The Constitutional Rights of Politically Incorrect Groups: Christian Legal Society V. Walker As An Illustration (original) (raw)
Related papers
Since 1969, when the Supreme Court decided Tinker v. Des Moines Independent School District, federal and state courts have been called upon to adjudicate a variety of student free speech claims, including those arising from student protests, school newspaper censorship, library book and textbook selection and removal, selection and cancellation of school plays, student dress codes, and even senior prom attendance by same-sex couples. Part I of this article will discuss the modes of analysis that courts have used in adjudicating these claims and will argue that those analyses are poorly suited to the special problems inherent in student speech controversies. Because the Court has failed to expressly define the school interest that is served by censorship of student speech, the outcome of student speech disputes has often rested on the educational ideology of the judges charged with adjudicating those disputes. Part II will present an analytical framework for the adjudication of free speech claims brought by high school students. That framework will attempt to define the school’s interest in a manner that both meets the demands of First Amendment adjudication and eliminates the role educational ideology plays in that adjudication. This Article concludes by applying the proposed framework to a variety of hypothetical school speech scenarios, including the conundrum of whether a school can be constrained from removing books from the school library while retaining discretion to select and reject textbooks for use in classrooms.
1970
CHURCH-STATE RELATIONS IN EDUCATION I. INTRODUCTION The First Amendment was added to the United States Constitution in 1791 as part of the Bill of Rights. Yet, the Supreme Court did not address a case involving religion and public education on the merits of a First Amendment claim until 1947 in Everson v. Board of Education (Everson). 1 In the years since Everson, the Court has resolved more cases dealing with the religion clauses of the First Amendment than any other subject in Education Law. Further, the Justices refused to review or summarily affirmed many lower court cases and resolved disputes in other realms of church-state relations with implications for public 2 and non-public 3 schools. According to the sixteen words of the religion clauses of the First Amendment, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Insofar as the First Amendment explicitly prohibits only Congress from making laws establishing religion, in 1940, the Supreme Court applied the First Amendment to the states through the Fourteenth Amendment in Cantwell v. Connecticut (Cantwell). 4 The Cantwell Court invalidated the convictions of Jehovah's Witnesses for violating a statute against the solicitation of funds for religious, charitable, or philanthropic purposes without prior approval of public officials. Consequently, individuals have the same rights in suits against the federal and state governments over the establishment of religion. In reviewing First Amendment religion cases, the Supreme Court created confusion over the appropriate judicial standard. 5 Initially, the 1
Political Correctness, the Law, and the Legal Academy
1992
The spring squall of 1991 about political correctness on campus has passed, leaving behind a muddy residue in the nation's political rhetoric. I Although the squall initially may have seemed to develop from a detached interest in campus developments, 2 it rapidly became clear that the campaign against "political correctness" was this year's version of conservative concern about liberalism in the universities. 3 The timely publication of Dinesh D'Souza's Illiberal Education, and D'Souza's understandable efforts to promote the book's sales by publishing op-ed articles and appearing on news programs, 4 offered a continuing newshook for stories about political correctness. Conservatives took up the attack on political correctness, until it worked its way into President Bush's commencement speech at the University of Michigan. 5 Predictably, the conservative appropriation of the attack on political correctness has obscured more than it has clarified. I intend this essay mostly to lay out precisely what ought to be at issue. Given the conservative domination of the discourse, much of what follows attempts to show how overblown or distorted the conservative characterization of the issue is. I draw upon my experience as an academic in a law school, and therefore focus on some incidents in the literature on political cor-* I would like to thank Max Holland for his comments on a very early version of this essay, and Elizabeth Alexander, Mike Seidman, and Robin West for their comments on later versions. 1. I asked the Georgetown University Law Library to monitor articles in NEXIS on political correctness from early 1991 to the present. In spring 1991 there were a number of substantial discussions; since then the search picks up an occasional editorial, op-ed piece, or letter (along with speeches by the leadership of the People's Republic of China and their allies). 2. For a relatively early article representative of this approach, see Adler et al, Taking Offense, NEWSWEEK, Dec. 24, 1990, at 48. 3. The prior year's version was Allan Bloom's The Closing of the American Mind, which, as I argue below, makes what is in many ways precisely the opposite challenge to what it presents as liberal orthodoxy. 4. I want to be clear that, although I disagree with D'Souza, I find nothing objectionable in his efforts at self-promotion. I know that it is difficult to make a living as a writer, and anyone trying to do so is surely entitled to try to maximize sales.
Justice and cultural conflict: Racism, sexism, and instructional materials
Interchange, 1978
The heated and often bitter debates surrounding the selection and use of various curricular materials have been a source of alarm to those concerned with the future well-being of public education in America. The contentiousness and violence which accompanied the adoption of a series of Language Arts and English textbooks in Kanawha County, West Virginia, in the fall of 1974, is perhaps the most widely publicized example of a phenomenon which has affected virtually every state in the nation-a fact easily verified by examination of any recent issue of the Newsletter on Intellectual Freedom, which regularly lists books and curricular materials "now troublesome." The controversy over the elementary social studies program "Man: A Course of Study" (widely known as "Macos") even reached the floor of Congress, where in April 1975 it was attacked by Congressman John B. Conlan (R-California) as a dangerous intrusion on children's values which threatens to "mold children's social attitudes and beliefs along lines that set them apart and alienate them from the beliefs and moral values of their parents and local communities. ''1 Most of the writers discussing the increasingly numerous efforts to limit or proscribe the use of various controversial curricular materials have tended to conceive of these efforts almost exclusively in terms of attempts at censorship: "the withholding of a communication from one person by another" (Ahrens, 1965, p.3). While in most cases there is more than ample justification for such a designation, it is also a fact that the invocation of such hallowed concepts as intellectual or academic freedom 2 and First Amendment rights has the additional effect of deflecting attention from the other exceedingly complex, often emotional issues involved in selection-censorship controversies. ~ These include one's conception of the very purposes of schooling; a delineation and specification of the responsibilities and authority to be delegated to the various faculty, administrative, and lay groups in the selection and review procedures; and the decision as to whether classroom materials are to be reflective of the values and attitudes of the local community or of the more pluralistic nation at large. Also needed is a determination of the role, if any, to be given to the federal government in setting up curricular guidelines and standards: 4 Finally there is the question, rarely addressed in the literature, of whether in selection-censorship controversies there is a difference and a consequent need to distinguish between trade books-works by individual authors, especially fiction-and textbooks. Regardless of the merits of the distinction, there does exist an axiom regarding the connection between attacks on curricular materials and those housed in
Education Law Research: Two Sides of a Coin
Complex issues in education today require research approaches that would contribute to new understandings of how education law can contribute to the realisation of educational rights and aspirations.1 Examples of such problems include issues of gender inequality, ethnic and religious discrimination, managing learner behaviour and making education more inclusive, to mention a few. This highlights a need to identify the kind of approaches that would take understanding of the field of education law forward. The aim of this article is to explore the essence of education law research. In doing so it attempts to grapple with and move beyond the apparent tension between legal and educational approaches towards collaborations and approaches that will address the current issues in education more holistically. In comparing South African with international approaches this article will contribute towards discourses about education law epistemologies and methodologies.
Southern African Public Law
Education 43 at 43. dignity, equality and freedom. Attention is drawn to the fact that exercising individual rights and freedoms does not extend to individuals who use their rights and freedoms in an unaccountable manner leading to the violation of others' rights. The Constitutional Court subsequently cautioned that if individual rights are used in such a way, the beneficiaries thereof will lose constitutional protection. 7 When dealing with conflicting needs, and thus conflicting rights, the question that arises is how can they be dealt with in a way that creates a culture of respect for diversity and other people's rights and so guides the role-players' actions? Secondly, how can such conflict be resolved? In this regard, awareness is needed that some conflicts centre on the range and scope of rights and that assigning weight and significance to the ends and effects of protecting and promoting individual rights without diminishing other people's individual rights, is necessary. Childress et al propose that, under such circumstances, it is best to balance the 8 2013 1 SA 632 (SCA) paras 37 & 54 paras 640G-641C & 645H-646A; see (n 62) below for the 54 Constitutional Court ruling on the Rivonia-case. 2009 5 SA 183 (CK) para 17 para 191E.
Schools & the Courts. Volume II: Methodology, Student Rights, and Fiscal Equality
1979
Eight papers examining different aspects of the effects of court decisions on education are contained in this book, the second of two volumes. The papers were solicited from scholars in the fields of law, political science, sociology, and education in conjunction with a 1979 conference held in Madison, Wisconsin. The conference was called to analyze the impact of desegregation, finance, and student rights hrd discipline. Chapter 1 examines ways in which sociological scholars have conceived of legal impact. Chapter 2 explores the application of cultural jurisprudence as a mode of inquiry into high court decisions and includes a discussion of how to do a values study. In Chapter 3, Supreme Court cases dealing with student rights and discipline in the schools are examined in detail. The final chapter presents a model of implementation for educational reform litigation. (Author/LD)