Introduction

 

“Understanding is a wellspring of life unto him that hath it: but the instruction of fools is folly.” – Proverbs 16:22

Over the past week, I took the time to read the cases that defined the structure, limits of power, and culture of the US public education system. We often hear that politics is downstream of culture, yet culture consists of many different components: art, literature, technology, religion, philosophy, and law, to name a few. The latter of these exists in an overlapping state both outside of the culture and within it; for example, art, literature, religion, and philosophy, all may be defined by law, and the law may, in part, be defined by certain aspects of philosophy, religion, literature, technology, etc. The latter of these two relationships will be less concerning for this discussion than the former. I think too much emphasis has been placed on the effect culture has on law, and too little has been placed on the effect law has on culture, and thus, if we are to preserve our consequential relationship, how much law has an effect on politics. My aim for this paper will therefore be to unravel the effect certain Supreme Court decisions throughout the mid-twentieth century have had on the public education system, culture, and thus politics.

I will be exploring several cases, their logic, and their conclusions, and then extracting potential outcomes of the cases in question. The cases I will be reviewing are: West Virginia State Board of Education et al. v. Barnett et al.; Engel et al. v. Vitale et al.; Tinker et al., v. Des Moines Independent Community School District et al.; Bethel School District No. 403 et al. v Fraser et al.; Hazelwood School District et al. v. Kuhlmeier et al.; and lastly, Board of Education of the Hendrick Hudson Central School District, Westchester County et al. v. Rowley.

At the end of this paper, I will weave the conclusions together to try to get an understanding of the general spirit of the decisions, how they affected the public education system, and thus the culture and US politics – if not also world politics.

 

West Virginia State Board of Education et al. v Barnette et al (1943)

 

WV v. Barnette, as I will refer to this case, centered on the constitutionality of compelling children to state the pledge of allegiance. As of 1942, the BOE (Board of Education) had decided that students should salute the flag, specifically that it become “a regular part of the program of activities in the public schools,” and that both teacher and students “shall be required to participate in the salute honoring the Nation represented by the Flag; provided, however, that refusal to salute the Flag be regarded as an act of insubordination, and shall be dealt with accordingly.” The PTA, Boy and Girl Scouts, the Red Cross, and the Federation of the Women’s Club provided a highly considered opinion of the requirement by comparing it to a Hitler salute; they said the salute was “too much like Hitler’s.” Of course, such comments are quite literally nothing more than ad hominem. Yet given these highly astute objections, some changes were eventually made to the flag salute, but the act was still required. Failure to comply with the resolution passed by the BOE resulted in “expulsion” until the student complied. If the student failed to do so, they were recognized as “unlawfully absent,” which opened his parents up to a fine “not exceeding $50 and a jail term not exceeding 30 days.”

A group of Jehovah’s Witnesses took issue with this, claiming their literal interpretation of the bible, specifically Exodus 20:4 “Thou shalt not make unto thee any graven image, or any likeness of any thing that is in heaven above, or that is in the earth beneath, or that is in the water under the earth.” They interpreted the word “graven image” as including flags. In Hebrew, the term they are referring to is “pésel” (פֶסֶל), which literally translates as “statue” or “sculpture,” like the one Aaron built at the behest of the Israelites that would not wait for Moses to return from his congress with God at the top of the mount, where he received the Ten Commandments, resulting in the death of 3,000 Israelites for their insolence, having evoked the wrath of God and Moses. In other words, a flag is not a statue or sculpture, and if they were to genuinely be interpreting this work “literally,” they would have known this.

Regardless, the case does not rest on whether the Jehovah’s Witnesses are correct in their interpretation or not. At issue is the relationship between “the rights of the individual” and “an authority.” Those familiar with the moral foundations should be excited by that juxtaposition! The reason why the BOE, as an authority, decided to implement this salute to the Flag was “to inspire patriotism and love of country” and to promote national unity. The flag as a symbol, according to Judge Jackson, “symbolize[s] some system, idea, institution, or personality,” it is a “short cut from mind to mind.” Even in Jackson’s own words, the Flag, as a symbol to “inspire patriotism and love of country,” when loyalty to that Flag is encultured, produces a “shortcut from mind to mind” recognizing that anyone who pledges their loyalty to that Flag is patriots in common; those who are not common patriots, will not salute the Flag. Justice Jackson even recognizes this as an “effective way” to communicate the idea.

Citing Stromberg v. California, Justice Jackson argues that, because “the display of a red flag as a symbol of opposition by peaceful and legal means to organized government was protected by free speech guarantees of the Constitution,” by employing a flag as a symbol of adherence to the government, and “require[ing] the individual to communicate by word and sign his acceptance of the symbol [and] the political ideas it… bespeaks,” the individual rights of the Jehovah’s Witnesses children were violated. If the expression presents a clear and present danger of action of a kind the State, through its legislature, is empowered to prevent and punish, then it may be prevented or punished. Justice Jackson claims the refusal to salute the flag doesn’t present a clear and present danger, therefore it is not preventable or punishable. In this argument, he negates the sufficient condition and assumes the necessary condition is also negated. For example, if you live in Athens, Greece, you live in Europe. Justice Jackson essentially argues that if you don’t live in Athens, Greece, you don’t live in Europe. You may still live in Europe even if you don’t live in Athens, Greece. In other words, his argument is fallacious.

Also, of note, which can be found in Justice Frankfurter’s dissent, is that the phrase “clear and present danger,” refers to a very specific context, and is not to be used to censor speech outside of that specific context.

Interestingly, he cites Lincoln

“It was said that the flag-salute controversy confronted the Court with "the problem which Lincoln cast in memorable dilemma: `Must a government of necessity be too strong for the liberties of its people, or too weak to maintain its own existence?'" and that the answer must be in favor of strength.”

He then proceeds:

“It may be doubted whether Mr. Lincoln would have thought that the strength of government to maintain itself would be impressively vindicated by our confirming power of the State to expel a handful of children from school.”

Notice the appeal to emotion; he continues:

 Such oversimplification, so handy in political debate, often lacks the precision necessary to postulates of judicial reasoning. If validly applied to this problem, the utterance cited would resolve every issue of power in favor of those in authority and would require us to override every liberty thought to weaken or delay execution of their policies.”

Hence, why it is reasonable to conclude that Lincoln, by violating the rights of the people of the Southern States, was acting tyrannically; his own thoughts, identified through his words, belie this quality of tyranny found more so in his actions. Regardless, Justice Jackson continues:

“Government of limited power need not be anemic government. Assurance that rights are secure tends to diminish fear and jealousy of strong government… ”Rights afforded by whom? The US, which we are not inculcating in children? He proceeds, “by making us feel safe to live under it makes for its better support. (italics added)” Notice also the appeal to safety and recall his continual rebuke of authority. He goes on, “Without [the] promise of a limiting Bill of Rights it is doubtful if our Constitution could have mustered enough strength to enable its ratification. To enforce those rights today is not to choose [a] weak government over [a] strong government. It is only to adhere as a means of strength to individual freedom of mind in preference to officially disciplined uniformity for which history indicates a disappointing and disastrous end.”

Based on my previous writings, I would open myself up to rebuke if I did not acknowledge that uniformity is a problem, especially when it is the result of arbitrary and unjust authoritative decisions. Yet this doesn’t seem to be the case here. The BOE and WV State legislature decided that to promote a love of Nation, i.e., National Unity, it is necessary for students to salute the Flag that represents that Nation, her freedoms, and rights, which are secured through duties imposed on her citizens. The children could not have those freedoms without the duty of others. In arguing for safety, Justice Jackson also opens himself up to critique. Why is it that safety is found in nearly unbridled individuality? A group of mere individuals is not unified. Disunity can cause instability, which causes harm to those who are not organized or unified. If you’re unified, you’re less like to suffer harm; i.e., Unity provides safety. Some national unity can lead to safer conditions. West Virginia, by requiring its students to pledge allegiance to the US flag, is promoting national unity (see the footnotes for WV v. Barnette), which can lead to more stable and secure, or safer conditions for its children in the future. If there are unsafe, less secure, or stable conditions, then the Nation is likely less unified. Requiring the pledge of allegiance by students and teachers is a way to promote National Unity, potentially making the country safer.

At the heart of this matter is an irrational argument. By violating the rights of the Jehovah’s Witnesses, as Justice Jackson sees it, by punishing their children for not reciting and pledging allegiance to the Flag, WV was violating the principles of the US. Justice Jackson argues that “[the previously referenced principles] grew in soil which also produced a philosophy that the individual was the center of society, that his liberty was attainable through mere absence of governmental restraints, and that the government should be entrusted with few controls and only the mildest supervision over men’s affairs.” His argument is analogous to the contemporary Libertarian argument: “I literally only care when the government gets involved.” Yet this is a deeply flawed understanding of the concept of government established by Madison et al. and argued for in Federalist Papers 10 & 51. They neither wanted a Syndicalist Government nor an Anarcho-Tyranny. They wanted a Confederated Government of democratically elected representatives from various States, each constituency checked by the other’s interests, constrained by a legal document or the Constitution.

His anti-Government sentiment rests upon the fact that “compulsion as here employed” (as opposed to where else?), “is an [im]permissible means for its achievement,” as he goes on to argue. He states that “We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent,” except of course when conscripting men to fight in wars. Nevertheless, he goes on: “Authority here is to be controlled by public opinion, not public opinion by authority (italics added).” I believe this argument is inherently flawed.

If the public elect representatives, they give them authority. As an authority, they may demand some conformity. Thus, we shall make the necessary inference that the public may demand some conformity. If conformity is the problem, then the public is also a problem. I.e., the public may grant an authority control over their opinions. Thus, rights are not secured by public opinion alone, if at all (here also may be a problem with the very idea of Populism).

Yet he overlooks this kind of logic, if he thinks about it all, and proceeds with his argument.

“Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies”, (all?), “are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds.” He proceeds to equate eccentric ideas, or ideas outside the realm of conventional thought, or eccentric or unconventional people, as equivalent in nature to those of nonconforming children. The eccentricities or non-conventionality of adults is qualitatively different from that of children, whose whims we would be wise not to merely indulge unless we are to argue they are of the same experience as their seniors, which is patently absurd.

The problem with this quasi-Libertarian line of thinking can be seen in the following syllogism. Government Institutions are costly to the individual. If this were not so, the Constitution and its Articles would create no duties for its citizens. The Government obligates certain actions from its members and is thus costly to the individual. However, if he can, he will avoid his duties because they are costly; most rational actors that can avoid a cost while accruing a benefit will. Without support, governments disintegrate. If you want a government, you must compel the individual to support it. By requiring the pledge to promote National Unity, WV’s BOE aimed to promote security and stability, or safety, thus decreasing the potential for governmental disintegration. The argument that the pledge does not achieve this goal rests on a poll conducted by the New York Times (see WV v Barnette’s footnotes). By suggesting the individual may pick and choose which duties he has to abide by according to his whims, Justice Jackson is tacitly making the argument that no government should exist, as most rational actors would not support the government if they didn’t have to and, more importantly, if they didn’t want to; if no one supported the government because they didn't feel like doing so, no government would exist. 

In his dissent, Justice Frankfurter argues the actions of WV’s BOE were not unconstitutional and that they did not violate the 1st Amendment rights of the individuals in question, who – at the time – could choose whether they wanted to go to a public school or not; i.e., it was not compulsory. “[Justice Frankfurter couldn’t] bring [his] mind to believe that the ‘liberty’ secured by the Due Process Clause [gave the] Court authority to deny to the State of West Virginia the attainment of that which we all recognize as a legitimate legislative end, namely, the promotion of good citizenship, by employment of the means here chose.”

Justice Frankfurter’s argument proceeds by suggesting the WV legislature acted “reasonably” when it required all of its pupils to salute the Flag as “part of school training in citizenship.” In creating this law, WV did not establish any state religion; no particular religious community or creed is being discouraged from practicing its faith as it so chooses. If it did do so, WV’s BOE would be violating the Constitution. He argues that “legislative power is by no means wanting whenever a general non-discriminatory civil regulation in fact touches conscientious scruples or religious beliefs of an individual group.” He argues that it is beyond the Court’s power to “rewrite the State’s requirement, by providing exemptions for those who do not wish to participate in the flag salute or by making some other accommodations to meet their scruples.” In other words, by granting an exemption to the students in question, the Court is extending its power beyond its authority.

He makes clear what the consequences of this decision could be, given that its ruling lacks Constitutional merit and is judicial overreach:

“Conscientious scruples, all would admit, cannot stand against every legislative compulsion to do positive acts in conflict with such scruples.” Just because you find something immoral, in other words, doesn’t mean you are not obligated to carry out the action as a duty or to grant someone their rights. The Constitution “gave religious equality, not civil immunity. Its essence is freedom from conformity to religious dogma, not freedom from conformity to law because of religious dogma. Religious loyalties may be exercised without hindrance from the state, not the state may not exercise that which except by leave of religious loyalties is within the domain of temporal power. Otherwise, each individual could set up his own censor against obedience to laws conscientiously deemed for the public good by those whose business it is to make laws.”

The fact that the State cannot establish a religion does not mean “that all matters on which religious organizations or beliefs may pronounce are outside the sphere of government. Were this so… there would be the subordination of the state on any matter deemed within the sovereignty of the religious conscience.” This would create an ultimate minority rule: the whims or scruples of a single individual could determine whether a law is enforceable or not; such logic is madness, yet it is precisely what has been affirmed by Justice Jackson. Justice Frankfurter goes on:

“Socrates lives in history,” not simply because he was bothersome to the Athenian ruling class, “but because he gave his life for the conviction that duty of obedience to secular law does not presuppose consent to its enactment or belief in its virtue. The consent upon which free government rests is the consent that comes from sharing in the process of making and unmaking laws. The state is not shut out from a domain because the individual conscience may deny the state's claim.”

Justice Frankfurter argues that “one may have the right to practice one's religion and at the same time owe the duty of formal obedience to laws that run counter to one's beliefs.” Simply because the Jehovah’s Witnesses believe the flag is a “graven image” and do not wish to work for or serve it, does not mean they are not obligated to act with respect to the law; their beliefs do not, in themselves, annul the law. “Compelling belief implies denial of opportunity to combat it and to assert dissident views. Such compulsion is one thing. Quite another matter is submission to conformity of action while denying its wisdom or virtue and with ample opportunity for seeking its change or abrogation.”

Justice Frankfurter’s essential argument is this:

“That which to the majority may seem essential for the welfare of the state may offend the consciences of a minority. But, so long as no inroads are made upon the actual exercise of religion by the minority, to deny the political power of the majority to enact laws concerned with civil matters, simply because they may offend the consciences of a minority, really means that the consciences of a minority are more sacred and more enshrined in the Constitution than the consciences of a majority.”

By this decision, the Court overreached and deprived States, whose legislators were democratically elected, of the right to enact laws that stand in for the voice of the democratic will of the people that the minority finds merely unscrupulous or which go against their moral tastes. The democratic will of the State of West Virginia was effectively silenced.

Before we move on to the next case, I would like to highlight the key conclusions of the WV BOE v. Barnette et al. Students did not have to pledge allegiance to the American Flag if they found doing so unscrupulous. This decision by the Court can reasonably be construed as Judicial overreach. In making this decision, the judiciary violated the democratic will of West Virginia, which though not precisely reflected in the laws written by the legislature, can be reasonably considered the effect of their will. Ultimately, this gave minorities (even just individuals) in a State the grounds to argue against the will of the majority simply if they found that will antithetical to their desires. This decision can also be seen as an attack on the concept of National Unity or Patriotism. By attacking the State’s will that, while in a public school, its children learn proper citizenship by pledging allegiance to the Flag, it undermined each State’s ability to promote National Unity or Patriotism; i.e., to inculcate the concept of citizenship in their children. If States could not promote National Unity or Patriotism without subjecting themselves to claims that the scruples of an individual or group have been violated, then it would be less likely that they would seek to promote National Unity or Patriotism. Effectively, this ruling seems to have been a symptom of a new trend in the US: the tyranny of the minority.

 

Engle et al. v. Vitale et al. (1962)

 

Flashforward 19 years later and we get Engle et al. v. Vitale et al., a case centered around the constitutionality of an opening prayer in school classrooms. The prayer was to follow the pledge; it was not compulsory, students weren’t required to be in class at the time the prayer was stated by the teacher, and it was so brief as to hardly account for any significant cost to the taxpayer. The prayer read as follows:

"Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country."

The purpose for the prayer provided by the State of New York’s officials was as follows:

"We believe that this Statement will be subscribed to by all men and women of good will, and we call upon all of them to aid in giving life to our program."

At issue was whether or not a State or the Federal Government could proscribe the use of a prayer for any group. No such prayer was compulsory, there could be no penalty for not stating the prayer, nor for failing to remove any piece of garment, such as a cap.

Presenting his case, Chief Justice Black references the actions of The Church of England, e.g., the Book of Common Prayer, and the many religious and sectarian conflicts of Europe, causing many Americans to seek religious freedom in the US, as grounds to argue that neither States nor the Federal Government can proscribe the use of prayer. His interpretation of the 1st Amendment doesn’t seem to follow from its wording, nor does it generally conform to the “Establishment Clause” standard; i.e., neither States nor the Federal Government may promote or prevent the proliferation of any one religion.

He does seem to recognize this, however:

“The Establishment Clause, unlike the Free Exercise Clause, does not depend upon any showing of direct governmental compulsion and is violated by the enactment of laws which establish an official religion whether those laws operate directly to coerce nonobserving individuals or not.”

Yet the question stands: is the state of New York establishing an official religion? First, Justice Black takes no time to show whether or not New York’s statute counts as an official religion. Secondly, he does not establish a standard by which we can discern whether a State or the Federal Government is establishing an “official religion”; i.e., what even is an “official religion”?

Justice Black’s argument relies primarily on analogy and history, and he references the law or established precedent only seldomly. He implies the case before him is equivalent to his historical examples. However, the quality and essence of the two are very different. Several examples he cites lead to punishment; the matter that was brought before him was not punishable. Several of the examples also referenced the establishment of an official religion; the matter that was brought before him was not about the establishment of any official religion. If it were, Chief Justice Black failed to demonstrate New York was establishing an “official state religion.” Many of the examples he cited also forbid the free exercise of other religious practices; in no way did the matter brought before him forbid or limit the freedom of other groups to practice their religions. In other words, his argument from analogy doesn’t work because the two matters are so qualitatively dissimilar. No reasonable conclusion could be drawn from the analogy he made.

And to be clear, Chief Justice Black acknowledges New York’s law did not amount to the establishment of religion:

“It is true that New York's establishment of its Regents' prayer as an officially approved religious doctrine of that State does not amount to a total establishment of one particular religious sect to the exclusion of all others— that, indeed, the governmental endorsement of that prayer seems relatively insignificant when compared to the governmental encroachments upon religion which were commonplace 200 years ago.”

Indeed, it does seem “insignificant” primarily because the argument presented via historical analogy lacked any sort of legal substance.

Mr. Justice Douglas concurs with Chief Justice Black, yet his argument is also rather anemic. Justice Douglas’ argument rests on how the government needs to remain neutral when it concerns matters of “theology or ritual.” While it is true that the 1st amendment forbids the promotion or prevention of an established State or Federal religion, like Christianity, Islam, or Sikhism, it does not prevent any member, or religious constituency, from using their political will to effect laws that reflect their values, effectively enabling a State or the Federal Government to act as an arm of their political will. In this regard, the Government need not remain neutral. In citing Justice Rutledge, Justice Douglas continues to make this flaw:

“‘The great condition of religious liberty is that it be maintained free from sustenance, as also from other interferences, by the state. For when it comes to rest upon that secular foundation it vanishes with the resting. Id., Par. 7, 8. Public money devoted to payment of religious costs, educational or other, brings the quest for more. It brings too the struggle of sect against sect for the larger share or for any. Here one by numbers alone will benefit most, there another. That is precisely the history of societies which have had an established religion and dissident groups.’ (italics added)”

The part of the quote I italicized was not lost on the Founding Fathers; referring again to Federalist Paper 51, Madison et al. clearly knew that disagreements were to follow from the desires of men and their reasons were to accord with their desires. They, therefore, needed to be kept in check by the interests or desires of other men. The question is not whether a religious constituency may or may not receive or use federal funds; such a matter does not establish any one State or Federal religion. The issue of majority or minority interests was to be balanced not by the judiciary, but by the legislature (whose will was to be done by the executive and judiciary). The legislature was to reflect the will of the people, and stand in for the will of the people, regardless of whether it genuinely reflected the will of the people. The problem of competing group interests was not to be resolved by forcing the people to remain neutral or to conform, but to enable more liberty; i.e., to let the people of the United States freely choose and decide for themselves where they were to go, what they were to do, how they were to manage the resources they had and how they were to implement the resources they received, and how they were to effect their political will, which of course could be defined by religious values or principles. The goal was never neutrality nor was that even achievable. How can a society be composed of self-interested individuals or groups and remain neutral? It obviously couldn’t: the values of some group would eventually present themselves; someone’s values would always make their way into the workings of the State and Federal governments, and the Founding Fathers knew this. Unfortunately, Justice Douglas did not seem to recognize this.

Yet Justice Stewart seems to have valiantly tried to preserve the New York statute, without much success. His argument primarily rests on the many historical precedents of States, the Federal Government, and officials referencing God or the Creator in their proscriptions or official statements. His arguments rely on this structure: Either everyone who proscribed into the law matters that referenced God or the Creator understood the Constitution or they did not. If they did, the ruling by the majority, Chief Justice Black, had no merit or if it had merit, they – including George Washington and the proscription of the National Anthem and Pledge of Allegiance by Congress – were wrong. The argument would have merit if the State of New York established a religion; it did not. If there was no establishment of an official religion, then it was constitutional. If their actions were constitutionally sound or constitutional, this case does not have merit. Therefore, everyone who proscribed into law references to God in the past understood the Constitution, this case doesn’t have merit, and if a matter is constitutionally sound, then a decision against it lacks merit; everyone who proscribed into law references to God in the past understood the Constitution and thus acted constitutionally.

In other words, this case overturned a constitutionally protected and defensible tradition in this country to appease the scruples of a minority and to force the majority to conform to their moral standards. I.e., the legislative will of the people was, once again, overturned. With regards to public schools, this also undermined a State’s and institution’s ability to raise its children as it pleased; to do so would be a violation of the rights of a minority of people, according to the majority ruling, and thus the traditions of this country, which made clear reference to God and a Creator (see de Montesquieu, pp. 34-37), and helped to form an understanding of why this country operates as it does, why it has the laws it has, and what those laws were intended to instantiate, were undermined or annihilated. Public Schools would no longer be capable of conveying the traditions of this country without a reference to a Creator God or educating its children in those traditions. By this decision, the thread tying the individual to the past was severed.

 

Tinker et al v. Des Moines Independent Community School District et al. (1969)

 

In Des Moines, Iowa, a group of children from the Tinker family sought to “publicize their objections to the hostilities [in] Vietnam” by wearing black armbands. The principals of Des Moines schools became aware of the plan. They decided to punish any student who would not remove the armband in school. If they refused to remove the armbands “[they] would be suspended until [they] returned without the armband.” The Tinkers were aware of this policy. The Tinkers decided to wear their armbands. They were “all sent home and suspended from school until they” returned without their armbands. They didn’t return to school until after the planned protest period.

The district sought to uphold the policy to “prevent disturbance of school discipline.” Materials like the black armbands “cannot be prohibited unless [they] ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.” The question is not whether the wearing of the black armbands was protected under the 1st amendment. The question is whether the wearing of black armbands caused a material and substantial disturbance, such that it interfered or could interfere with appropriate school discipline or procedures.

Both the assenting and dissenting opinions present the disorder that occurred in the school very differently. The footnotes state this:

“The only suggestions of fear of disorder in the report are these:

‘A former student of one of our high schools was killed in Viet Nam. Some of his friends are still in school and it was felt that if any kind of a demonstration existed, it might evolve into something which would be difficult to control.’

‘Students at one of the high schools were heard to say they would wear arm bands of other colors if the black bands prevailed.’”

School authorities also did not think public schools were appropriate places for political demonstrations, which might follow given they could materially and substantially disrupt school procedures.

Mr. Justice Fortas describes the events as such:

“Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.”

Mr. Justice Black presents a different perspective:

“While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration." Even a casual reading of the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school with his armband.”

Unfortunately for us, there is no definition for “materially and substantially.” However, I’m not sure Justice Fortas’ claim that the wearing of armbands in “the circumstances of this case was entirely divorced from actually or potentially disruptive conduct by those participating in it. (italics added).” Students claimed they would wear armbands of the opposite color than the Tinkers, they would thus generate an identity in contradistinction to the Tinkers; conflict was therefore a potential. Two opposing forces could cause discordance, which could thus potentially disrupt the schools’ procedures. In other words, when Justice Fortas says “entirely” does he mean it? I don’t think it’s honest to claim the Tinkers’ actions wouldn’t have caused any disruptions; they did cause disruptions and could cause disruptions. Those disruptions might reasonably be construed as having been substantial or materially significant. However, it’s not even clear based on this ruling what “materially and substantially” even mean, nor do the cases cited by the Justices (Burnside v. Byars and Blackwell v. Issaquena County Board of Education) define it for us.

This is, in essence, the standard: Schools may censor student expression if it causes material or substantial disruption; if the actions of students cause material or substantial disruption, then the schools may censor a student’s expression. If the schools may not censor the student’s expressions, then the student’s actions caused no material or substantial disruption. But who determines what “material and substantial disruption” are? There is a more substantive standard presented further on in the paper, but if this standard was used in the ruling, based on the facts of the case, it seems to be overlooked:

Justice Fortas states:

“As we have discussed, the record does not demonstrate any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities, and no disturbances or disorders on the school premises in fact occurred. These petitioners merely went about their ordained rounds in school… They neither interrupted school activities nor sought to intrude in the school affairs or the lives of others. They caused discussion outside of the classrooms, but no interference with work and no disorder. In the circumstances, our Constitution does not permit officials of the State to deny their form of expression.”

The argument that I think can be reasonably extracted from this statement is as follows: If they could or did interrupt school activities, school affairs, or the lives of others, then their expression wouldn’t have been protected. There is evidence, cited by Justice Black and recorded in the footnotes, that they did interrupt school affairs, and one of the students threatened them. Other students were also planning on forming an identity in contradistinction to the Tinkers, which could be foreseen as causing significant disruptions. I fail to see how, based on this standard, their expression was protected by the 1st amendment. The initial formula is designed as a disjunctive statement, so one of the three sufficient conditions must be met for the necessary condition to be fulfilled, while the contrapositive is designed as a conjunctive statement, requiring all three necessary conditions to be fulfilled.

Regardless, the “materially and substantially” standard clearly was the means by which the court overthrew the principals of the Des Moines schools’ opinion. Justice Black makes this clear:

“The Ferguson case totally repudiated the old reasonableness-due process test, the doctrine that judges have the power to hold laws unconstitutional upon the belief of judges that they "shock the conscience" or that they are ‘unreasonable,’ ‘arbitrary,’ ‘irrational,’ ‘contrary to fundamental `decency,' or some other such flexible term without precise boundaries. I have many times expressed my opposition to that concept on the ground that it gives judges power to strike down any law they do not like. If the majority of the Court today, by agreeing to the opinion of my Brother FORTAS, is resurrecting that old reasonableness-due process test, I think the constitutional change should be plainly, unequivocally, and forthrightly stated for the benefit of the bench and bar”

For Justice Black, it is not the position of the Court to decide what is reasonable. What exactly is meant by such a term in this context? What exactly is meant by “substantially and materially” as well? Neither of these terms are defined, and it's not clear (if they are not able to define these terms) whether they should be used as standards to adjudicate a case, creating a precedent the schools must follow. While this is my belief, I believe Mr. Justice Black creates an issue as well. He defends the rights of states to create laws and statutes with language that limits the speech of students. Building on the idea that “it is a myth to say that any person has a constitutional right to say what he pleases, where he pleases, and when he pleases,” which makes sense, he also says “the Court should accord Iowa educational institutions the same right to determine for themselves to what extent free expression should be allowed in its schools as it accorded Mississippi with reference to freedom of assembly.” The case he is referencing is Waugh v. Mississippi, in which the court decided that a law barring Greek letter fraternities the right to peaceable protest was constitutional, stating “It is not for us to entertain conjectures in opposition to the views of the State and annul its regulations upon disputable considerations of their wisdom.” Let us say a State created a law with an arbitrarily definable term, and a case involving said law was brought before the Court. It would be the Court’s obligation to define the term to determine what the legislature meant by the law when they wrote it. This means two things: The Court can construe in these terms whatever they decide to or they must simply let the law and an authoritative agency’s decision about the law stand because they lack the capacity to construe these terms. Yet they must construe such terms; it makes no sense to grant an authoritative agency the power to construe these matters and not the courts, as well. Thus, they are likely to project whatever they want into them, granting the Court the power to not only ensure the law as it is written is enforced but to write their own opinions into the law. I like to call these terms “weasel words,” and we will see more of them.

Yet Justice Black also presents a prophecy, which could manifest as the result of this decision, given a Court’s ability to broadly construe what “materially and substantially” even mean:

“This is the more unfortunate for the schools since groups of students all over the land are already running loose, conducting break-ins, sit-ins, lie-ins, and smash-ins. Many of these student groups, as is all too familiar to all who read the newspapers and watch the television news programs, have already engaged in rioting, property seizures, and destruction. They have picketed schools to force students not to cross their picket lines and have too often violently attacked earnest but frightened students who wanted an education that the pickets did not want them to get. Students engaged in such activities are apparently confident that they know far more about how to operate public school systems than do their parents, teachers, and elected school officials. It is no answer to say that the particular students here have not yet reached such high points in their demands to attend classes in order to exercise their political pressures. Turned loose with lawsuits for damages and injunctions against their teachers as they are here, it is nothing but wishful thinking to imagine that young, immature students will not soon believe it is their right to control the schools rather than the right of the States that collect the taxes to hire the teachers for the benefit of the pupils.”

With his decision, Justice Fortas and his fellow assenters expanded the Court’s power, granting the students the right to express themselves with “pure speech”, i.e., with speech that is conducted by “patrolling, marching, and picketing on the streets and highways” (Cox v. Louisiana, 1965). Students were thus granted the right to protest in schools unless they “materially and substantially” interfere with the school’s procedures, which is a seemingly undefinable phrase. Without this definition, a school may arbitrarily prevent speech by claiming it “materially and substantially” interfered with the school’s procedures or so too may a court. Whether a student protest is protected is up to those in power to determine if it is protectable. To boot, Students, if they are afforded the same rights as adults, will feel as if they can govern the procedures of the school to which they belong, inverting the goal of education, which is to educate the youth rather than have the youth determine what is an appropriate education for themselves. More than this, it also promotes merely symbolic expression, without any significant substance. If these expressions lack substance, if they’re nothing more than what you take from them (what does a black armband really mean beyond what you give it?), they replace and promote substantive speech and expression with merely symbolic expression.

 

Board of Education of the Hendrick Hudson Central School District, Westchester County, et al. v. Rowley, by Her Parents, Rowley et ux.

 

Hudson v. Rowley is a case that rests on whether or not the Hudson Central School District was abiding by the 1975 Education for All Handicapped Children Act (EHA). Pursuant to the EHA, handicapped children must have the ability to receive a free public education and to have that education tailored to meet their needs; they were to receive an Individualized Educational Plan or an IEP, and thus would have certain rights afforded to them based on their IEP status, compelling the school to act in a certain manner. In writing, an IEP must consist of:

"(A) a statement of the present levels of educational performance of such child, (B) a statement of annual goals, including short-term instructional objectives, (C) a statement of the specific educational services to be provided to such child, and the extent to which such child will be able to participate in regular educational programs, (D) the projected date for initiation and anticipated duration of such services, and (E) appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved." § 1401(19).

Any changes made to the IEP require the parents or guardians of a handicapped child to be notified, specifically changes in identification, evaluation, educational placement, or the “provision of a free appropriate public education.” Any aggrieved party has the right to “findings and decisions” and “the right to bring a civil action with respect to the complaint… in any State court of competent jurisdiction or in a district court of the United States without regard to the amount in controversy.” If a State fails to provide the necessary provisions, the Federal Government may withhold funds from the State or institution (agency) until the necessary requirements have been satisfied.

Amy’s case is of particular importance because it helps us to understand what counts for the standard of education for handicapped children and for non-handicapped children, as well. With respect to Amy’s case, she was a deaf child who received an IEP so that she may receive her “free appropriate public education,” as all non-handicapped students are entitled to receive. Here is what follows:

“An interpreter had been placed in Amy's kindergarten class for a 2-week experimental period, but the interpreter had reported that Amy did not need his services at that time. The school administrators likewise concluded that Amy did not need such an interpreter in her first-grade classroom. They reached this conclusion after consulting the school district's Committee on the Handicapped, which had received expert evidence from Amy's parents on the importance of a sign-language interpreter, received testimony from Amy's teacher and other persons familiar with her academic and social progress, and visited a class for the deaf.”

Upon request, Amy was later denied the interpreter she had initially had access to, likely because it was concluded that “[she] did not need… an interpreter in her first-grade class[].” The Rowleys thus brought an action in the “United States District Court of the Southern District of New York, claiming that the administrators’ denial of the sign-language interpreter constituted a denial of the ‘free appropriate public education’ guaranteed by the act.”

The case then proceeds:

“The District Court found that Amy ‘is a remarkably well-adjusted child’ who interacts and communicates well with her classmates and has ‘developed an extraordinary rapport’ with her teachers. 483 F. Supp. 528, 531 (1980). It also found that ‘she performs better than the average child in her class and is advancing easily from grade to grade,’ id., at 534, but ‘that she understands considerably less of what goes on in class than she could if she were not deaf’ and thus ‘is not learning as much, or performing as well academically, as she would without her handicap,’ id., at 532. This disparity between Amy's achievement and her potential led the court to decide that she was not receiving a ‘free appropriate public education,’ which the court defined as ‘an opportunity to achieve [her] full potential commensurate with the opportunity provided to other children.’ Id., at 534. According to the District Court, such a standard ‘requires that the potential of the handicapped child be measured and compared to his or her performance, and that the resulting differential or `shortfall' be compared to the shortfall experienced by nonhandicapped children.’”

In short, the claim was made that she was falling below the average, thus she wasn’t reaching her full potential. In other words, if someone is falling below the average, they aren’t reaching their full potential. If Amy weren’t deaf, she would be able to learn more; If an individual wasn’t handicapped, they’d be able to learn more. If she were learning as much as she could, then she wouldn’t be below the average. If a student weren’t handicapped, they could learn more, they wouldn’t be below the average, and if they weren’t falling behind, they wouldn’t be below the average. Therefore, if the student weren’t handicapped, they wouldn’t be falling behind, and if they weren’t falling behind, they wouldn’t be handicapped.

Obviously, this logic is semantically flawed. Even if she were doing better than the class average, she still might not be reaching her full potential. Comparing her to her peers is not an adequate standard. For example, if I compared the heights of professional basketball players, and several players were on the lower quartile of the distribution, we could claim they were short. Yet are they short relative to their fellow basketball players or short in general? They are not short in general. There may be someone who is taller than them and who isn’t a professional basketball player, but in all likelihood, they’re taller than the average man. The point stands for handicapped children. How is comparing a handicapped child’s performance to their peers a legitimate standard? She may be falling below the average of the class and her peers, but her peers may simply be extremely gifted children. The inverse may be true as well: her peers may not be extremely gifted children, and as such, she may not be falling below the average of the class. In either case, are we confident she isn’t reaching her full potential or that she is reaching her full potential? No, because at issue is what it means for her to have received access to a “free appropriate public education (italics added),” not whether, upon receiving a public education, a student is reaching their full potential. There is no way to determine whether someone is legitimately reaching their full potential.

 “’The term `free appropriate public education' means special education and related services which (A) have been provided at public expense, under public supervision and direction, and without charge, (B) meet the standards of the State educational agency, (C) include an appropriate preschool, elementary, or secondary school education in the State involved, and (D) are provided in conformity with the individualized education program required under section 1414(a)(5) of this title." § 1401(18) (emphasis added).”

In other words, if a student has been provided educational services at public expense and with public supervision, it meets the State’s educational standards, includes the approximate grade level for the student involved, and the student, if handicapped, has received an IEP, then they have received a “free appropriate public education.” This statement stands as a conjunctive and thus, to know if they haven’t received a free appropriate public education, any one of the necessary conditions must not be met.

The other problem: what is meant by “appropriate education”? What does it mean for a student, handicapped or not, to receive an “appropriate education”? Using the legislative history of the EHA, the Court defined “appropriate education” as simply when “education services [have been] provided.” The justices go on to say that, “the requirement that a State provide specialized educational services to handicapped children generates no additional requirement that the services so provided be sufficient to maximize each child’s potential ‘commensurate with the opportunity provided to other children.’ The US Constitution does provide for “equal protection of the laws.” The Justices, in a decision that does seem to run contrary to Brown v. Board of Education, claim that “[they] do not think that such statements imply a congressional intent to achieve strict equality of opportunity or services (perhaps the distinction is guided by the word strict?). The question of equality is not simply what is meant by equality, but equality relative to whom: upper paleolithic men, ancient Romans or Greeks, Babylonians, men of the Enlightenment, ancient Egyptians, contemporary geniuses, contemporary indigents, whom?

Another EHA requirement is that the education confers some “benefit upon the handicapped child”? But again, this opens up the same issue: benefit not only according to whom but relative to whom?

The Court assenting recognizes this:

“It is clear that the benefits obtainable by children at one end of the spectrum will differ dramatically from those obtainable by children at the other end, with infinite variations in between. One child may have little difficulty competing successfully in an academic setting with nonhandicapped children while another child may encounter great difficulty in acquiring even the most basic of self-maintenance skills. We do not attempt today to establish any one test for determining the adequacy of educational benefits conferred upon all children covered by the Act.”

The EHA’s goal is also to “mainstream” handicapped children with non-handicapped children, and by this aim we may be able to gather what is meant by having “benefitted” from the free appropriate public education, whether one is handicapped or not. The Court assenting states: “Children who graduate from our public school systems,” handicapped or not, “are considered by our society to have been ‘educated’ at least to the grade level they have completed, and access to an "education" for handicapped children is precisely what Congress sought to provide in the Act.” In other words, “if the child is being educated…” they simply need to receive passing marks and advance from grade to grade.

The court ultimately found that Amy had received all she needed to in order to receive a “free appropriate public education” as a handicapped child under the EHA. Justice Blackmun dissented from this opinion, claiming “the question is whether Amy’s program… offered her an opportunity to understand and participate in the classroom that was substantially equal to that given her nonhandicapped classmates.” Again, how is this a standard to determine whether she’s reaching her full potential? As a handicapped person, if her peers were not exceptionally gifted, she could be above the average of the class. From this, could we claim she was receiving an education that was more than substantially equal to that given her peers? What if she felt otherwise? The standard is, once again, arbitrary.

Dissenters also argue that the majority did not properly construe “free appropriate public education” and “receive educational benefits”. But what is meant by these terms if their definitions, as provided by the legislators in the history of the EHA’s passing, are not correct? Some of the dissenters argue that such terms should be left up to the State’s agency, yet this poses the same problem posed by the Tinker case. Even if the State had created its standard for “benefit” and “appropriate,” they must define those terms. They may define them broadly or strictly, it is up to them, but it is up to the States to define them. If they have not defined them clearly, the Courts must still construe them to adjudicate a case involving their use of them. Unless the States define the terms, the black-and-white standard applied by the majority’s decision makes sense. Leaving decisions about Amy’s education in the hands of her local school district still must be deferred to if this standard of State authority is to be respected, for the State of New York and Hendrick Hudson Central School District did not act outside of their authority.

Ultimately, for sake of this discussion, such jurisprudential squabbles are not relevant. What is relevant is the standard established by this case. To briefly, summarize the standards: a student has received a free appropriate public education if a student has been provided educational services at public expense and with public supervision, it meets the State’s educational standards, includes the approximate grade level for the student involved, and the student, if handicapped, has received an IEP; an appropriate education simply means that services have been provided to a student; and lastly, the student is recognized as having benefitted from an education if they simply pass or receive passing grades. Of note is the fact that having received a passing grade or having passed is sufficient to show the student has benefitted from public education. But was required for them to have passed? Simply to have been served? If the student was provided educational services, they received an appropriate education. These standards, if children are equal before the law, apply to all children, handicapped and non-handicapped alike. In other words, as long as the student has, at taxpayer expense, been provided educational services, and a passing grade (regardless of what it takes to receive that passing grade), the student has benefitted from an appropriate education. In theory, the student could show up to class, sit in class, not listen, barely do any work, hand in a piece of paper with a few words on it of little relevance to the material being learned but of some relevance, receive a passing grade on the paper, and thus receive a passing grade in the class, and be considered to have benefited from an appropriate education.  Standards could fall so low that a student may basically turn in a piece of paper with chicken scratch on it, receive a passing grade in the class, and be considered to have received a free appropriate public education.

The issue: what are the State’s standards in question? Each State may have its personal standards, but the Court must also be able to construe those standards. If those standards are rife with “weasel words,” i.e., lacking tangible measurements or definers, then the standards are likely to be construed as arbitrary; i.e., there are, in essence and potential, no legitimate standards for a public education if they are defined by “weasel words” or if no standard can be established (Cpalms). The phrase "public education" is effectively meaningless.

 

Bethel School District No. 403 et al. v. Fraser, a minor, et al. (1986)

 

“`I know a man who is firm — he's firm in his pants, he's firm in his shirt, his character is firm — but most . . . of all, his belief in you, the students of Bethel, is firm.

" `Jeff Kuhlman is a man who takes his point and pounds it in. If necessary, he'll take an issue and nail it to the wall. He doesn't attack things in spurts — he drives hard, pushing and pushing until finally — he succeeds.

" `Jeff is a man who will go to the very end — even the climax, for each and every one of you.

" `So vote for Jeff for A. S. B. vice-president — he'll never come between you and the best our high school can be.'”

 

The aforementioned quote was the speech presented by Fraser at a school assembly for school president nominations. The assembly was not compulsory, the speech did not cause any “atypical… auditory sounds,” and out of the 600 students who chose to attend the assembly, only three of them are recorded as having made gestures “stimulating masturbation” and stimulating “sexual intercourse movement[s] with [their] hips.” School officials called Fraser’s speech obscene, which has a very specific definition, and claimed that the speech was censorable. Based on the Tinker decision, it is hard to see how this speech could have been construed as having “materially and substantially” interfered with school procedures. In fact, after the assembly, classes were “dismissed on schedule.” A Debbie Carmandi, a home economics teacher, said that “during the next day the students expressed so much interest in Fraser’s speech that she devoted approximately ten minutes to a discussion of it.” This was construed by the courts as having materially and substantially interfered with school procedures. Of significant note, Carmandi “invited a class discussion of the speech,” i.e., she took her own class away from their school work; Fraser did not.

Also of note, the speech was considered obscene, and Fraser even admitted that the speech was of a sexual nature, yet the term obscene, as defined by Miller v. California, has a very specific, conjunctive definition. Obscenity is defined as follows: “(a) whether `the average person, applying contemporary community standards' would find that the work, taken as a whole, appeals to the prurient interest ...; (b) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (c) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value." There are, of course, several highly construable terms in this definition, which it will be necessary to explore: why contemporary standards? By contemporary standards, in some instances, the works of William Shakespeare may be considered as having “appeal[ed] to the prurient interests.” By this standard alone, should we censor the works of William Shakespeare? Also, who determines what is patently offensive? The average person? Yet this requires us to ask this question: who is the average person? Average, like the average professional basketball player, chess player, hockey player, nuclear physicist, or organic chemist? Such a term is relative; when we say average, we must ask “average” relative to whom, their fellow Americans? Which fellow Americans? This term is effectively meaningless. And lastly, who determines if the work has “serious… value”? The average person, which average person determines if the work has “serious… value”? Will the average American consider the esoteric work of the organic chemist to have “serious… value,” and if not, should his work be censorable? Obviously, for the obscenity argument to follow, as a conjunctive, all of these standards must be met. As such, despite the fact that Fraser admitted that his speech was sexual in nature, the standard was not met, yet it was called obscene. If it is obscene, yet it does not meet the requisite standard established by Miller v. California, by what standard is it obscene?

To be clear, his speech couldn’t be considered materially or substantially disruptive; if it were, so too were the actions of the Tinkers, yet their behavior wasn’t considered materially and substantially disruptive. Thus, this calls into question, as I previously identified, whether the standard “materially and substantially disruptive” is a “weasel term”; it seems to be arbitrary and lacks substance, thus it can be applied arbitrarily as it was in this case. Also, his speech, by the standard established in Miller v. California, couldn’t be considered “obscene” yet it was. Thus, by ruling in favor of Bethel, the court overreached and ignored the standards it had established in the past, effectively punishing Fraser for his speech arbitrarily.

In making this decision, the Court relied on FCC v. Pacifica Foundation. The FCC makes the following claim about their standard:

“Justice Stevens, writing for the plurality, noted that government had less authority to regulate "a point of view" than to regulate "the way in which it is expressed.

A requirement that indecent language be avoided will have its primary effect on the form, rather than the content, of serious communication. There are few, if any, thoughts that cannot be expressed by the use of less offensive language.

Id. at 743 n. 18, 98 S.Ct. at 3037 n. 18.”

How do you regulate a point of view, a perspective? You cannot. You may regulate actionable language, such as “fighting words” or “immanent threats” because they lead to an immediate action and breach of the peace; they are words and actions, but the mere expression of a desire to do harm or a threat is not, itself, censorable. This creates a rather disturbing logic. Points of view are not censorable. If it's censorable, then it’s not a point of view. Some expressions of a point of view are censorable, and some censorable things are expressions of a point of view. This leads to the following compound formula: some expressions of a point of view are censorable, and censorable things are not points of view. Therefore, some expressions of a point of view are not a point of view. Then what are they? Expressions? Mere expressions? No, they are expressions of a point of view. Actions are not points of view, “fighting words” are expressions, not of a perspective or point of view, but actions and words that cause a breach of the peace or violence. The claim leads to absurdities because the two are mutually exclusive. Either it’s a point of view or not; if it isn’t, it cannot come from a point of view. If it is, then it’s not censorable. Effectively, this prohibits certain perspectives from being expressed arbitrarily. As is clear from this case, the logic established by the FCC should prevent no limitation on expression as all expressions of a point of view are, in fact, points of view; expressions and actions do not count as mere expressions of a point of view because they are also actions, specifically when they are violent or non-peaceful actions. “Offensive” has no legitimate meaning, unless it relates to the term “obscene,” which itself has no clear, tangible meaning.

The claim is also made that “[offensive statements] are no essential part of any expression of ideas.” Yet to argue for the disuse of some particular explicit terms, you must identify and use those explicit terms; it is essential that you use those explicit terms. More to the point, it is clear that such logic is merely a post hoc justification to censor the speech of students.

It could also be argued that Fraser’s speech was valuable, as Justice Stevens did in his dissent:

“This respondent was an outstanding young man with a fine academic record. The fact that he was chosen by the student body to speak at the school's commencement exercises demonstrates that he was respected by his peers. This fact is relevant for two reasons. It confirms the conclusion that the discipline imposed on him — a 3-day suspension and ineligibility to speak at the school's graduation exercises — was sufficiently serious to justify invocation of the School District's grievance procedures. See Goss v. Lopez, 419 U. S. 565, 574-575 (1975). More importantly, it indicates that he was probably in a better position to determine whether an audience composed of 600 of his contemporaries would be offended by the use of a four-letter word — or a sexual metaphor — than is a group of judges who are at least two generations and 3,000 miles away from the scene of the crime.”

Effectively, the Justice is making the argument that Fraser knew his audience, was capable of addressing his audience, and effectively conveying his point. This counts as good rhetoric. Good rhetoric is defined by its ability to make use of ethos, logos, and pathos. A speech incapable of rousing an audience emotionally fails to meet the pathos standard. If a speech fails to meet any of these three standards, the ethos, logos, or pathos standards, then it is not using good rhetoric and is a bad speech. If a rhetorical speech is good, it also understands its audience. By understanding the audience and getting them to react emotionally, Fraser was demonstrating the value of good or effective rhetoric to his peers. His speech was valuable.

Some teachers also claimed Fraser was properly notified that his speech could be punishable. Justice Stevens highlights that this was not clearly the case:

“[He] read his speech to three different teachers before he gave it. Mrs. Irene Hicks told him that she thought the speech "was inappropriate and that he probably should not deliver it." App. 30. Steven DeHart told respondent "that this would indeed cause problems in that it would raise eyebrows." Id., at 61. The third teacher, Shawn Madden, did not testify. None of the three suggested that the speech might violate a school rule.”

If he wasn’t aware of the rule, which it’s not clear if there even was a clear rule he violated, and no teacher properly notified him he would violate a school rule by presenting the speech, he wouldn’t have been deterred from making his speech and, of course, he wasn’t. Therefore, he likely had no reason to think he’d be punished.

Quoting Justice Stevens, who himself was quoting Clark Gable from Gone With the Wind, the most appropriate response to Matthew Fraser’s actions should have been, given the arbitrary and non-standardized nature of the ruling, “Frankly my dear, I don’t give a damn.”

Unfortunately, this did create a significant precedent. Unlike the Tinker decision, which incentivized symbolic expression, or “pure speech” as a means of expression in schools, which genuinely lacks substantive meaning, this case censored actual speech, good rhetoric, on the grounds that it was “substantially and materially” disruptive (which there’s absolutely no evidence to believe it was), that it was obscene (despite the fact that it didn’t meet the Obscenity standard established by Miller v. California), on the basis that local municipalities should have control over their students’ speech. This likely incentivized and created a culture of fragile, easily offended, people who used their “offense” to suppress the ideas of people who threatened their power. Contemporary “cancel culture” likely can find its origins in decisions precisely like this one. Someone will always find ideas that threaten their authority, especially if they’re presented effectively, which includes the use of pathos, offensive to their sensibilities.

 

Hazelwood School District et al. v. Kuhlmeier et al. (1987)

 

The final case I will be reviewing, Hazelwood v. Kuhlmeier, fits neatly behind Bethel v. Fraser. It too relates to matters of free expression, specifically matters of journalistic expression. The main contention by Kuhlmeier et al. is that Robert Eugene Reynolds and Howard Emerson violated Kuhlmeier et al.’s 1st amendment rights by removing two pages with the plaintiffs’ articles from the school newspaper. The argument was that the articles revealed three girls' identities, despite the use of “false names” and that the article opened the school up to tort liability. There was no tort liability to be found.

Again, the censorship standard established by Tinker was not found to be present in this case; there was likely to be no material or substantial disruption. However, censorship of the articles is seemingly predicated upon the fact that the students were in a Journalism II class and, thus their censorship was seen as a kind of lesson. According to the Curriculum Guide for the class at the time of this ruling, the lessons that were to be learned included, the “development of journalistic skills under deadline pressure, ‘the legal, moral, and ethical restrictions imposed upon journalists with the school community,’ and ‘responsibility and acceptance of criticism from articles of opinion.”’ The argument essentially goes that the students were expressing themselves in a manner that was not conducive to the forum they were expressing themselves within. In line with Nicholson v. Board of Education, it was decided that the decision of Reynolds and Emerson could be upheld as it was made with respect to the education of the students.

The majority of the Court held that “educators do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Of course, this opens up a question not answered by the court: what are legitimate pedagogical concerns.  Seemingly, a legitimate pedagogical concern may serve a “valid education[al] purpose.” What is a “valid educational purpose”? that which is deemed to be reasonably related to the education of the student(s). And what is reasonable in this context? It seems “reasonable” means any argument the authority makes on the matter at hand. We may say matters of grammar, citation, bias, or subject content can be subjected to the reasonability lens. E.g., is it reasonable to have this bias given the goals of the class? Or: Isn’t it unreasonable to present an article with such poor grammar? But then, does this not rest on the function of the course? And who can genuinely define what the proper function of an education is? The State may, but they also may not, and there’s no reason to think they’ll do so clearly. “[T]he proper functioning of [a] school [and thus its classes are] not, except at its gross extremes, an objectively ascertainable phenomenon” (Bethel v. Fraser – dissenting). The function or goal is thus not clear. We must therefore ask the following: what was the intended lesson of censoring non-libelous material or materials that wouldn’t subject the school to a torturous lawsuit?

In their dissent, the minority of justices argue that Spectrum, Reynolds and Emerson, violated the pledge it made to its students. Specifically, it states “Spectrum, as a student-press publication, accepts all rights implied by the First Amendment… Only speech that materially and substantially interferes with the requirements of appropriate disciple can be found unacceptable and therefore prohibited.” The question then is, why was it that Reynolds and Emerson found it appropriate to censor the students in question when no material or substantial interference in the requirement to appropriately discipline any students was likely to occur? 

The minority opinion continues:

“The public educator's task is weighty and delicate indeed. It demands particularized and supremely subjective choices among diverse curricula, moral values, and political stances to teach or inculcate in students, and among various methodologies for doing so. Accordingly, we have traditionally reserved the "daily operation of school systems" to the States and their local school board…. We have not, however, hesitated to intervene where their decisions run afoul of the Constitution. See e. g., Edwards v. Aguillard, 482 U. S. 578 (1987) (striking state statute that forbade teaching of evolution in public school unless accompanied by instruction on theory of "creation science"); Board of Education v. Pico, supra (school board may not remove books from library shelves merely because it disapproves of ideas they express); Epperson v. Arkansas, supra (striking state-law prohibition against teaching Darwinian theory of evolution in public school); West Virginia Board of Education v. Barnette, 319 U. S. 624 (1943) (public school may not compel student to salute flag); Meyer v. Nebraska, 262 U. S. 390 (1923) (state law prohibiting the teaching of foreign languages in public or private schools is unconstitutional).”

Thus, the question now to be asked is: was Emerson and Reynolds’ decision constitutional? Or, is the censorship in this case supported by a valid reason? I.e., is interference with the goal or function of the school, specifically their pedagogical function, a “sufficient justification for the suppression of student speech”? Should the school be able to censor a student who responds to a political science teacher’s question with the statement “socialism is good”, undermining the message of the school that “capitalism is better”? Should the school also be able to censor the “gossip who sits in the student commons swapping stories of sexual escapade,” which confounds and runs contrary to the school’s official message that teenage sex is condemnable? It is argued that in these hypotheticals, like the one we find before us in the case of the Spectrum School Newspaper, “school officials could censor” their students “converting … public schools into ‘enclaves of totalitarianism’… that ‘strangle the free mind at its source.’” Simply because the expression of a viewpoint causes discomfort and unpleasantness, or even presents an unsavory subject, is not justification for the suppression of speech, whether in or out of high school. For who determines what’s discomforting, unpleasant, or unsavory? How are these standards of censorship not contingent upon the person interpreting them, entirely subjective, and thus arbitrary? Of course, they are.

The reliance on Tinker (with respect to spoken or written forms of expression), itself an unclear standard, was ended by this decision. Through this decision, the court decided that the prerogative of the school’s administration was a relevant consideration, despite the fact that it wasn’t a relevant consideration in the Tinker case; if a viewpoint was objectionable and broached a sensitive topic, it could be censored, despite the fact that there’s no sound definition for what is objectionable or a sensitive matter; and it enabled the school to punish individuals who made comments through a school-sponsored program, a task achievable without the need for censorship.

The minority of the Court continues:

“Censorship so motivated might well serve (although, as I demonstrate infra, at 285-289, cannot legitimately serve) some other school purpose. But it in no way furthers the curricular purposes of a student newspaper, unless one believes that the purpose of the school newspaper is to teach students that the press ought never report bad news, express unpopular views, or print a thought that might upset its sponsors.”

What he demonstrates is as follows:

If you are going to teach a lesson, you need to set the standard before you punish anyone for not meeting the standard. Most teachers understand this: you need to create a goal before that goal is considered achievable; what are students aiming for if they do not have a goal? If you do not set the standard before you punish someone for failing to meet that standard, then the lesson you’re trying to teach cannot be taught. Student frustration will be the only thing that follows, for they will not understand why they were punished. The principal never consulted the students before he deleted their articles from the Spectrum; they only learned of their censorship after the fact.

The goal then was to act as “thought police,” according to the minority of the Court, and to teach the students that they could be censored. The goal was to show them they needed to be “closed-circuit recipients of only that which the State chooses to communicate” to them, casting a “pall of orthodoxy over the classroom”. Interestingly, the principal doesn’t seem to have acted out of a matter of principle either:

“[T]he District Court specifically found that the principal ‘did not, as a matter of principle, oppose discussion of said topi[c] in Spectrum.’ 607 F. Supp., at 1467. That much is also clear from the same principal's approval of the ‘squeal law’ article on the same page, dealing forthrightly with ‘teenage sexuality,’ ‘the use of contraceptives by teenagers,’ and ‘teenage pregnancy,’ App. 4-5. If topic sensitivity were the true basis of the principal's decision, the two articles should have been equally objectionable. It is much more likely that the objectionable article was objectionable because of the viewpoint it expressed: It might have been read (as the majority apparently does) to advocate ‘irresponsible sex.’ See ante, at 272.”

In other words, the lesson doesn’t seem to have been applied to all students equally; it is clear the point wasn’t to teach a lesson.

The overall cultural effect of this decision is this: those in positions of authority may censor your journalistic endeavors if they find your work offends their sensibilities. In some regard, they are right, yet such a decision has derivative effects. Previously, I identified how the public can use positions of authority to control the opinions they have access to, effectively opening the door for an authority to control the public’s thoughts and their access to information. If the public, or a minority (especially given the tyranny of the minority), uses an institution to suppress information they find unsavory, unpleasant, or discomforting, they perpetuate a culture of extremely fragile individuals, and more importantly, may limit a population’s access to information necessary for their stability and security merely because it could be construed as unsavory, unpleasant, or discomforting to the public or authority. While I think censorship is indeed a right afforded to any institution, from the family home to the King’s domain, the standard, if Justice is to be preserved, should not be arbitrary, or subjective, and should consist of a standard applicable across all essential instances of any particular matter of the given case of censorship. In other words, this case affirmed, perpetuated, and defined public schools as institutions able and willing to censor students based on an arbitrary and subjective standard.

 

Conclusions and Discussion

 

“And they had a king over them, which is the angel of the bottomless pit, whose name in the Hebrew tongue is Abaddon, but in the Greek tongue hath his name Apollyon.” – Revelation 9:11

The potential consequences of the several cases we have explored are as follows:

• WV v. Barnette seems to be the symptom of an emerging tyranny defined by the minority. We know it is tyrannical because it subverts the will of the majority, reflected through the laws written by the State of Virginia’s representatives, based on the scruples of the minority. This decision also was an assault on any school’s ability to establish rituals or processes that help students learn what it is to be a Citizen of the United States and which could help to promote national unity. Effectively, this decision undermined the public school’s ability to promote national unity and thus potentially undermined national stability and security.
• Engle et al. v. Vitale et al. attacked a well-established tradition in this country, which was the connection between the US government and God or the Creator. With this decision and the undermining of a tradition held by many Americans of the past, the ties Americans had to their past were cut out from under them. This forever altered how the past and thus the present were to be understood by those educated in public schools.
• Tinker et al. established the decision that students had the right, to use “pure speech,” to protest in schools. This granted courts and administrative bodies the right to capriciously determine what kind of public protest in a school was appropriate or not, according to their preferences and standards. Through our public schools, this created a culture of symbolic expressivity. This kind of symbolic expression lacks – the “pure speech” afforded to students lacks – substantive meaning; they replaced substantive, semantically significant, forms of expression with meaningless gestures.
• Board of Education… v. Rowley et al. altered the standards of education within the US. This decision clearly established that, even if a State defines its educational standards, those standards, the goals of the school, its function, and the function of each class are likely to be effectively arbitrary, otherwise, no legitimate standard may be established. The students benefit if they pass, and the standard by which a Court can adjudicate whether or not a student has benefited from an appropriate education is merely that they were served by the public school. In other words, it’s hard to even determine whether any student legitimately received an education, only whether they were served and graduated, if they graduated. Public education effectively became or was identified as meaningless.
• Bethel v. Fraser effectively established the legal structure for what we would contemporaneously call “Cancel Culture.” It established the ability of local educational municipalities to censor students based on whether they were “offended,” which is effectively an arbitrary standard, making the effect of their decision inherently unjust. It also likely incentivized a culture constituted by fragile minds. Promoting a culture of fragile minds enabled even greater censorship. And once these fragile minds acquired positions of authority, they could extend the scope of censorship even further. The public schools became a breeding ground for these censorious authoritarians. 
• Lastly, Hazelwood School District et al. v. Kuhlmeier et al., established a tradition within public schools of further capricious censorship; this time, affecting the journalistic endeavors of public school students. This likely made students more comfortable being capriciously censored, having their voices arbitrarily silenced, and thus created a culture where students were used to and accepted having their ideas suppressed. While censorship is a natural phenomenon found within the home and in the King’s domain, such censorship, if it be just, must have an objective, easily understandable, and consistent standard. In other words, this created a culture of capricious censorship within the public schools and normalized the feeling of being censored for students. To boot, writing being one of the main ways we think for ourselves and express our inner thoughts beyond speech, this also enabled teachers to alter the thinking patterns of young minds -- stifling the kind of critical thinking skills that are necessary to live in a complex society.

 

The more I reviewed these cases, the more I felt as if there was no reason to save the public education system, and frankly, I believe the kind of culture created through our public schools, whose actions are defined by these judicial decisions, seems to be a genuine inversion of the American tradition. James Lindsay can be quoted as saying “the public schools must be rescued, not destroyed.” Yet I would have this to ask him: what precisely are you rescuing?

First and foremost, as it currently stands, “public education” is effectively a meaningless phrase. There is no way to determine whether you’ve benefited from a public education besides knowing whether you graduated and there’s no clear definition of what an appropriate education is from a public school besides whether you were served (whatever that means specifically) by the public education system. Oh, but public school students become scientists, engineers, physicists, etc. So what? Is that the result of a public school education? How would we even know? There’s no meaningful definition of what a public education even is. They could’ve just become a scientist, engineer, or bio-chemist, for example, because of their intellectual and autodidactic excellence – most of what they learned need not even have been provided to them through a public school anymore. So, what exactly, vis-a-vis public education, is worth saving?

Secondly, public schools have had their moral foundation (not in the Haidt sense) eroded out from under them by decisions like WV BOE v. Barnette and Engle et al. v. Vitale et al. In aiming for neutrality, the Court enabled schools to become a void for progressives to fill with their morality, effectively getting public schools to act as their enculturation centers. While progressives obviously have a de facto religion, the term religion doesn’t seem to have any clear definition according to the courts (United States v. Seeger, 1965 & United States v. Macintosh, 1931); they still do not proclaim to worship any sort of supreme deity or God, and have no relation between them and that God – therefore, how exactly do you plan on claiming the value system they’ve interjected into the void, created by the claim to neutrality (established in Engel v. Vitale), is a religion; how do you plan on ousting their religion? You obviously cannot unless the term “religion” is reconstrued. And what kind of value system do you plan on filling this void with if you are able to oust the progs? Atheism, Agnosticism, some kind of new fake neutrality that we’ll just ruminate our children in for another 60 years until the structure spawns the same damn beast?

Thirdly, you are dealing with a population, bred in these structures and institutions, who have become accustomed to censorship; they see freedom of expression as a dead meme and mock it, and there’s a historical reason for them to do so – it was killed by the public education system and the Courts of the very country that claimed to value it on principle. They now live in the culture created by those kinds of decisions and have been raised in the centers that were to prepare them for living in that culture. They value meaningless, symbolic expression because it is likely, if not actually, the only appropriate way to express their points of view in a public school (and now public setting and culture largely defined by the public education system), especially if they were aggrieved. If they did express their points of view, such expression could be construed as offensive, vulgar, unsavory, unpleasant, or discomforting, which have found their contemporary analogs in racist, sexist, bigoted, homophobic, transphobic, etc., and thus, under such pressures, they likely never learned the value of freedom of expression or the ability to accurately express their grievances, or hear opinions that run contrary to their own; they are entitled because the culture they inhabit and that was built for them is/was entitled. It is also very possible, given this kind of conformity culture created by the Court’s decisions (a manifestation of the tyranny of the minority), that such students never learned how to think for themselves, never learned critical thinking because they were forbidden to do so – it might have offended someone if they thought for and expressed themselves.

So, who exactly is someone like Lindsay pitching his ideas to? Parents and descendants of a culture that never even genuinely supported a culture of free expression or critical thought? Who’s there to genuinely receive his ideas and to think critically about them? When will and are his ideas even capable of being effected into the kind of institution and culture we’ve just unraveled? There's no knowing and I doubt they can because the legal structure runs contrary to his goals. Otherwise, he would be using his opponent's force against it; but in this case, doing so only perpetuates the power of his opponent; using their language and their tactics is precisely what they want.

It is often crudely stated that we must return to the 90s – “if only we could return to the 90s, we’d be free of Woke Culture, we’d be able to change things for the better,” the naïve centrist says. I disagree. By the 90s, the culture we’d have liked to live in, a high-trust society, a society that valued liberty, with citizens who could think for and express themselves, was long-gone or on its way out – it killed itself. The spirit who was born of this culture is a self-consuming and annihilating beast. Why save it?

 

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