Freedom of speech. Schools are at the center of a conflict over parents' rights to restrict what their children hear
IF freedom of speech were represented by a yardstick, the most liberal liberal and the most conservative conservative in the United States would agree on the first 32 inches or so. But watch out for the critical last four.
Nearly 200 years after the First Amendment to the United States Constitution was ratified in 1791, the implications of the phrase ``Congress shall make no law ... abridging the freedom of speech'' still raises quite a ruckus.
One such implication is the right to be free from speech - the freedom to avoid offensive speech. This is where much of the controversy occurs. It's already the subject of a current US Supreme Court case, and it's likely to be at the center of another high court case soon.
Speech is not an absolute freedom, the Supreme Court has determined over the years. Freedom to speak must be balanced against the needs of the community to maintain order. One is not free to yell ``fire'' in a crowded theater if there is no fire, said Justice Oliver Wendell Holmes in 1919. In 1973, the court ruled that obscenity is not protected under the First Amendment - though there's little agreement on what is ``obscene.''
A number of recent court cases - a Tennessee suit in particular - place schoolchildren at the center of the debate today. And while some groups say that nothing less than the pluralistic nature of the public schools is at stake, equally vocal groups on the other side say their fundamental right to freedom of religion is imperiled.
How protected should minors be from speech that their parents find objectionable? From obscene material? From ideas that run counter to the parents' religious beliefs?
The ``obscene materials'' question is addressed in a Virginia case now before the Supreme Court. The lawsuit challenges a 1985 state law that makes it a felony even to display certain books and magazines where minors may read them.
The ``religious beliefs'' issue is also headed for the high court, though that's no guarantee the justices will hear it. Mozert v. Hawkins County Public Schools has been decided twice, dismissed once, and reversed once already. The Tennessee suit began in the fall of 1983, when a group of fundamentalist Christian families objected to a textbook series being used to teach reading. For a while, some schools accommodated the parents by providing alternative texts.
That November, though, the school board ruled that the texts the families found so objectionable would be used in all the schools, without exception. Children who refused to read the texts were suspended.
A month later, seven families brought suit against the school system in what came to be known as ``Scopes II,'' referring to the celebrated 1925 ``monkey trial'' in which high school science teacher John Scopes was tried for teaching the theory of evolution in Tennessee.
The designation is misleading. Much misinformation has surrounded the nature of the parents' complaint and their immediate objective in the suit. The group is not out to ban ``The Wizard of Oz,'' ``The Diary of Anne Frank,'' ``Macbeth,'' Goldilocks, Jack and Jill, and a story that portrays a boy cooking, as some have charged.
The aim of the suit is not ``to remove a single book,'' says Jordan Lorence, an assistant attorney for the plaintiffs. He works for Concerned Women for America, a conservative Christian group backing the parents. The object is to allow students to ``opt out'' of being subjected to material that offends their parents' religious beliefs. A judge's ruling, reversed by a higher court, would have allowed parents to teach their children reading at home. The children would have had to pass a standard reading test.
The Rev. John H. Buchanan, chairman of People for the American Way, supports the school system in the suit. ``Exposure of my child to concepts that are at variance with my faith,'' he says, ``does not ... constitute a violation of First Amendment rights.'' The children are not compelled to believe or made to act in accordance with something they do not believe. (This rationale was used in a similar school case in Louisiana, in which the Supreme Court ruled against students' being taught ``creation science'' alongside evolution theory.)
In fact, according to Mr. Buchanan, who is a Baptist minister, the parents' objective in the case - and the precedent it would set - is ``changing the public school curriculum to meet their sectarian views.''
His charge is echoed by Ann P. Kahn, the immediate past president of the National Congress of Parents and Teachers (the PTA). Her organization, along with many other education groups, filed a brief in support of the Hawkins County school system. What the plaintiffs propose, says Mrs. Kahn, is alternatives ``carried to an absurdity.'' They would, she adds, turn the schools into ``a system that is not a public school system.''
BUCHANAN says that allowing children to ``opt out'' of some classes would put the school system in a turmoil. But a lawyer for the conservative Rutherford Institute says he doubts that more than six or seven children would choose to stay out of classes.
Jerry Nims, the new president of Moral Majority, the conservative group founded by the Rev. Jerry Falwell, and the Liberty Foundation, its lobbying arm, says: ``Some of the media position the issue between independent thinkers and religious fanatics. But the real issue is: Whose value system should prevail, parents' or teachers'?''
Harvard University law professor Laurence Tribe, one of the nation's leading authorities on the First Amendment, frames the issues this way: The parents have a ``serious free-exercise [of religion] claim,'' no matter how innocuous the material they object to may seem to others. The charge that the suit is an ``attempt by parents to reshape the entire curriculum ... should not be taken seriously.''
The parents' claim should be weighed against the burden placed on the public school system by an accommodation of their concerns, says Professor Tribe. He comes down on neither side. But his analysis is at odds with the way the district court ruled in the case.
If Mr. Tribe is correct, and the question is indeed one of accommodation, the next question is: How much?
Both liberals and conservatives agree that the vast majority of parents' concerns are quietly resolved in a principled way by public school boards. Those are the cases that never attract media attention.
Kenneth Strike, who teaches education philosophy at Cornell University, goes a step further. Professor Strike testified for the plaintiffs in a recent Alabama case in which a group of evangelical parents sued the public schools for teaching ``secular humanism.'' Both the Alabama and Tennessee cases ``could easily have been settled at the local level - and should have been,'' says Mr. Strike.
Furthermore, he says, they could have been resolved ``without any violence to any constitutional or educational principles.''
``When you've landed in a courtroom,'' says Scott D. Thomson, executive director of the National Association of Secondary School Principals (NASSP), ``you've either got uncompromising parents or unwilling school districts.''
The issue of parental rights has been confused, perhaps, by the mounting number of challenges to schoolbooks over the past decade, and the character of many of those objections.
HARRIET TYSON-BERNSTEIN, now a consultant to the Council for Basic Education, weathered her share of ``book wars'' as a Maryland school board member in the '70s. She says that some of the parents who raised objections were those ``who go crazy when they see a blasphemous word'' in a text. For them, ``I don't think it is deeper than that.'' Sometimes, parents simply want a particular book out. Such attempts often fail because, by removing every student's access to a book, the rights of parents who want their children to be exposed to the book are violated.
In 1982 the Supreme Court reviewed a book-banning case in Island Trees, N.Y., and ruled that the books in question were being removed inappropriately. The National Association of School Boards subsequently urged its members to put formal complaint procedures in place to deal with parental concerns. Many systems have done so.
A formal procedure protects against the most insidious form of censorship: principals or school librarians feeling so pressured by parents that books are quietly removed, with few people the wiser. A set procedure keeps teachers and principals off the firing line - and depersonalizes the process to everyone's benefit.
``You can have a demagogic parent as well as a demagogic school system,'' points out Mrs. Kahn of the national PTA.
Parents must be heard. ``We talk about local control [of schools],'' says NASSP's Dr. Thomson, ``and the flip side of that is community standards.'' Then again, he says, it is ``logically impossible for every parent or group to have their own agenda'' for the schools.
The school board is the arbiter, and if parents don't like the school board's decisions, Thomson says, they can vote the board out.
But, says Mr. Lorence of Concerned Women for America, ``there will always be minorities of some type, who don't have the numbers to influence [the composition of a school board], but who still have a constitutional right not to have the views of the majority rammed down their throats.''
The Tennessee parent group intends to present its case to the Supreme Court for review. The group will wait until early January to file - the last possible moment for it to be reviewed this term. By then, it hopes, the Senate will have confirmed a ninth Supreme Court justice. A 4-4 tie vote would let the lower-court ruling stand.
How might the Supreme Court rule?
So far, there's little question that Mozert v. Hawkins County Public Schools will be appealed to the United States Supreme Court. Will the court choose to hear it? Those familiar with the case think so.
The seven fundamentalist Christian families in the Tennessee lawsuit say their constitutional rights are infringed by the textbooks being used to teach reading, books they say offend their religious beliefs. The state responds that to accommodate the families would be too burdensome.
William Allen, a constitutional scholar at Harvey Mudd College, finds justification for the high court's ruling either way. In a 1982 decision on the banning of books from a New York public school library, Justice William Brennan's majority opinion suggested that required reading is at the discretion of the school board, Dr. Allen says.
On the other hand, he continues, the high court has ruled strongly in favor of individual freedom - including religious freedom - over the power of the state.
The bottom line, for Allen, is the fact that the high court has not tended to agree with the fundamentalists' arguments. The court is ``reluctant to step into such battles and when it does so, it usually is not in favor of fundamentalists,'' he says.
Jordan Lorence, assistant attorney for the plaintiffs, says a Supreme Court decision might present an ``odd package.'' He sees conservative jurists tending to back the authority of the school system, while more liberal judges will stand up for individual rights.
Today, that scenario would leave a 4-4 tie. That's why the plaintiffs will wait until early January - the last possible moment - to apply for a Supreme Court hearing this term. That, they hope, will give the US Senate time to confirm nominee Anthony Kennedy.
``We just don't know'' how he will vote, Mr. Lorence says. It helps that Judge Kennedy follows Supreme Court precedents closely, but it may hurt that his wife is a public schoolteacher, Lorence says.
Larry Crane, a staff attorney with the Rutherford Institute in Nashville, has consulted with the plaintiffs' counsel. Mr. Crane is not sure this is the case to take to the Supreme Court because the plaintiffs objected to such a wide range of materials. A ``narrower objection,'' he says, would give them a better chance. The rural Southern setting doesn't help, either, he says. His group will look for a similar case to try in the North or Northwest.
Key court cases in 1987
Alabama: Evangelical Christians charged that 44 books in the public schools promoted ``the religion of secular humanism.'' Federal District Judge W. Brevard Hand agreed, and supported the books' removal. Judge Hand was overruled in August, when a circuit court found that the books represented ``an entirely appropriate secular effort'' at education. A high court appeal may follow.
Tennessee: Federal district judge Thomas G. Hull ruled that fundamentalist Christian parents could take their children out of reading classes and teach them at home. The parents had objected, on religious grounds, to the reading textbooks being used in the school. A three-judge panel unanimously overruled Judge Hall's decision last summer, and a hearing by the entire circuit court was denied. This is likely headed for the Supreme Court.
Louisiana: In June, the nation's highest court struck down a state law that required the teaching of ``creation science'' alongside evolution in public schools. The majority ruled that the effect of a 1981 state law was ``clearly'' an attempt to advance a religious viewpoint.