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i thought this was all set up. can we pause here? i am so sorry. this is awful. i have a beautiful t-shirt to show you. okay. one was praising the marines and their god and another boy was criticizing president george w. bush is a substance abusing draft dodging chicken hot and schools are increasingly asserting the authority to punish students for what they say off campus on their own time, a subject i will return to at the end of my comments. the constitution protects all of the expression as well as speech that adults might regard as worthless. that the constitution protects
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worthless as well as worthwhile speech and when we talk about students, we often talk about adolescent humor simply beyond adult comprehension. students are especially likely to get in trouble for speaking on someone else's parent or speech controversial which really means they say it's good because i disagree with it. controversial and disagreeable speech is exactly what the speech clauses designed to protect. the power points just dissipate. students are especially -- i'm sorry. i should never use powerpoint. the heart of the problem is too many principals and school board members don't know or don't understand the limits the constitution places on their ability to control with statements i bought a simply
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disregard the law because they don't like it. as i worked on the boat, almost everybody i talked to informally said i have a censorship story. in their own days in school or from their children. longtime teachers incredulously 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. in perceiving i have to begin by giving you a whirlwind tour of first amendment doctrine as it applies to student and i'm all turned to some stories that capture some of the particularly contemporary dilemmas. the speech clause of the first amendment is very can guys. it says congress shall make no laws of the freedom of speech. this means that the government and anyone that can on behalf of the government may not silence speech because of its content or viewpoint. school districts and everyone
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who works from them from principles to school bus drivers are the government when we talk about students freedom to speak. my research and comments today are limited to public schools because the first amendment doesn't apply to independent goals whether secular or religious. they are not the government. the supreme court first took up the issue of student speech rights in 1943 in one of the earliest cases in which it actually upheld the speech rights of any individual. garnet versus west virginia about elementary schools defense. they were jehovah's witnesses at risk of expulsion and being sent to a juvenile reformatory because they refuse to say the pledge of allegiance on the ground that it offended their religion. but it was not litigated or interpreted as a religion case. the consequences today of speaking out and being punished
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can also be dire. many students enter the school to prison pipeline as a result of being suspended, expelled or sent to an alternative school for public student after they engage in protects speech. just like the jehovah's witnesses in 1943, the current quinces are stark. people excluding young students could not be forced to say what was not in their minds. a concept today called can spell speech. the court emphasized the constitutional limits on the state's coercive powers whether exercised by village tyrants or by the federal government and underscored the first amendment was designed to protect nonconformists of all stripes. the core particularly focused on schools because the case involved two elementary schoolgirls. because schools are educating the young for citizenship, they
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must rigorously protect individual rights prefer not to strangle the free mind at its source and to teach you to discount important principles of government as mere platitudes. decades later the core return to student speech and began to carve out a special way of claims that schools had illegally censored student expression. the first iconic supreme court case in modern times and i'm just listing the cases i don't expect you to retain all of them so you don't wonder when i see the names. the first modern cases tinker versus des moines decided in 1969 at the head of the vietnam war and held it violated the first amendment by suspended due to wear black armbands to school in order to protest the war. the court took into account all the things society exposed to accomplish, especially importance of educating young
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citizenship and crafted a special test that schools more leeway to restrain speech than the government has in the world at large. and as schools could not censor student expression unless authorities had a reason to anticipate the speech could lead to material disruption of the schools function or collide with the rights of others and none were for two this is the material disruption test. as the court became more conservative under review chief justice it originally carved out exception to material disruption test in three-liter cases. these give schools more and more power to censor student speech but did not extinguish student speech rights. two of the exceptions give schools the discretion of or advocates the use of illegal substances which you may reckon is i've been hits for jesus
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case. the most important exceptions stems from hazelwood in 1988 decision that created a special category of speech the court labels school sponsored. if speech is school sponsored, and it is treated as if the school is speaking and the student is not even know the speech originate with the student in such places as high school papers are literary magazines but also much further. to be school sponsors come in the speech must bear the schools and premature for and justice alito's words, to be the schools own speech said any reasonable person would think the school had approved it. this feature is all expressions of student applications, performances, extracurricular committees and more catastrophe
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students of their voices. schools try their best to avoid the material disruption standard because it is hard to satisfy. they claim that all cursing is fluid and can therefore be punished even when students read aloud from classical literature or mutter to themselves thinking no one can hear them. some schools have begun to assert that students in the classroom and in written homework assignments handed him only to the teacher is school sponsored expression though no one in their right mind could think the school had a chance to understand and approve it before the students submitted a bar saturday. the person really limits the range of viewpoints in our classrooms especially since teachers in many jurisdictions are not allowed to disagree with the text the school board has selected and there are many disputes about web viewpoints should be part of the official curriculum. i won't go into them, but think
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about disputes on how to teach biology including evolution, courses on sex at an even american history and slavery. let me briefly anticipate them, and concerns about giving students too much freedom in school. recognizing students constitutional rights will not undermine education at all. there are two concerns is going to undermine education or put people at risk of their safety. regarding the first concern, education preserving the school's educational function is the essence of the material tests. disruption does not have to be tolerated. the second safety, schools may always clamp down on speech that's illegal outside of the school like true threats, a narrow constitutional standard, very hard to satisfy but also harassment and so forth. more important, even speech protected outside of school by
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the constitution that threatens violence or serious disruptions but it 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 contend the speaker and investigate whether there is cause for concern. safety comes first. that's a taxonomy. the principal or official has to figure out what kind of speech that his spirit the students own that is not, not prodrug or school sponsored and within the taxonomy applied the correct test because each of these has a slightly different formulation. i understand it is hard for teachers and principals and the spur of the moment when they are worried to try to understand and use a complex set of standards.
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but they're also not adequately prepared to do that. so i provide a chart in the book and this is the color version that can be ordered and placed in the principal's office at heinrich maneuver poster. what do i do now? this is going to remind us the students own speech i have to really slow down and i can't silence it unless there's a thread of material disruption. then i have to understand something about what that means. if this school sponsored i need to slow down. i can censor it but only if i have a legitimate pedagogical reason and the fact someone finds it offensive or might be controversial is not a legitimate reason under the first amendment that includes prodrug or inciting violence or inflammatory aren't inflammatory
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censor and punish them at my discretion. since now how does this work. the speech at the core of contemporary debates, texting, online speech, bullying and racist expression falls in the category of what i call pure student speech. it is governed by the material disruption test. let me begin with creative artists who commonly get in trouble at school are fictional and graphic works. this is a poster that a high school senior named sarah bowman who had never been in trouble. she was a good student, majoring her lunch hour posted at the corridor. 15 minutes later before any students have been if they were in the cafeteria. the janitor saw and got upset and took the poster to the principal's office. as fans and i will capture it. who killed my dog. he was my best friend.
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digi just kill my dog? if you don't tell me who killed my dog, onto you. she had taken a course during the summer that taught her about conceptual art designed to capture to ranged fictional people and in the principal's office she explains this. the principal believed her, but he still said i have to suspend you for five days. subsequently, the school board got involved in the school board decided that she should be suspended for 81.5 days, the rest of her senior year and that she could not return to school must a psychologist examined her and confirmed that she was mentally fit to be in school. the court easily held that her rights have been violated and she was able to return to school for her senior year.
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once the principal interviewed her and understood what was going on, there is simply no reason to an dissipate disruption especially because even if other students might have been upset at the scene the poster, nobody saw it. so there is no cause for concern at all. in a similar case involving a worker for fiction, an appellate judge rebuked his fellow appellate panel as for allowing the school to punish the writer. he said after today, students will have to hide their artwork. they lost their speech rights. if someone finds there are disturbing, they can be punished. school officials may now support the students freedom of expression to a policy of making high schools cozy places like day care centers where no one may be made to feel uncomfortable by the knowledge that others have dark sides in
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all the arches of hearts and smiley faces. so if you are wondering about the connection between the book which stop senior year of high school in some of what has been going on in today's college campuses about students to think that their comfort level is more than the expressive rights of their peers, this is part of a connection that i see though i have not read about it, but it's part of the cato and found discussion that john mentioned earlier. and this brings us to disparaging speech addressed to groups or individuals. many schools have speech codes. is there simply school rules that prohibit students from disparaging people based on categories like race, ethnicity, identity and some go much further talking about physical appearance lecture people like
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me or doing something much harder to measure, values. students have even been prevented from expressing views and undermine respect for a group even though they weren't actively aiming their comments up the group were meeting to be disparaging. i opened my saying that schools censor both sides of the debate and many schools have wrongly prevented students from forming chapters at the alliance or similar groups are from wearing groups in which students proclaim their own identity. but here is the flip side of the story. roman catholic resisted a less than that in tolerance of spirit day from a national day of recognition for all gpt teens who committed suicide. he told his teacher, i don't mix except trim time. it's against my religion.
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it was only of competing ideas. a federal judge later commented that the teacher had modeled oppression and intolerance. other students agreed because nintendo left the room they asked why doesn't he have free speech? the legal question is whether the constitution permits students -- permit schools to regulate her pull speech addressed to groups or individuals in school or out of school. the answer is the constitution does not permit that. the u.s. is very unusual. just as taken while she was still alive professor discussed and concluded even an exceedingly narrow speech code and discriminatory harassment can not survive constitutional skirt need the united states and justice alito while he was on the third circuit pointed out there is no right to be protect it from hurtful words.
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free speech principles simply conflict with efforts to reduce the harm that disparaging speech can cause. so this is the crowning paradox. under our constitution, a liberal secular democracy that strives to inculcate tolerance and our citizens and more importantly perhaps a culture of mutual respect 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 speech that offends that goal. but the speech class doesn't leave educators without any recourse. schools can teach empathy. they can encourage peers to step up to support each other when someone is targeted with a hurtful slur or stereotype and schools can model constructive
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waiver disagreed. ideally i would urge the respect for student speech rights provide the training ground for exercising rights responsibly, for responding to her pull speech with more and better speech is the first amendment generally requires an explorer and for learning how to have substantive conflict about real issues without going too far in cutting off conversation, what i call learning liberty by living it. i will close with a third example, which is a growing number of incidents in which schools reach out, claim they can punish with students have set off campus, usually online and off school property. schools increasingly claimed the power to track and punish with students say 24/7. some school districts have even hired retired law enforcement
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officers to keep track of their students online communication from their own computers from their homes. remember the whole rationale for giving schools more power to restrict each than the government has in the world writ large is a special environment and purpose of the public schools on campus. the schools say they can violate speech that is fully protected by the constitution outside of a school if it violates the school's rules of decorum. and if we do not, one of the school speech standard applies, not the normal scrutiny first amendment test. unfortunately the schools didn't come up with this idea on their own because agencies of the federal government and many state statutes but this responsibility on schools in areas such as bullying.
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the last unsettled and likely to remain so because the supreme court just last week denied a case called golfers the school district in which all 16 judges on the fifth circuit to review a panel decision went further than any other appellate court and allowing schools to discipline a student for off-campus speech. this is a senior with a good disciplinary record as is true in many cases. african-american student who wrote and recorded a rap song and post it on youtube in which she accused two of the coaches at the school of sexually harassing for 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
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coaches that this had never happened, but the school said this is harassment of school personnel, which the code doesn't allow. these were gangster rap lyrics. they used a fictional conventions and the figurative violence that has always sounded rap songs as killer mike indicated in a brief to the supreme court, urging them to grant the petition -- the brief on the petition indicates they might not know that is not actually never killed anyone. so this leaves the law very different in different parts of the country about off-campus speech, meaning if you live in texas or mississippi or if you live in washington d.c. or boston. but it is well known for writing
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cases that criticisms of school staff members are kind of speech to get a student in trouble. schools don't like that. they return to serious punishments. tell her about was sent an alternative school first troubled kids and similar things have happened to students who have posted so-called satirical adolescent humor, fake myspace pages about their school principals, making fun of school administrators, complaining about a mean staff member or bad teachers like i hate ms. phelps. freedom of speech exists to protect dissidents including those who criticize the authorities in power. that is a core principle of democracy and one that should be honored in our school systems.
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the state's reach into the home in these cases also creates an express conflict between what educators are saying and parental liberty and decide how to raise their children and when it's acceptable for their children to say and do in posts from the home. parents often punish the students in these cases. not just the off-campus but the on-campus if their speech was rude or crude, but they sue the school to get the coercive discipline of the state off their child's common record because that can have a profound impact on the child's life. if i have time, i will tell you one more story. thank you. it's a great story. this was an on-campus inquisition into a private online conversation between two middle-school students from
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their homes in rural minnesota. the conversation has something to do with sex. we never learned of factual constant. it was on the internet, off school grounds and eyesight school hours. but school officials learned about it from the family of the boy who initiated the conversation, they went after the girl who responded to his invitation to talk about sex and they pulled her out of class. and opened her laptop and demanded her i.d. and passwords for all her accounts. they didn't call her mother. they interrogated her with the police president. they opened all of her accounts. she was sobbing and they found a facebook sex quiz, which she says i thought it was fun and funny and they condemned her for doing this online quiz as well as her personal correspondence.
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a warrantless search without any grounds at all and when the mother filed a lawsuit saying they had violated her daughter's first and fourth amendment rights, even though they had not actually punish her, it became clear where the judge is going in the case settled for $70,000. we have learned since this episode the personal computers and phones pulled everything in a person's mind. that was not as clear at the time, but it is clear now. these intrusions of the first amendment protects teach young people the opposite lesson of the less than justice jackson in her and i said we should be teaching. they teach students to dismiss as meaningless the rights we tell them they have.
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they teach young people that there's no place to hide from an authoritarian government whose officials are in him from criticism, undermining every core principle of our liberal democratic state. i look forward to the responses into the questions. [applause] >> professor vos has examples from high school recalled for the first time in many years but i want to drag into the principal's office for talking inappropriately during the reading of the lord's prayer. given at that point to school as a public school and school officials were involved in violated another part of the first amendment, in retrospect it was my finest hour. it didn't really seem like that at the time. our first commentator will be sigal ben-porath, who has traveled from philadelphia today to be with us on this book for them and weep date her for that.
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dr. ben-porath receiver.drag from tel aviv university. she was awarded two successive tel aviv university presidents postdoctoral grant in 2001 to may 2004 at postdoctoral research associate at the university center for human values at princeton university. bonus or a she served on the joint palestinian israeli committee sponsored by the peres peace and are working towards educational reform. a member of the young scholars forum at the center for the study of israel participated -- and established israeli association for postsecondary education for with learning disabilities. her research focuses on citizenship education, normative aspects of educational and social policy and social effects of war. her areas of expertise include philosophy of education and political philosophy.
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her books include citizenship under fire, democratic education times of conflict in 2006 and cap choices, structured paternalism and the landscape of choice, both of which appeared with princeton university press. welcome to the cato institute or your first appearance. [applause] >> thank you, john 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 now and i mentioned that two other things that inform my reading of this book as my
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current work was preparing teachers through teach for america and working with school administrators where i tried to press on them sympathy key issues that relate to free speech and other legal and social expert dishes that we have a prep dictionaries in the field of education and that also mentioned i am serving currently as the chair of the committee on open expression at the university of pennsylvania, so definitely i am encountering a lot of these matters in the college context. today focusing on this book i would like to basically just raised two-point. one, a philosophical or principled point and the other more practical point.
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the first one, the book exposes the sometimes contradicting foundation on which we rest our exit dish and the schools in the domain of educating for democracy very probably be on free speech. schools are expected to reflect a model democratic principles such as free speech, but given that they are working with children and youth, they are also expected to control their students behaviors and ways that would recognize it unconstitutional in other contexts. so we havehis conflict in demand as basically the starting point for a lot of litigation. in various ways, we expect schools to operate unless democratic ways. we've been society are sometimes administrators the way they see their job and some time the actual legal practices such as
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this would not be acceptable if we talked about children. if we focus for a moment i'm speech solely as an expression of the core values that one hopes, which of course is a subset of all speech and when it comes to children, particularly youth is probably just a smaller subset. we have a lot what would be called worthless speech. even if we think about speech only in the context of speech as expressing core value, schools are meant to reflect reality of value pluralism of society and allow for a variety of views to be heard in considered and this is not only to preserve rights, but also sustain the school is a microcosm of the public sphere and that was the key message coming from tinker. on the other hand, if we think
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about school as a training ground for democracy, rather than a microcosm of democracy, that would more readily accepted the need to regulate legal rights and silence speech. one may reasonably expect school is more strong that guides and mold students including limiting speech rights another right if we think that students are further away from being ready to take on their civic role. so our view of school as a democratic microcosm as a training ground for democracy depends in turn are views of children and youth. are there many adults who should does their civic roles in every study possible or conversely are they barbarians or betrayed to
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the established social order. the book offers framework for reforming current legal approaches are pushing them in a certain direction and informing practice in a way that expand student speech rights. this is firmly placed in the former camp as junior citizens in schools is a reflection of the democratic public sphere. this is very close to the view which has a long history of coors in american public schools and is obviously a very well-established one. but it is worth noting that both in theory and practice of education this review is pretty much considered to have lost so it seems to be peripheral to the more central vision as we see in the court's decision and in the examples that professor ross and i want to present an even more
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extreme version right now appears that this leads me to my second comment. this is a theoretical one now i have a moorpark toccoa comment about the book. in the field of days, the speech rights of students are violated more often than is justified or as seriously as they should both the letter and the spirit it tinker and of this book more than ease legally justified. if indeed schools have, and i quote, a uniquely role in training young people to assume citizenship, it is crucial that not only a scholars and protectors of the law, but also citizens we train a more common practice in contemporary schools that some of us, even as the lord's prayer is not regularly recited in public schools anymore, it is in some parts of the country.
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but not as commonly as in the past. there are many newer practices in school that we should be aware of and concerned about to the extent that we care as we should about student speech rights. many schools today are taking the route that circumvent the entire debate we have today by policing student speech to the extent it doesn't exist within the school world. the discussion of student speech rights of this important book on the existence of the other speech, a speech, a student speaker host a banner, a practitioner responds and then the court has to decide whether in fact the speech act should have been protected, taking into account the content of the speech as we see and the context in which the speech took place, whether within the school or outside the school as we heard.
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it was clear to me as i read the account of the development of the court's view that the more expensive interpretation, which i view as essential to sustaining democratic principles, values and practices in american society cannot be realized in today's education policy environment. essentially i am concerned by the question to what extent can they act of speech be protect it in schools? to what extent can we defend students rights to speak independent of the content of their speech. and a growing number of schools doing research on this for the past two years mostly in philadelphia, and a growing number of schools, especially those in low income minority student, students spend days, weeks and months without being allowed to use their voices. pasternak committees with the teacher at the center of the
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city and a student expected to follow her lead and respond only when spoken to and only their response rate in the teacher's guide. the rear cases focus on the question of limited brad pitt is usually a timer on the powerpoint and it is most common to fortify up to three minutes in u.k. a very limited question such as how would you solve this equation are some times what would you -- my favorite example, what would you do if you are malcolm x. you can two minutes to discuss with your friends, a guided discussion and it's over and we are back to to the teacher. i have seen also numerous cases of speech and the scone tax, particularly when teachers are
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using calls her a chance to draw the students attend should need to make sure they are focusing the teacher would call smart and all the students would have to respond. scholars or whatever ip. -- it might be. if you don't participate in the response, even if you were sitting quietly, not being disruptive, we didn't respond, you would be reprimanded after the suspension. outside these compelled speeches and outside the debates that i just described to you, the rest of the school day silenced including the hallway as most notably for me the lunchroom. speaking to the person next to your lunch is is a privilege
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that has to be earned in which whole schools, kindergarten through 12th grade are required to have lunches as students marched all the single file with one hand covering their mouth so that they remember not to speak. the use of one's voice including whispering and again quite depressingly society, this is considered to be a violation of school behavior code and is met with an automatic community response. the reasoning behind this is the reasonable belief that students must attain a strong level of academic performance in order to succeed in life in different events including a citizen. and also the less reasonable belief that this can only be achieved if they are monitored and limited to these extreme extends and there is one thing is a book i want to read to you
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that shows the courts aligning with this view. this is in relation to the worst-case. judges have read post more as about violence and learning environment as to justify restrict civil liberties where schools are failing. so where we have lower performing schools, we have a stronger reasoning was supposed to justification to them that stood in free speech right another right. the village tirade is a powerful metaphor for those who subvert, undermine or is silence and speech rights and as we see throughout this book, their tierney is expressed in their efforts to soothe dry speech, most notably by defying very speech acts as an except double
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around the other hand useful speech as required within the context of the school. i encourage those of us who care about speech right to can enter those increasingly common practices which may be harder to address within our current legal framework but nonetheless stand in the way the democratic education and would clearly not be supported by a liberty framework that we just heard about from professor boss. to be clear, i wholeheartedly agree it's basic academic chelan equal education opportunity are essential to a functioning democracy for reasons i'm not elaborate here. it is vital that we recognize like reading or math, citizenship is learned by doing them the skills will not evolve as a side effect of maturity or of academic attainment,
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practicing the skills of being a citizen is essential for a new which aims to sustain the public sphere in form five democratic principles, creating and sustaining school environments that support the gradual intentional development and requires focus on the protection of democratic school and firemen in which students free speech and other basic rights are properly recognized and celebrated. thank you. [applause] is to in the part of her strategy from the beginning. it is always part of the kind of outsider status, advocating ideas from 85 or 95 and the one they really had gained traction in some ways.
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we wanted to get people with dominant used to come here and debate us. the first amendment was essential to idea of how we became part of the national conversation. we always want to make sure that things we had at the cato position was that none you did it today, professor ross said that would be part of the cato position, maybe all of the cato advocated for the libertarian position on this. we also do education here in this as an education nexus so i thought to include my colleague, neal mccluskey who does education. he is the director the cato center for educational freedom prior to arriving, he served at the u.s. army, taught high school english and maybe he will have some stories in that time for some is a freelance reporter in suburban new jersey. before the direct are the
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center, he was a policy analyst at the center for education reform. he's the author of how big government coverups and compromises american education and his writings have appeared in all the leading publications. he's been on c-span before, cnn, fox and numerous programs. he holds an undergraduate degree where he double majored in government in english, has a masters degree in political science from rutgers university and a phd in public policy from george mason. welcome. each >> thank you very much and especially professor ross come in thank you for writing the book. to an education policy all the time that that's the basic right in public school is not a subject to get nearly enough attention. all sorts of questions about what we teach, how we teach it,
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how kids interact, those have all been pushed aside the discussion over test scores. what is the test score. either way,, what are test scores. these are topics we need to talk about. there may be some collusion between people run schools and the public transportation system in d.c., trying to keep people away from today's event by closing down conveniently the metro, but we will see. within the book, i especially appreciate the discussion of dangerous federal overreach. i've done some work on the federal role in education, but especially the anti-bullying 2010 letter and someone in the audience over there asked me about this before the event. i hope you can talk about your colleague letters. it was particularly striking that only mention the amendment in a flood of it seems that not to come up more often we get directions to schools about how
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to deal with people's speech. the first amendment shouldn't get one mentioned in the foot now. i do have one huge objection to something about the book on page 273 and i want to put it exactly. conservative groups including the cato institute it is not protected by the first amendment . kiddos libertarian, not conservative enough falls under fighting words. we are not going to call the police in this case but it's an important distinction. [inaudible] >> fight averted. i think it is right that public schools as government entities are often too in client to curb basic expression rights. it's very clear in this book, you will be. we also have to be clear about two things.
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these are concerns i have about the book. one, public schools are often not actually thought of as training places to work out differences are places learning liberty by living it. people tend to not look at schools this way. this is why the topic doesn't come off that much. second, it concerns the use of the term democracy. throughout any education discussion or debate. i would get more into why i think the use of the term is problematic. for the first point, if you even read the major advocate historically, they weren't all that interested in learning liberty by living it is something the schools were primarily about. they were more about shaping people from above. benjamin rush is a pretty well-known founding father, vic
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in philadelphia pennsylvania. he was an early advocate of public schooling and he said you should create a public school system that would render the mass of the people more homogeneous and thereby set to more easily for uniform in peaceable government. he talked about inculcating, and morals. it wasn't about people themselves talking about differences. it was more will take in all the notion of what a proper citizen is come and make people identical and we won't have problems when they're older and able to have liberty. men often called the father of the public schools are the common schools are godfathers of common schools matter what name you gave him, he was the leading advocate for public school at the 1830s, 1840s and he talked about public schools, not really bringing a diverse people to work out differences, but talk about them and making them sort of similar.
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.. he said we should give up the democratic idea that all are equal and our society is devoid of classes. the employee tends to wage a man -- using iq tests to decide your future isn't a factor and maybe your future is in college and this again wasn't oriented toward a public schools are
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where we learned to be citizens who have equal rights with everyone else ever work out our differences ourselves. certainly some did want that. professor ben-porath talked about john dewey. it was much more in this we have schools where kids come together from different backgrounds and work on projects together and to learn to live together. this idea that we should sort of shape pele in the way to be kind of uniform. and again the discussion it seems to me of even those goals today has been fifth, six, seven, 900 primary next the task force. i think that is what in many cases we've reduced education to being. than just talk a little bit about the term democracy, and this comes up a lot. it's important how we use it.
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it's often used interchangeably to mean a lot of things. academy representative government to some people. it can be a leveling to people. people can say it as synonymous with individual liberty. sometimes the people it means majority rule. often innings in some way public control or public rule. this latter notion drives a common belief when we get beyond the test scores that public school should basically respond to whatever the community, however you define that can become once. whoever is being represented by the school board. at least a fundamental clash about what the schools do. the individual rights versus the committee values. sociologists and others that education is a social reproduction. the communities as this is how we shape students to be part of our community, our society. that means have to share our values and to rethink second service. i think you can see that most
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clearly in frederick. nobody ever forgets bong hits four jesus. there's another, go back to the colonial era. another law no one forgets, first law for public schools was called the old deliver same actor if you get jesus in the name of law or court case people remember. in any event i think ultimately there's a fundamental problem especially if we talk about democratic-controlled. the attention of some sort of public control. it's inherently conflictual. conflicts cannot be escaped. now i'm going to do a shameless plug, not really a shameless but we were in some people the public schooling battle met. it's about to go up behind me. i never rely on ability to operate anything. so the battle map, the reason it's your is it supposed to sort of illustrate people how many
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conflicts we have in public schools. this doesn't include how to teach multiplication or what's the right day to start the school year, with our do we start the school day. this is about values and identities based conflicts that we have in public schools. the reason against to be inherently conflictual is that you have diverse people. ideologically diverse, ethnically, religiously diverse but they're all supporting when system and we can't get the system to treat them or to educate them all. one system can teach everything that everybody wants. it can be deceptive just look at it. there are way more complex than you see here because a lot of those little pins -- ago to pull out and look less intense than you think, where nobody lives for instance, no markers there. know there's a lot of places
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with our people, and as you talk to in the book, what makes it to courts, and often what makes it into the media is that every conflict about we that we have. oddly it's the tip of the iceberg. this may just be the tip of the iceberg. the point is to illustrate where constantly having complex over all sorts of issues. the best illustration maybe if you think of library books. on page 101 she notes the schools can choose to buy any book they want to or not by any book they want. for whatever reason. but if you get into the removal of a book, you say, it hurts us i don't think this book is appropriate in the middle school library or i don't think they should be on my child's reading list, that becomes a constitutional issue of is this censorship if you remove it? you can see the problems. should the government be able to favor speech for whatever reason it wants, it seems this book is worthy of having kids read it or
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putting into libra. this book, this beach is not worthy of being in the library. that is inherently conflictual. we have on the map just to illustrate the incredible power of the map and user-friendliness, there we go, is these are all the books banning reading material conflicts we have. probably tip of the iceberg with about 220. this is collected over maybe 10 years, started in 2005. some of them reached for the back but it's just the things we see in the news. and is it unjust ultimately, compels support for those who don't choose to pay for the chocolate war question may not have ready. that's one of the most challenged books. or what about peoples i don't think i should pay for or i don't think my children should have to read the adventures of huckleberry finn.
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how do you balance that with the people who say yes, these are very valuable books to read. government one way or another is making decisions want to read or what not to be. we can talk about human origins. creation versus evolution but inherently there's a problem at least in equality. creationist feel like they're second-class citizens. he might say is religious discrimination that they can't have their viewpoint but you add creationism into injecting religion which is something we don't want government to do. you can't treat all these people equally. a couple more small critiques. it's important to protect speech at the think professor ben-porath talked about this i won't go into too much but i think there's a good argument especially for teachers in the classroom every day for saying you've got a lot of discipline to even if it means people's speech goes way because it can be very difficult to run a class with if you don't have that. even if someone is saying something that is perfectly
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legitimate to point, you can't have your 45 minutes devolve into a debate about something that you need to cover other material, and, of course, for testing purposes you've always got to cover up her material. and, finally, i think there's something about shared norms and beliefs. research by james coleman and others have shown private schools, religious schools may, in fact, outperform public schools. ultimately everyone who goes to that school accepts the schools norms and values and that creates cohesion. you don't have to have as we see in public schools sort of rule by law and regulation, and often a muddling through as you illustrate very well in the book where not osha what to do, how do we decide on what policy or how to treat of the student when we know it will make some angry and others would not like what i do if i don't punish the student. in private schooling everybody,
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you agree basically with the handbook says, and that enables the school to run much more coherently and cohesively, and it may be linked to better academic outcomes. i don't want to say i think this is slam dunk research but there is some research to show this. given the inherent conflict, the only way to truly treat people equally at protect them from government incursions on the rise, speech rights, religious rights come et cetera his educational freedom. give educators for you to start the kinds of schools that want and policies that work, the curriculum to what other those those people freely interact. somebody who wants a maxima expression rights in the school can choose a school lik like th. somebody says i want to know excuses, tough discipline, maybe not even speaking in the cafeteria kind of atmosphere, they can choose that as well. if you're not happy, if you say
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i have chose the school doesn't have a strict anti-bowling policy because i want maximum freedom of a child is getting bullied to the point i can't tolerate it, you can also leave that school and you point out in a book that's a problem with the public school. you're a captive audience. this gives you a way to escape. you can choose schools for any other number of reasons. in that sort of this government would not decide on rights, parents would make those decisions. it could even go elsewhere if they're unhappy. i think it's absolutely important, crucial, to understand the threats to freedom of speech and other freedoms and how to minimize of them in public schools. i think this book does a terrific job of talking about those issues come to an incident, talk about how to resolve them. i especially like the chart. i think it's even more important ultimately to move to a system
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with those threats can be escaped by the people that education system discerns. thank you. [applause] >> his comment about the distinction between conservatives and libertarians are one of my old friend walter burns book, freedom virtue and the first amendment, which was back to the 1950s. if you might be that you will not get the sense it is a libertarian book. it is indeed a very different kind of approach to the first amendment that you can call conservative. that said i think it might be worth emphasizing at this moment most of the conservatives, liberals are almost all the conservatives, liberals and libertarians do i do think new york times v. sullivan was rightly decided, which is to say they don't believe public figures should have protection against libel and most of them i think are frankly appalled to hear successful politicians
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suggest otherwise. and on that note we shall go to our questions and answers. please wait, raise your hand, wait to be called upon. wait for the microphone so we can project this out to the world. announce your name and affiliation unless you think of reason to want to remain anonymous 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 brad hines and i'm with american university. when i went to high school i went to a private catholic high school, so the debates about free speech don't quite match the same. i was wondering if it personal expense that i've had with censorship administration, how that would play out in public schools. i was the editor of the school newspaper's op-ed section and i
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was planning on publishing an editorial opposing the administration's position that it had taken on homosexuality. and they demanded a review the article before publishing it. and ultimately they took several months with the review and to other fiscal coincidentally, but i suppose my question is that when it comes to school sponsored speech, does the administration have the ability to review what students want to say something like school newspaper in a public school? >> absolutely. in a public school they would have, they can say we are redoing everything before comes out. they can censor by a limiting the article altogether by forcing you to rewrite, by taking part out. and the fact the case that created this doctrine was a school newspaper that water to an actual news stories, not opinion pieces about teenage pregnancy in the school and about the impact of divorce on
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students. the principle that essentially got rid of two whole pages of the newspaper because you want to get one of those two articles at the last minute and the court said that was okay, but it went further, didn't limit it only to school newspapers. so while yours was labeled an opinion piece, they might say that you this was not a topic that was appropriate for a school sponsored newspaper or that the viewpoint was so provocative within the community that, you know, i said earlier this can't really say they're going to censor it because it's controversial, but that might be too difficult for some of the younger students to handle. they would find some pedagogical reason. where schools go wrong is they've gotten sort of lazy. they often don't even bother to come up with a reason. they just say can't publish of the and the blues.
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but if they try they can usually come up with something. that's the sadness. i'm actually going the end of this week to talk to the annual meeting of the columbia scholastic journalism association which is a meeting of all of the high school students around student publications and their advisers. so i will probably have similar stories after that meeting. >> the woman in the center in the back row. >> i'm sarah, also from american university. my question, while this does seem to be a general problem across the united states, do you think it should be addressed nationally or in individual communities? >> that's a terrific question. as neil indicated local control is a very important part of our educational system, elected school boards, local superintendents.
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and as far as i'm able to grasp the newly crafted law that replaced no child left behind, the federal government is stepping back from giving the kind of guidance they been giving for the last 10 years. but they constitutional law is federal law. so we would have to have an interplay between an understanding first amendment law interpreted by federal courts and what communities do when the ground. and one of the recommendations i make in my book is that just because the first amendment allows schools to engage in certain kinds of censorship or to place certain inhibitions on student speech doesn't mean that school districts have to use those powers. the one thing that people who
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believe in a model of education that emphasizes learning how to be citizens in an active way might do is run for school board or go and tell the school board, we would like it to be a community in which the school doesn't limit student speech that isn't disruptive, even though he had the power to do that. we would like to send a different message in this environment. usually the people who talk up about speech in the local community are those would like more censorship rather than less, until there's an incident here and once there's a censorship incident, quite understandably principals and school boards tend to dig in their heels rather than to reconsider their policies. thus adjusted this is a good conversation to have before a plan has been canceled or some other issue has arisen.
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>> down here to the right. both of these gentlemen. >> wondering if any of the courts have considered the possibility that educators would be doing well to solicit provocative speech rather than just to allow it? >> i love that idea, but i've never seen a court to say it and i don't know. have you ever seen a principal say it? >> when -- i've seen, i've seen some administrators who profess, who encourage, who encourage controversial speech. there's actually a very interesting study that was published in the book called controversy in the classroom. and to actually show a set of
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cases in which classroom teachers are using controversial opinions as pedagogical vehicles for developing civic capacity over sometimes a writing, learning how to write over speech and debate purposes, it is a regular classroom, not as a 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 the letter also followed up with after they graduated, the extent to which they remain active citizens, to the extent to which they go dark anticipating of the ways. and they do show that when you encourage and also model controversial speech in the
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classroom, for example, when you live in a community where most people, for example, are very strong advocates of the second amendment, edu-con income even if it's not your view as a teacher, but you coming and you say here is why we should have very strict gun control regulation, or the opposite, right? and basically your capacity to encourage students to develop critical thinking skills and respectable debate skills and all of these other capacities that allow you to be a good, active citizen are really strengthened by this. so you do see in practice and teachers and administrators i won't say that this is the mainstream. >> i would just add i think schools and educators tend to avoid controversial issues quite apart from the first amendment question.
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because often the school, sometimes the school has again a diverse community that it's working with and they're just trying to avoid conflicts that might giv get them a hard time. there was work by two political science, and it came out a few years ago now, subsequent work, but that surveyed biology teachers and they found that about 60% of biology teachers soft-pedaled evolution or don't teach it at all mainly because they are trying or they think mainly because they're trying to avoid getting anybody angry. a lot of avoiding controversy isn't even about first amendment. it makes your life easier not to aggravate people. >> teachers can also lose their jobs if parents get angry enough. even if they have tenure. and if they stray from the viewpoint in the curriculum at the school board has chosen, they can get into a lot of
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trouble. >> david. some years ago i worked for the michigan state legislature and worked on the bill to protect the rights of public school students in publishing newspapers. there are plenty of sources of rights for students besides the us constitution. each state has its own constitution and each state can pass statewide laws. so i would like to know has that happened? have state courts relied on state constitutions to protect the students rights? >> terrific question. yes, a number of states have enacted higher protections for student speech rights that are currently found in the federal doctrine from the courts. california basically says the material disruption standard
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applies to every kind of the student speech in k-12, regardless of the supreme court precedence giunta also of years ago passed a law protecting the advisors to high school publications going back to your question about your op-ed piece. if an adviser in california fights to protect the rights of the student journalists, the statute says they cannot be discharged for that. arthe are a number of organizations are actively working to try to get more states to pass more protective laws for student journalists. a number of states came close to doing it but experienced vetoes from governors. one case involved students in a suburb of chicago at a very good high school with an award-winning newspaper who discovered that staff of the school district had gone on
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junkets, and they dug out the travel receipts and showed a state more days in the hotel and meeting went on and things like that, and they were not allowed to publish it in the school newspaper. but the "chicago tribune" found it met all of the standards for journalistic investigations and published it. and after that the illinois legislature passed a student writes statute to cover student journalists and the cover vetoed it. pretty shameful. but that is another place going back to is this a local or a national problem. it's both. >> thank you. asking this question asked my capacity as a high school basketball coach. i'm wondering what your scholarship touches on this issue i've been following the case i think is progressing now. there's a football coach in the
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state of washington who over the course of his career had at the end of games onto 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 join you? of course it's a free country. whenever they say that, they are always wrong. as more and more people joined him for the prayer, he then was suspended and to thin think thee is ongoing. i'm wondering what in your scholarship and research touches on the issue? it seems like it only became a problem when the students came voluntarily to pray with him. >> yes. the last chapter of my book focuses in large part on religious expression by students. one of the problems in this area
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is that next to the doctrine governing student speech, which many judges sort of for a branson said this is just too confusing to me, i don't have to use it, which they do preside over antitrust and other very difficult cases, by trying to make it clearer. next to that, the condition of the establishment clause is an enormous disarray. because the supreme court has basically not relied on a certain old set of doctrine and hasn't really place with anything else. so individual justices have their own approaches to the lower courts don't have much guidance. and so teachers and principals are confused about what amounts to an establishment clause violation. how does this relate to free speech for students? day too often think that if students express religious
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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 clause violation for allowing this to take place. that is clearly not true. the 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 viewpoints to each other. the problem is when you have a teacher encouraging people, then we have a question about his participation really voluntary. so the law is pretty clear, they should be from the students themselves. very different if a group of students say we've noticed the coach has been praying in the middle of the field, and we would like to do that, too. do they do it separately? today joined the coach?
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when the coach says team members whose lives are very much in charge of a lot of the time and under imported authority figure to you, you want to join me, i think that's a closer question. and certainly if he said we are going to do this as a team, that's forbidden. >> the gentleman in the center and then will have a couple more and then we have to wrap up. >> jacob marks, american university. i had a quick scenario question. if a teacher is hospitalized due to an incident at a high school and is assaulted in the process and that's how she ends up in hospital and she pulls on facebook that she ends up in the hospital and gets fired because of it, is now violating her first amendment right. >> i'm sorry speak with i'm sorry. the teacher was assaulted in an incident at school and was hospitalized because of the. while in the hospital she posts
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on a social media site that she was in the hospital. can she be fired for that? >> the law will be different depending where she lives, because the appellate courts are not entirely in agreement, but are that are some limits to what outlook employees, including teachers, can say about their work. and so allah would depend on whether this was considered a matter of public concern or not. hypothetically, if she were, let's say, attacked by a student or by the school principal, that probably did it would seem like a matter of public concern. but if it was something else, then she probably could be. but it's very hard to say
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without knowing both more and where this took place. >> this will have to be our last question. >> isn't this whole issue really more not about free expression but property rights? is an public property the original sin in this whole debate where, public school, the government would not be in a position to be arbiter of speech? >> well, i've never put it that way, and i'm not an expert on property law or anything like that. i do think that that is certainly a problem. if the government were not providing the schools, then most of these issues would go away. there are a lot of arguments for why government provide schools that you could certainly have. i think what's important is we

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