Want To Protect Free Speech On College Campuses? Start In K-12

Want To Protect Free Speech On College Campuses? Start In K-12
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A white paper from the Newseum released Tuesday correctly diagnoses the challenges to free speech posed by students on the modern campus, but doesn’t address one of the root causes.

Let’s talk first about what the paper’s author, Newseum President and CEO Jeffrey Herbst, gets right: In recent years, a disappointing number of threats to student free speech have come from other students. My employer, the Foundation for Individual Rights in Education, has observed this depressing trend, too. Although the protests at the University of California, Berkeley and the resignation demands at Yale University may have earned the most attention in the last few years, there’s more where that came from.

In the last few years, students have called for mandatory trigger warnings; restricting speech in public spaces; the criminal prosecution of protected speech; the disinvitation of speakers they don’t like; and for punishing the wearing of tiny sombreros (although it’s unclear that size matters, in this context).

Campus protests are not new. The act of protest is a form of protected speech, and FIRE, being non-partisan, takes no position on the underlying issues or demands the students have raised. What is troubling, however, is that these demands call for the use of institutional authority to silence or punish others engaging in free expression. This is a departure from the movements that came before, which were generally about upholding rights, not limiting them. Imagine protesters on campus complaining that integrating the campus was insensitive to their segregationist culture.

Sure, that’s asinine, but so is demanding discipline for sombrero-wearers.

Herbst points to research that shows students of this generation have a different understanding of the First Amendment than, say, the founders who wrote it, or Martin Luther King, or Lenny Bruce, or… well, anybody who has ever actually needed it for anything, ever. He writes:

The attitude of students toward free expression is not simply a patchwork of politically correct views, but something substantial and more worrying: An alternative understanding of free speech that is essentially “the right to non-offensive speech.” Overall, young adults tend not to believe that there is dissonance between being generally supportive of speech and regulating speech that is offensive to particular groups.

Herbst is right, and his proposals to remedy this are largely helpful: more education, making a better case for the value of freedom of speech in the context of how it has helped disenfranchised groups historically, and seeking out students who can become First Amendment advocates. But Herbst ignores what might make the biggest impact on college campuses: actually respecting free speech rights in the K-12 context.

As the white paper correctly recognizes, student free expression rights are substantially curtailed in most K-12 contexts. The Supreme Court’s 1988 decision in Hazelwood v. Kuhlmeier permits public school administrators in most states to censor school-sponsored student newspapers and other expression for any legitimate pedagogical reason. While the court’s 1969 Tinker v. Des Moines standard protects independent, on-campus student speech that isn’t illegal or disruptive, courts have been expanding the concept of “on campus speech” to include things like public sidewalks (and, sometimes, the internet) and expanding the concept of disruption to include things like calling district administrators nasty things online.

While the white paper recognizes that student free expression rights are substantially curtailed in most K-12 contexts, it suggests that problem can be rectified with education alone. But there is no reason to believe that is true. Students learn by watching our behavior, not necessarily by following the lessons we direct them to learn. If we want students to appreciate civil rights, we need to give them those rights.

Another problem is that, as usual, the state-imposed censorship of youth voices at the K-12 level doesn’t work. Students will continue to express themselves on social media, developing whatever understanding of freedom that imparts — presumably, that you can say anything you want, as long as you do it anonymously, in 140 characters or less, when the government isn’t looking, and nobody can find your employer.

More classes where students can recite, but not practice, the promises of the First Amendment will do nothing to change the cynicism we have instilled in them. It is asking too much of a student to live from ages five to seventeen with Snapchat as the only marketplace of ideas and then to arrive on campus with a Jeffersonian understanding of the role of free expression in American democracy. (Besides, that was a long time ago. He probably used MySpace.)

Being unwilling to lead by example seems as insincere to a high school senior as it does to a college freshman. And if we don’t have the ideological honesty to grant them the basic civil rights we believe everyone else should have, then maybe they’re right to be cynical. Maybe the First Amendment really doesn’t mean what it says.

If we aren’t willing to act like we believe in civil rights, and we keep rationalizing why we can take them away from young Americans, those high school students will grow up rationalizing why they can take them away from each other. Fortunately, it is also true that if we start acting like we believe respecting the basic rights of students in the K-12 context is a cultural value, students will carry that culture with them to their college protests.

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