As school systems across the state of Wisconsin cancel another day of classes — the result of massive protests in Madison following Governor Scott Walker’s effort to strip educators of the bulk of their collective bargaining rights — I can’t help but think of the old adage that two wrongs don’t make a right.
Category: First Amendment
Power to the People’s History
(This article also appeared in the Huffington Post.)
My wife likes to tell this one story from when she was in high school, and she asked her U.S. History teacher why the class wasn’t learning more about the Indians. “We don’t have time for the Indians,” he responded. “We have an AP curriculum to get through.”
Had I been as inquisitive as my wife when I was a teenager, I would have received the same answer. So, I suspect, would most of you; indeed, for too many of us, the study of American history ended up being little more than a linear, logical march through the years – filled with neat plot lines of cause and effect, victors and enemies, and a whole lot of triumphant white men.
Like so many others, I didn’t realize there was another way to imagine the chronicling of the American narrative, or the construction of history itself, until I first read Howard Zinn’s A People’s History of the United States. Once I did, my understanding of the world was forever changed.
It was one year ago today – January 27, 2010 – that Zinn died at the age of 87. And it was nearly twenty years ago that I, as a twenty-something American History teacher in Brooklyn, first assigned excerpts of A People’s History to an unsuspecting class of 16- and 17-year-olds.
I can still recall the combination of pleasure and puzzlement when we dedicated precious class time to an extended conversation of the ways industrialization had impacted the lives of women, who, Zinn wrote, “were being pulled out of the house and into industrial life, while at the same time [feeling] pressured to stay home where they were more easily controlled.” There was the unit when we learned that the Fourteenth Amendment to the U.S. Constitution – originally passed to ensure that former slaves were forthwith defined as full “persons” under the law – had instead been overwhelmingly co-opted by clever lawyers intent on protecting the personal rights of corporations. And there was the time of the year when, echoing my wife’s long-ago request, we read the 1838 words of Ralph Waldo Emerson, urging then-president Martin Van Buren to abandon the efforts underway to forcibly remove all Cherokees to make way for American expansion:
The soul of man, the justice, the mercy that is the heart’s heart in all men, from Maine to Georgia, does abhor this business . . . a crime is projected that confounds our understandings by its magnitude, a crime that really deprives us as well as the Cherokees of a country for how could we call the conspiracy that should crush these poor Indians our government, or the land that was cursed by their parting and dying imprecations our country any more?
How indeed? And yet, here we were, being asked a different set of questions, and being forced to make sense for the first time of the many glories and hypocrisies of our national history. A People’s History was, in short, a radical, exasperating, inspiring, motivating vision of America, and of American history. And my students loved it. As one of them told me, years later, “Until I read Zinn, I viewed the world uncritically. But he taught me to mistrust the single viewpoint, to doubt, to verify, to ask more questions, and to always, always look for where the bones are buried.”
As in all things, of course, Zinn is best consumed in moderation; it is as foolish to exclusively teach his writings on American history as it is to solely teach the more sanitized stuff of textbooks. And yet all of us should be grateful for what Zinn helped bring about – a widening of the American narrative, a deepening of our understanding of what it means to be free, and an awakening in our cultural consciousness to forever remind us that, as with so much of life, all is not as it seems.
So on this anniversary of Howard Zinn’s death, I hope you’ll join me in honoring his memory. Visit the Zinn Education Project (http://zinnedproject.org/). Take a more open and honest look at the past. And help ensure that our schools equip students with the analytical tools they need to make sense of — and improve — the world today.
Rest in peace.
America’s Political (Dis)Harmony
I know it’s still January, but I’m already looking forward to March 26, when I’ll visit the National Constitution Center and participate in a program on Civility & Democracy. During that event, which will culminate in a public Town Hall discussion, we’ll have the chance to consider some essential questions of American identity and organization — questions that have been made even more timely in the wake of the public debate following the shootings in Tucson:
- Is partisan rancor the exception or the rule in American politics?
- What would the Founding Fathers think of today’s political climate?
- What factors contribute to eras of extreme partisanship?
- Is partisanship “bad,” or simply the way democracies work?
I had been reflecting on those questions all weekend — and then in yesterday’s Washington Post I read a new piece by George Will, who was himself reflecting on the history of America’s political disharmony. “What made the American Revolution a novel event,” Will writes, “was that Americans did not declare independence because their religion, ethnicity, language or culture made them incompatible with the British. Rather, it was a political act based on explicit principles. So in America more than in Europe, nationalism is . . .’intellectualized’: ‘We hold these truths to be self-evident.’ Who holds them? Americans. Who are Americans? Those who hold those truths to be self-evident.”
Will suggests we are, at our core, a “disharmonic society” because the ideals of [our] creed are always imperfectly realized and always endangered. For Americans, government is necessary, but “the distinctive aspect of the American Creed is its anti-government character. Opposition to power and suspicion of government as the most dangerous embodiment of power are the central themes of American political thought.”
Agree or disagree?
P.S. Next month, a new book of mine (a narrative history of free speech in America) is coming out. The title, We Must Not Be Afraid to be Free, is a line from a Hugo Black opinion, and the book is largely a trip through his career, and his own evolving understanding of how to strike the right balance, both individually and as an open society, between honoring our freedoms and controlling our fears.
Justice Black — a FDR appointee and, as a younger man in his home state of Alabama, a former Klansman — is remembered as one of the Court’s most vigorous defenders of free-speech rights. And yet at the end of his long career, as he watched the social fabric of the country unravel during the 1960s, Black did an about-face — and began ruling against free-speech claims. His own journey therefore provides a useful window into the personal challenges associated with tolerating the exercise of freedoms when the very act of voicing those ideas runs the risk of tearing us asunder.
To Honor King, Embody Our Ideals
(This article also appeared in the Huffington Post.)
Today, Americans will pay tribute to the legacy of Martin Luther King Jr. with school assemblies, community programs and — to the delight of students and adults alike — a national holiday. Yet few if any Americans, at this crucial time in our nation’s history, will directly connect King’s heroism and accomplishments to his faith in — and use of — our primary tools of democracy, the five freedoms of the First Amendment.
This is a missed opportunity. More so than any other part of our Constitution, our laws or our civic principles as a nation, the freedoms of the First Amendment — religion, speech, press, assembly and petition — embody what it means to be an American. Properly understood and applied, they allow us to expand the promise of freedom more fairly and fully to succeeding generations of Americans, and forge unity in the interest of our diversity, instead of at the expense of it.
Every January, the holiday honoring King provides an opportunity to remember both what the First Amendment demands of us as citizens, and also what is possible when we exercise those rights responsibly in the cause of justice and freedom for all.
Consider, for example, the March on Washington for Jobs and Freedom, the iconic 1963 rally that introduced King’s “I Have a Dream” speech to white America — he had delivered those lines in front of black audiences many times before — and produced the most poignant petition for redress of grievances in our nation’s history. Nearly every American is familiar with King’s speech that day. Many of us were asked to memorize it as students. But how many of us were also taught about that day — and the movement — in the specific context of our democratic principles as a nation?
Recall that the march occurred as Congress was wrestling with whether or not to pass President Kennedy’s civil rights program. Recall that young people across the country were being jailed for peacefully assembling to protest the South’s policies of institutional racism. And recall that the quality of our national conversation was still so rudimentary that in the days and weeks before the march, white journalists peppered black commentators with what today seems like a shockingly naïve question — “What is it that Negroes really want?”
King and the other leaders of the movement understood that the best way to counter such naïveté and willful ignorance was by utilizing each of the First Amendment’s five freedoms to appeal to the nation’s conscience. So on that historic day, Aug. 28, they presented a program that celebrated the American belief in religious liberty, beginning with an invocation from the Archbishop of Washington and featuring remarks from the president of the American Jewish Congress; they relied on the press to broadcast images of the massive assembly — ABC and NBC even broke away from their regularly scheduled afternoon soap operas to join CBS and broadcast King’s speech in its entirety; and they petitioned for change with emotional appeals to, in the words of Abraham Lincoln, “the better angels of our nature.”
Nearly a decade of protest and activism reached its symbolic pinnacle when hundreds of thousands of Americans of all colors gathered in the shadow of Lincoln, in the centennial year of the Emancipation Proclamation, to petition the Congress to establish 1963, in the words of organizer Roy Wilkins, “as the year racial discrimination was ended.”
The rest is history, yet both the glory of that day and its unfulfilled promise provide powerful mandates for parents and teachers. As King said later, the night before he was struck down at the age of 39, the future of democracy is always only as secure as the commitment of its youngest citizens. “In 1960,” he preached, “when students all over the South started sitting-in at lunch counters … I knew that as they were sitting in, they were really standing up for the best in the American dream, and taking the whole nation back to those great wells of democracy which were dug deep by the Founding Fathers in the Declaration of Independence and the Constitution.”
As much or more than anyone in recent American history, King had a profound understanding of the principles found in this nation’s “great wells of democracy.” And at the heart of his work was an appeal to all Americans to live up to our nation’s guiding principles and ideals.
Let’s remember that this holiday.
Free Speech for Teachers? Think Again . . .
In case you missed it, there was a major case last week involving the First Amendment rights of teachers to make curricular content decisions. And the Sixth Circuit Court of Appeals’ ruling puts another nail in the coffin of the free-speech rights of public employees.
In the most recent case, an Ohio teacher’s contract was not renewed after controversy erupted over a few book assignments she made with her High School English class. As recently as a decade ago, the teacher may have had a legitimate chance in court (although not neccesarily). That’s because, prior to 2006, the U.S. Supreme Court evaluated public employee free-speech claims by using a test with two basic prongs. First, the court would determine whether the speech in question touches on a matter of public concern. If it did not, the teacher would receive no First Amendment protection whatsoever. If the speech did touch on a matter of public concern, the court would proceed to the balancing prong of the test, in which it would balance the teacher’s interest in commenting upon a matter of public concern against the school officials’ interest in promoting an efficient workplace of public service.
Prior to 2006, courts sometimes sided with school officials even though the public school teachers’ speech touched upon a matter of public concern. In one 2001 case, for example, the Eighth Circuit determined that a school principal did not violate the First Amendment rights of three teachers who were ordered to quit talking about the care and education of special needs students. Subsequent appeals in the case acknowledged that the teachers’ complaints about the lack of care for special needs students touched on matters of public concern. Nonetheless, the appeals court noted that the teachers’ speech “resulted in school factions and disharmony among their co-workers and negatively impacted [the principal’s] interest in efficiently administering the middle school.”
Conversely, in 1993 the Eleventh Circuit reached a different conclusion in the case of Belyeu v. Coosa County Board of Education. In this decision, a teacher’s aide alleged that school officials failed to rehire her because of a speech she made about racial issues at a PTA meeting. The aide said the school should adopt a program to commemorate Black History month. Immediately after the meeting, the principal asked to speak with her and told her he wished she had raised this issue privately rather than publicly. A lower court determined that the speech clearly touched on a matter of public concern, but that the school system’s interest in avoiding racial tensions outweighed the aide’s right to free speech. On appeal, however, the Eleventh Circuit reversed, writing that the aide’s “remarks did not disrupt the School System’s function by enhancing racial division, nor, based on the nature or context of her remarks, was her speech likely to do so.”
This is all a precursor to 2006, however, when the U.S. Supreme Court effectively eliminated the free-speech rights of public employees in its 5-4 decision in Garcetti v. Ceballos. As my friend and former First Amendment Center colleague David Hudson explains, since Garcetti “public employers are able to defend themselves against allegations of retaliation by claiming that employees’ criticisms of government operations were made as part of their official duties.”
Indeed, a pattern has emerged in this post-Garcetti world, in which it has become almost impossible to mount a successful First Amendment lawsuit based on speech that relates to the workplace. In other words, a teacher who wishes to claim First Amendment protection for decisions about curricular content must do so knowing that the same protections s/he would be afforded as a private citizen will not apply to anything so directly related to his or her official duties.
Ironically, the 1969 case that is hailed as the high-water mark for student free-speech, Tinker v. Des Moines, features these lines: “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate. This has been the unmistakable holding of this Court for almost 50 years.”
No longer.
(Postscript: If you’re a junkie for First Amendment law, check out my three books on the subject, including answers to all of the most frequently asked questions as they pertain to First Amendment issues in schools.)
Judicial Activism & the Yelp-ification of Voting?
As someone who never travels without his pocket U.S. Constitution, I loved that yesterday’s New York Times forced me to revisit the two sections that deal with Judicial and Executive power — Articles III and II, respectively.
The article about judicial power was a detailed analysis of the first five years of the U.S. Supreme Court under John Roberts’ leadership. (Spoiler alert: it was really conservative). What interests me more, though, is the ongoing tension between the lofty principles of our common law system (in which our law evolves over time, thanks to the wisdom and restraint of judges who interpret it) and the reality of how those principles get played out in real time (i.e., to the victor go the spoils, stare decisis — or the rule that judges aren’t supposed to go against prior precedent — be damned).
Now that the Court’s makeup favors a conservative bent, the left is up in arms and crying foul. And yet this is exactly what happened a few generations ago, under the Earl Warren-led Court of the 1950s and 1960s. Indeed, under Warren’s leadership the left-leaning Court forged myriad new doctrines regarding civil rights and civil liberties and the very nature of the political system (Thank God!). And so, although I personally disagree with the direction this Court is taking us, I don’t see behavior that runs afoul of the Constitution. It’s an imperfect system, but you can’t only support judicial muscularity when it serves your own purposes. (On a related note, I have a new book coming out later this year on the First Amendment and how our understanding of it has evolved over time. Want to reserve an advance copy?)
Far more complicated was the recent New Yorker article about voting systems, and about how the U.S. lags behind other countries in its efforts to provide a fairer system. The antediluvian nature of our system will become even more pronounced when the stodgy old Brits, of all people, hold a May 2011 referendum on how Britain elects its leaders, likely resulting in an abandonment of the “first-past-the-post” system whereby whoever has the most votes wins. As the article points out, this sort of system only really makes sense if you always have two candidates. But anytime you have three or more, it’s a pretty lousy way to capture the true will of the people. And, not surprisingly, of democracies without any significant past era of British influence, only Nepal has chosen to elect its leaders this way.
As the article points out, the misbehavior of voting schemes in general has been known to social scientists since the mid-twentieth century. “That was when Kenneth Arrow, an economist at Stanford, examined a set of requirements that you’d think any reasonable voting system could satisfy, and proved that nothing can meet them all when there are more than two candidates. So designing elections is always a matter of choosing a lesser evil.”
So what should we do instead? Interestingly, one idea put forth is to rate our candidates the same way we rate restaurants or books online — by rating them across the range of a 4- or 5-point scale — and by using the 2000 election as an example of how it might work. “If a voter likes Nader best, and would rather have Gore than Bush, he or she can approve Nader and Gore but not Bush.” Both schemes give voters more options, and “would elect the candidate with the most over-all support, rather than the one preferred by the largest minority.”
I’m not saying I recommend this, but it’s an interesting idea, isn’t it? And just to provide some perspective, it’s not like changing how we vote in this country is a foreign concept. In fact, nearly one-fourth of our country’s total amendments to the Constitution (or 6 out of 27) have been about changing how we vote — and who can do it.
Which leads to a Monday trivia question — can you name the six voting-related amendments without looking? If you can (and we’re going strictly honor code here), I’ll send you a pocket Constitution of your very own. . .
Why We Celebrate — the (Religious) Origins of the Separation of Church & State
(In honor of the 4th, here’s a short excerpt from my 2005 book with Charles Haynes, First Freedoms: A Documentary History of First Amendment Rights in America –– about the origins of our commitment to religious liberty. It may surprise you . . .)
When New Amsterdam refused entry to a shipload of Quakers in 1657, the clergy of the Dutch Reformed Church were happy to be rid of them. In a letter to Holland, two church leaders speculated the Quakers had sailed to Rhode Island — “for that is the receptacle of all sorts of riff-raff people, and is nothing less than the sewer of New England. All the cranks of New England retire thither. They are not tolerated in any other place.”
Roger Williams, the founder of Rhode Island would probably have taken that as a compliment. He envisioned Rhode Island as a haven for the cause of conscience, and the colony was the first place in America with no established faith, where every person had full religious liberty. It came as no surprise to him that dissenters, non-conformists, and “cranks” ended up in his colony. Where else could they go?
Williams himself needed a haven. He was one of the “riff-raff people,” banished from Massachusetts Bay Colony in 1635 as a heretic and troublemaker. Why couldn’t Massachusetts Bay Colony tolerate Roger Williams? Ask John Winthrop, the first governor of Massachusetts Bay.
Before reaching the shores of New England in 1630, Winthrop was reputed to have stood on the deck of the ship Arbella to remind his fellow Puritans of their God-given mission in the New World. In his much-quoted sermon “A Model of Christian Charity,” he preached that they had left England prepared to endure many hardships in order to establish “a city upon a hill,” an ideal Christian community for all the world to see.
Most of the passengers listening to Winthrop on the Arbella were reformers who despaired of ever “purifying” the Church of England of what they considered corruptions of Christ’s teachings. Unwelcome and often persecuted in their native land, they traveled to a New World seeking freedom to live and worship as they believed God intended.
But the liberty America’s Puritan forebears sought was religious freedom for themselves–not for others. And dissent from this vision of a “holy commonwealth” was not long in coming. In 1631, only a year after the arrival of the Arbella, a young clergyman named Roger Williams arrived in Massachusetts Bay. Williams’s fundamental objection to the colony was religious in nature. More Puritan than the Puritans, he called for the purification of the colony’s churches. This meant, among other things, complete separation from the Church of England.
Williams expressed his separatist ideas without concern for the political consequences or for his personal loss of position or money. His only abiding interest was to build what he called “a wall or hedge of separation” between the “Garden of the Church” and the “Wilderness of the World.” His concept of an uncorrupted church required a complete separation of church and state. For the church to remain pure, he argued, the government must not be involved in religious matters and churches should not be involved with affairs of state.
Williams also argued that every person must be given the freedom to accept or reject God’s call to salvation. Reason and scripture may be used to convince sinners, he believed, but force must never be used–especially by the state. He reminded his fellow Puritans of Europe’s long history of religious wars and divisions. Imposition of religion by the state, he argued, only leads to persecution and bloodshed.
“It is the will and command of God,” wrote Williams, “that a permission of the most paganish, Jewish, Turkish, or anti-Christian consciences and worships, be granted to all men in all nations and countries; and they are only to be fought against with that sword which is only (in soul matters) able to conquer, to wit, the sword of God’s spirit, the Word of God.”
In other words, Williams was convinced that God required “soul liberty,” because God had created every person with freedom of conscience–the freedom to choose in matters of faith. This vision of religious liberty was in direct opposition to the vision of a new Israel proclaimed by Winthrop on the Arbella.
Given this radical departure from Puritan teachings, it is not surprising that Massachusetts Bay, struggling to survive the harsh conditions of New England and fearful that a hostile king would revoke their charter, banished Roger Williams in 1635. Once forced to leave Massachusetts, Williams founded the new colony of Rhode Island. In an extraordinary break with the precedents of history, the new colony had no established religion. Religious liberty was guaranteed to people of all faiths or no faith. Soon Jews, Quakers, and others not welcome elsewhere made their home there.
Few people in the seventeenth century imagined that this unprecedented experiment in Rhode Island could succeed. A society without divine sanction, especially one that allowed dissent, appeared to most observers to have written its own death warrant. But Rhode Island survived and soon became a haven for dissenters not welcome in Massachusetts Bay.
Roger Williams believed that many of the dissenters who flocked to Rhode Island were wrong in their religious ideas. But Williams’s views about other faiths, even his personal hostility to some, did not affect his wholehearted commitment to “soul liberty” for all who settled in the colony he founded.
God, Williams believed, had given people the right to be wrong.
Education and… National Security
I see that President Obama listed education as a core aspect of his overall National Security Strategy. It reminds me of a great piece my former boss and mentor Charles Haynes wrote less than three weeks after the September 11 attacks.
As Charles wrote: “Over the course of this long struggle, the most effective answer to training camps of hatred and terror will be schools of freedom and democracy. While Osama bin Laden and his ilk use tools of indoctrination and propaganda to teach blind obedience, our schools must use democratic principles to instill an abiding commitment to universal human rights.”
This is, of course, as true today as it was then. And yet I wonder — in what ways are our current policy prescriptions addressing this particular challenge, either implicitly or explicitly?
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