First Amendment right of free expression prevents government from political indoctrination and selectively censoring other messages simply because it disagrees with the views being expressed. The Road to Democracy Starts at the Schoolhouse Door; Teaching our Children Beyond the "Three Rs"

Gone are simpler days when students were taught the "Three Rs" -- reading, writing and arithmetic. Today, the schools confront children with complicated social algorithms involving issues such as dress codes, bans on "junk food," zero tolerance disciplinary policies, and political correctness. Undoubtedly, these "educational" changes have come at the expense of more objective lessons that might actually improve academic performance. But, more importantly, the "new curriculum" has sacrificed vigorous public education founded on free expression and a marketplace of ideas on the altar of governmental indoctrination in preferred modes of thought.

The latest and most egregious example comes from San Francisco. There, three school districts (San Francisco, Oakland and, of course, Berkeley) recently passed resolutions condemning any U.S.-led war against Iraq and imposed anti-war messages on the curriculum. These moves, along with scheduled anti-war teach-ins, expose the indoctrination that is part and parcel of today's public educational system.

The very system charged with teaching children democratic values, including the First Amendment right of free expression, has become in many instances a propaganda tool used to brainwash young minds with a predetermined set of values on politically charged issues.

Certainly many schools have done a reasonably good job of expanding the curriculum to include lessons such as how to be a good citizen and obey the law. But others -- far too many -- have transgressed the boundary between instilling civic virtue and imposing a singular world view. Thus, there must be limits on how and what public schools should teach their charges.

While the courts recognize that officials of the state must be given great discretion to determine what subjects are taught, what books are read and what is communicated about each subject to a captive audience of school children, we should not tolerate a public educational process that threatens First Amendment rights by allowing schools to inculcate or suppress student speech and thought.

Early court rulings support this position. In West Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943), the U.S. Supreme Court opined that "[i]f there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein." Nearly twenty-five years later, in Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977), the Court stated that "[a]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the State." Five years later, in Board of Education, Island Trees Union Free School District v. Pico, 457 U.S. 853 (1982), the Court explained that while respecting the broad discretion of school boards in managing school affairs, they may not exercise their discretion in "a narrowly partisan or political manner" because "our Constitution does not permit the official suppression of ideas."

More recent cases have eroded First Amendment protection in the government-operated facilities known as public schools. The courts have become tolerant of far more domination and censorship in the development process of young impressionable minds than government is permitted to play in any other forum of our society. While it is true that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969), courts have placed limits on what students may say and what teachers may teach in the classroom. In Bradley v. Pittsburgh Bd. of Educ., 910, F.2d 1172, 1176 (3d Cir. 1990), the Third Circuit Court of Appeals noted that "[n]o court has found that teachers' First Amendment rights extend to choosing their own curriculum or classroom management techniques in contravention of school policy or dictates."

Indeed, courts have recognized the right of a school board or principal to decide that a certain subject should be taught in a particular way. In Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 683 (1986), the Supreme Court noted that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board."

The full First Amendment free speech rights of students were eroded by the U.S. Supreme Court's decision in Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260 (1988). In Hazelwood, the Court held that public school administrators could restrict expression in school-sponsored forums (such as a school's student newspaper) in a manner reasonably related to legitimate pedagogical concerns. More recently, the Court ruled, in Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819, 833 (1995), that "when the State is the speaker, it may make content-based choices."

Yet, while the government certainly has the authority to take numerous actions based upon prevailing points of view, such authority does not extend to manipulating public opinion. "Government action that stifles speech on account of its message, or that requires the utterance of a particular message favored by the Government ... pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information or manipulate the public debate through coercion rather than persuasion," the Court wrote in Turner Broadcasting Sys., Inc. v. FCC, 512 U.S. 622, 641 (1994). Such government manipulation is constitutionally objectionable because at "the heart of the First Amendment lies the principle that each person should decide for himself or herself the ideas and beliefs deserving of expression, consideration, and adherence. Our political system and cultural life rest upon this ideal." Id. at 641.

The Supreme Court has never held that government speech is immune from First Amendment scrutiny, much less defined the remarkably complex parameters of government speech or the standards by which it should be evaluated. While the line between information and advocacy may sometimes blur, certain situations present clear government advocacy -- literally "promotion" -- intended to change public views and desires.

Undoubtedly, the scheduled teach-ins are an improper governmental attempt to inculcate political values in a captive and impressionable audience. Although government may seek to influence the outcome of socio-political debates by contributing to them, the First Amendment right of free expression prevents government from political indoctrination and selectively censoring other messages simply because it disagrees with the views being expressed.

San Francisco Bay Area school board members should clear the fog from their heads. A curriculum and teach-ins that are viewpoint neutral and allow for controversial debate will teach students valuable lessons in tolerance for ideas, how to communicate and negotiate, how to mediate conflicts, and may even enhance students' capacities to cooperate and to employ self-control. Maybe if students are encouraged to express their individuality through words, thoughts and beliefs, then they could teach public school administrators the difference between education and indoctrination.

February 6, 2003
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