Beyond the Schoolhouse Gate: Free Speech and the Inculcation of Values

Three. Free Speech and Public Education

Three Free Speech and Public Education Schools should strengthen our democracy by inculcating the values identified by the majority \Nhile also strengthening our 48 Chapter Three commitment to freedom by fostering pluralism and eschevving orthodoxy in religion or politics. William Buss. "School Nevvspapers. Public Forum. and the First Amendment"" How congruent are the aims of public education and free-speech principles? What problems arise in reconciling the inculcative function (the transmission ofvalues) of public schoolingwith free speech? Commentators often find this relationship adversarial, so that advancing one requires hindering the other. David Diamond, for example , exalts the inculcative function and argues that, since the principal business of public education is indoctrination, our public schools embody the denial of First Amendment rights.! Conversely, another commentator concludes that the severe conflict between free speech and inculcation requires school officials to abandon the latter.2 Even those who try to reconcile free speech with the inculcative function view them as being inherently adversarial.3 However, while tension does exist between the aims of the First Amendment and the inculcation of values by public school officials, the relationship is more subtle and less oppositional than is typically noted. My examination of this relationship entails four related claims. First, the liberal principles that underpin adult free speech are tenuous and are not presumptively valid for children. Moreover, the aims of free speech and public education are both congruent and conflictive. Third, the inculcative function should play an instrumental role in establishing student free speech. And finally, the inculcative function may serve free-speech aims. Together, these claims lay the groundwork for a more subtle, sophisticated approach to conferring First Amendment rights upon public school students. Free Speech and Public Education 49 Marketplace of Ideas In general, at least five arguments defend free speech as a fundamental component of a liberal, democratic society.4 Throughout this century, the marketplace-of-ideas argument has dominated both legal scholarship and constitutional doctrine pertaining to First Amendment free speech.5 Some marketplace proponents argue that truth and knowledge thrive only where competing ideas collide vigorously .6 Marketplace advocates are typically skeptical about the human capacity for distinguishing truth from falsity. For them, human fallibility implies that intellectual pluralism ought to rule the day. Justice Oliver Wendell Holmes eloquently expressed this view in a classic dissent: But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas - that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory in our Constitution.7 While he is more skeptical of human rationality than is John Stuart Mill, Holmes nonetheless presumes individuals are capable of rational conduct, at least to the extent that they recognize the wisdom of the marketplace of ideas. Marketplace proponents frequently presume that conflict, competition , and diversity are essential to liberty and are signs of societal health. The metaphor itself has special significance; just as a freemarket economy is hailed by supporters for promoting social and economic goods through the pursuit ofeconomic self-interest, so too is this intellectual marketplace expected to advance certain social goods. This free-speech argument, then, remains deeply rooted in 60 Chapter Three liberal theory, and its spirit can be traced to Mill's noble defense of liberal tolerance: [The] peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. Ifthe opinion is right, they are deprived of the opportunity of exchanging error for truth; if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.8 Democracy Other prominent First Amendment theorists view free speech as an essential element of democratic governance, providing citizens with the necessary information to exercise their civic duties. By prohibiting the state from restricting individual expression, free speech reinforces the notion that political authority ultimately rests with the people. Drawing heavily from the New England town meeting model of democracy...