« Do you want to be a judge when you grow up? | Main | Happy Hour at SEALS Law Conference, Thurs July 28th at 9pm »

Friday, July 15, 2011

Public Schools to Teach the Importance of Guns in American History

For those of us who are interested in the somewhat odd status of public schools within the realm of what I call "First Amendment institutions," the recently enacted California law requiring public schools to teach about the contributions of gay and lesbian history to state and national history presents an interesting case.  (Here is the New York Times story.  Ari Waldman has been writing enthusiastically about the legislation in several posts at CoOp.)  

The institutionalist view argues that certain central speech institutions, such as universities, churches, and the press, are an important part of the infrastructure of public discourse, and should be substantially legally autonomous within the sphere of their expertise.  One of the bases for this argument is that these institutions have shown a long tradition of and capacity for self-regulation in accordance with self-regulatory norms and values that help serve the functions of those institutions within public discourse, and hence help advance the system of public discourse that is at the heart of the First Amendment, and of society itself.  

Public schools fit poorly within this structure.

 Surely K-12 education is marked by an increasing professionalization; over time, it has adopted many of the structures, norms, and practices that mark other First Amendment institutions.  The fact that it is a public entity doesn't necessarily alter that fact; public broadcasters are state entities too, and yet the Supreme Court has deferred to them insofar as they have acted as professional journalistic entities.  State action is relevant here, but not conclusive.  So we could imagine public schools as First Amendment institutions, entitled to substantial judicial deference.  But professionalism is not the only salient quality of public schools.  So is local political control.  Universities -- even public universities -- do not act in most respects like other state actors.  But public schools, generally run by elected or appointed state and local boards, act in precisely this fashion.  And like other political institutions, they are often a site of political contestation about what speech the "government" should engage in and what values it should advance.  The more the public schools act like other political state actors -- the less their actions are guided by professionalism and self-regulatory norms -- the weaker the argument for autonomy or judicial deference.

California's FAIR Education Act is an example of this.  No doubt some or many educators would share its goals for professional as opposed to political reasons.  That is, some educators might believe that the pedagogical goals of primary education are furthered by including gays and lesbians within the scope of the history taught in those schools.  Whether they're right or wrong about this, to the extent those conclusions draw on professional reasons, there would be reason to respect those choices, or at least to acknowledge the expertise and professional standards that went into them.  But that's not really the case here.  The FAIR Education Act is not about professionalism.  It's about local (in this case, state) political control of the public schools, and about the right of the people to decide what values are taught there.  Whether educators happen to agree with the substance of the legislation on professional grounds is mostly irrelevant; what counts is that this is a democratic statement about public values, exercised through the schools.

How you feel about this may depend on how you feel generally about institutions vs. political bodies, about professionalization vs. populism, and perhaps about public schools generally.  (Paging Rick Garnett!)  That's up to each of us.  But we can certainly conclude that California's decision is a political decision, not an institutional or professional one.  That's the point of this post's title.  This decision is no different from a political decision to require public school teachers to tell students about the importance of guns in American history, whether the teachers think such a command is professionally justified or not.  It's little different, for that matter, from telling public school teachers to teach students that the Holocaust has been overblown, or that capitalism is wonderful, or that Catholics are evil, or that collectivism is the key to solving social problems.  We may feel differently about each of those instructions, but the move is the same.  In that sense, the FAIR Education Act is simply a liberal mirror-image of similar decisions taken by the Texas Board of Education from a politically conservative perspective.  We may champion or oppose particular decisions; we may champion or oppose this general bent toward treating public schools as political bodies, mere arms of the state, rather than as politically insulated professional bodies.  But we should all see these decisions for what they are.

Let me close with a quote from an opponent of the legislation: “'It’s a sad day for our republic when we have the government essentially telling people what they should think,' said Tim Donnelly, a Republican state assemblyman from San Bernadino. Mr. Donnelly said the law prohibited schools from presenting gays and lesbians 'in anything other than a positive light, and I think that’s censorship right there.'”  Donnelly's first sentence is quite correct, but it raises a question from countless seders: "Why is this night different from all other nights?"  His second sentence is half-true.  From an institutional perspective, commandeering a professional institution that ought to be self-regulating according to its own settled norms and practices is a form of censorship.  From the perspective of standard First Amendment doctrine, however, this is just government speech, not censorship.  It's no different -- no better or worse on principled grounds -- than the myriad other occasions on which government tells its employees what to say.  It is a wholly standard application of government speech doctrine.  The larger question is whether we might want to think differently about government speech doctrine itself, where the government body in question is supposed to be a professional institution of its own rather than just a mouthpiece of the state.   

Posted by Paul Horwitz on July 15, 2011 at 09:05 AM in Paul Horwitz | Permalink

TrackBack

TrackBack URL for this entry:
https://www.typepad.com/services/trackback/6a00d8341c6a7953ef015433bc695b970c

Listed below are links to weblogs that reference Public Schools to Teach the Importance of Guns in American History:

Comments

The reason why Republicans like Donnelly don't get it is, that like their Democratic brethren, cheap religion like moral majority Republicans are just as statist and totalitarian in demanding that machinery of government be fully used to promulgate their moral position instead of the other guy's. Republicans are just as quik to throw civil society and self regulation of autonomous spheres under the bus as Democrats.

Posted by: BGR | Jul 19, 2011 2:15:24 PM

No doubt, defining the contributions of men and women in history according to sexual preference and sexual behavior would be a first. We should see this decision for what it is, an attempt to integrate the acceptance of sexual behavior that demeans the inherent Dignity of the human person, into the curriculum of the schools in California.

Posted by: Nancy D. | Jul 16, 2011 9:33:38 AM

I don't see the contrast you're suggesting in "where the government body in question is supposed to be a professional institution of its own rather than just a mouthpiece of the state."

I thought that the "profession" of schooling was developed as a way to form citizens according to the state's desired plan. Socialization, Americanization of swarthy immigrants, and so on.

In other words, public school developed precisely to be a mouthpiece of the State. We allow it up to a point, and push back a bit here and there. See Pierce.

What is a school's reason for being, if not to inculcate the State's view?

Posted by: Dewey's ghost | Jul 15, 2011 12:21:21 PM

Paul, great post, as per usual. Just to echo you, it seems clear that government-run K-12 schools are different, in important ways, from the education-oriented First Amendment institutions in which you and I are so interested. It seems to me that what they do -- necessarily, unavoidably, by design -- is not only transmit various capacities, but inculcate substantive commitments, which are determined in part through "politics" but also in part (we should not forget) by the institutional actors in the teaching profession (including ed-schools and unions).

On a related note, I asked, a few years ago, in this short essay, whether there can really be "free speech" in public schools: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1104722

Posted by: Rick Garnett | Jul 15, 2011 11:26:02 AM

"The state already requires schools to teach students about the contributions of some other minority groups, including black people and women. But until now, gay figures like Harvey Milk received little mention in state-approved textbooks."

I wonder if the legislator thinks requirements covering teaching about black people and women is a matter of "essentially telling people what they should think" as compared to expanding the range of information so that people are more informed when they think and determine their beliefs as a whole. Informing people that Whitman was gay doesn't tell one how one should think of him.

It is quite true that we don't just give local schools total discretion. I do not see this as an overly workable system, letting it be a matter of chance if some student is fully informed about history, or has a teacher who only wants to teach certain subjects. Any school system, including private and parochial schools with multiple branches, are likely to have various guidelines on what is taught.

Public school after all is in place for specific aims. We don't let them teach that blacks are inferior, though a private school might be able to in some fashion. So, there is some curriculum choices set by law. Teaching about guns, if done in an evenhanded matter, would be reasonable. Guns did have a major place in our history, for good and ill. 2A supporters however might not like the result.

Posted by: Joe | Jul 15, 2011 10:48:13 AM

Paul, interesting, thanks. Could you say more about why, from an institutional perspective, the greater localism of the political contestation in, e.g., public school education than university education should make public schools less truly FA institution in your sense? Presumably there will be political contestation in the less local institutions too. Look, for example, at the contestation that now surrounds higher education, and the (in my opinion) regrettable and aggressive efforts to strip away those traditional features of a liberal education which make universities unique places of learning. Those are political fights, stimulated by external political and economic forces which are non-local (parenthetically, I take the forces opposing liberal education to be making populist points, albeit non-local ones).

In other words, let's assume that the professionalization variable remains constant between these institutions (this is probably actually highly unlikely, as the degree of professionalization will be greater in, e.g., universities than in public schools, but just go with it). Why should the fact that the site of political contestation is local, as opposed to non-local or national or perhaps even global, make it less likely that we can describe the institution as a FA institution in your sense?

Posted by: Marc DeGirolami | Jul 15, 2011 9:37:00 AM

A thoughtful post. Thanks.

Posted by: Adam Scales | Jul 15, 2011 9:35:21 AM

The comments to this entry are closed.