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Friday, September 04, 2009

Obama's School Speech and the First Amendment

I'm sorry more folks in the legal blogosphere haven't written more about some of the more perfervid reactions to President Obama's upcoming speech to school children, although Jim Lindgren has an oddly composed, if somewhat be-suspicious-but-verify in tone, post on it today.  Here's a New York Times article on the subject, with lots of examples of people worrying that Obama will indoctrinate the nation's youth into his secret plan for socialism, parents demanding opt-out rights, and so on.  I should add up front that to the extent that it is true that anyone thought the idea of these children writing letters to the President was a good idea, I'm rather glad it was scotched, although it could of course have been done in a perfectly inoffensive and educationally appropriate way.

I could understand this kind of sentiment coming from vigorous anti-public school types, who naturally might believe that any and all public education is a form of indoctrination, and thus that this speech is no different than but equally offensive as what happens every day in the public schools.  That would be an intellectually consistent position, right or wrong.  I do not get the sense it represents the views of many of these parents and public officials, who are all in favor of indoctrination on matters that could rightly be seen as controversial -- say,the question of masturbation and oral sex should be acknowledged in school to be acceptable forms of contraceptive sexual practice, or whether one should actually love one's country -- but for some reason view the President addressing school children as a unique danger.  

Two things strike me about this "controversy" -- if it is that, and not simply a case of a few nuts with good access to media outlets.  One is the parallel to the Pledge of Allegiance controversy following the Ninth Circuit's decision in Newdow.  Of course, part of the question there was religious, and had to do with whether the words "Under God" could be said by anyone at all.  And perhaps all the people complaining in this case believe that school children should have an opt-out right with respect to the Pledge just as they are arguing for one here.  But it seems to me that this is far-fetched; surely many of the people who are demanding that their children be allowed to skip the President's speech believe that children ought to be made to stay in class for the Pledge, and indeed to say it.  Surely that is true of some of the Senators, too, who piled on to the Ninth Circuit's ruling so quickly.  It is interesting that it turns out to be both controversial to forbid indoctrination into the Pledge of Allegiance and to require attendance (and not indoctrination) when the President of the United States gives a speech to school children.  Second, I wonder whether the advocates of opt-out rights in this case believe that this is a special case, or whether they think opt-out rights should be available in every situation.  On any given day, schools teach far more controversial values to their children -- say, that one ought to love one's country, or for that matter one's neighbors.  When should parents be able to pull their children out of school for those reasons?    

Posted by Paul Horwitz on September 4, 2009 at 11:01 AM in Paul Horwitz | Permalink


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"In cases of whether something particular ought to be said about evolution or design, the 'liberal' position generally is, not that we ought to be able to opt out, but that the speech ought not to occur in the first place."

The "liberal" position, in a nutshell, is that evolution is science and creationism (which includes "intelligent design") is religion and as such the latter's promotion in government schools runs afoul of the Establishment Clause.

In fact the Constitution is more explicit with regard to teaching creationism (read: religion) than the so-called "socialist indoctrination" conservative Republicans are fretting about. There's no Establishment of Political Ideology Clause.

Posted by: Ghost of Gould | Sep 7, 2009 6:56:36 PM

This is going to sound partisan ...

Well, as you anticipated, it does and, with respect, I think that it is. Of course, that doesn't mean it's wrong. I generally agree that conservatives who would object to a nonpartisan speech by the President should take a deep breath. I am generally unsympathetic to the notion that one has a right to avoid (or keep from one's children) all unwelcome messages.

But ... as I indicated in my post, Democrats did complain when George H.W. Bush did something similar. Nor can I agree that one side is somehow more accepting of the outcome of political skirmishes over what will and will not be said in school. In cases of whether the pledge ought to be said with the words "under God" or whether something particular ought to be said about evolution or design, the "liberal" position generally is, not that we ought to be able to opt out, but that the speech ought not to occur in the first place.

Granted this is not the case with speech urging love of one's country, but I am not aware that there is significant opposition to the sentiment among mainstream liberalism. As for abstinence only education, I am not clear on how you opt out of a message (about forms of "safe" sex) that will not be given. Once again, it's not my sense that many liberals actually object to abstinence on the part of school children. If, of course, it is possible to argue that some particular form of abstinence education in some way endorses or advances a religious position, then its opponents frequently seek to have it banned.

I don't know that it is characteristic of conservative proponents of speech to which liberals object to oppose opt-outs. If anything, my guess is that educators, having chosen a curriculum or messages to be conveyed, tend to dislike "opt-outs" which are, of course, a challenge to their authority and an added transaction cost.

Posted by: Rick Esenberg | Sep 5, 2009 10:58:46 AM

I can answer at least one of your questions.

In one district in Texas, the district informed parents that their kids would be permitted to opt out of the Obama speech, "just as kids are permitted to opt out of saying the Pledge of Allegiance."

Anti-Obama-speech parents protested the comparison, demanding--and receiving--an apology from the district.

Posted by: Deb Ahrens | Sep 5, 2009 12:15:22 AM

Paul, I'm not sure what the fuss is all about. Indoctrination? Are the people in this Republic that daft or paranoid?

Let me share a somewhat similar experience that I had and that swelled my chest with pride. On my first day of First grade in Rishon LeZion, Israel, the then Minister of Education, Abba Eban, spoke to all of Israel's children, Arabs and Jews alike, and here is what he said. "Children you must work hard in school and take pride in your efforts. You will also make us all proud of you. You must however do this not only for yourselves or your parents, but also for the nation."

That fact that I remember Eban's words decades following his speech should be evidence of the impression that they made upon me. I was proud to go to school and learn, and I did work hard. If President Obama's speech can make that type of impression on even one child then as far as I am concerned his time will be well spent.



Posted by: Itzchak Kornfeld | Sep 4, 2009 4:42:58 PM

Sorry for not being clearer. I meant the latter, although it might be a bad example because no effort to teach intelligent design ever has gone through. Maybe a better example would be the textbook inserts about "evolution is just a theory."

Posted by: Howard Wasserman | Sep 4, 2009 1:10:06 PM

"[I]f liberals lose the battle [over evolution v. design], I have not heard of them doing so."

Do you mean that liberals do not lose this battle, because if they are faced with a school district that wishes to teach intelligent design, they sue and are generally vindicated by the court system (as in the Kitzmiller decision)?

Or do you mean that liberals do not ask for opt-outs if the school district decides to teach intelligent design?

Posted by: Marc DeGirolami | Sep 4, 2009 12:29:26 PM

This is going to sound partisan, so I apologize in advance, but . . .

First, I agree that this is entirely about Obama and efforts by a lot of people to turn disagreement with his policies into an effort to deligitimize him and his presidency--to suggest that, regardless of what happened last November, his policies are "un-American" and thus his bringing his views to the children is nefarious. Obama is not *their* President, so he should not be speaking in the public schools to their children. Would the chair of the Florida GOP really be talking about nefarious indoctrination if President George W. Bush were going to address public school students? In fact, what would conservative bloggers have called parents who objected to their children being "indoctrinated" by Bush and wanted to hold them out of school?

For what it's worth, I do not think this is about race--I think it is about any Democratic President. I could imagine similar noise if Bill Clinton had planned to do the same thing.

Second, I think the better analogy is not to the fallout after Newdow, but the fallout after Barnette or (modernly) the not-infrequent need of students and parents to take steps to enforce their rights under Barnette. With that change, I agree with Paul: Many (most?) of the same people wanting to opt their children out from this believe in the compulsory pledge.

Third (speaking in huge generalities), there typically is a liberal/conservative divide on things such as opt-outs--in part because many opt-out demands are religiously based. So if religious conservatives lose the battle over the content of sex ed, parents tend to demand opt-outs; if liberals lose the battle, parents accept that their children will get no sex ed or abstinence-only. If religious conservatives lose the battle over evolution v. design, they demand opt-outs; if liberals lose the battle, I have not heard of them doing so. Same with mandatory civics education, which usually has a "love-of-country" or "respect for our leaders" bent to it (although apparently not when our leaders are Democrats--see # 1 above).

Posted by: Howard Wasserman | Sep 4, 2009 12:07:22 PM

This is a race thing, as much of this garbage is.

Posted by: anon | Sep 4, 2009 11:50:22 AM

Tim Wise knocked it out of the park on this one. This isn't about indoctrination, these people are afraid of Barack.

Posted by: Anonymous Frustrated Lawyer | Sep 4, 2009 11:41:25 AM

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