The Confusion Between Education and Democracy

Writing in the New York Times, Stanley Fish, the usually leftish literature and law professor, says Clarence Thomas (yes, that Clarence Thomas) is right about student rights:

Thomas argues from both history and principle: “In the light of the history of American public education, it cannot seriously be suggested that the First Amendment ‘freedom of speech’ encompasses a student’s right to speak in public schools.” Early public schools, Thomas reports, “were not places for freewheeling debates or explorations of competing ideas.” Rather, schools were places where teachers “relied on discipline to maintain order.”

And this view of what properly goes on in public schools was confirmed in the rulings of state courts in Vermont, Connecticut, Maine, Alabama, Tennessee, Kentucky, Indiana, North Carolina, California and Missouri, among others. It is only since Tinker — which, Thomas contends, “effected a sea change” in this area of law — that we have been troubled by talk of students’ speech rights. (One suspects that Thomas is uneasy about the expansion of First Amendment rights in general. As recently as 1942, in Chaplinsky v. New Hampshire, the Court was able to rehearse a paragraph-long list of forms of speech that did not rise to the level of constitutional notice. That paragraph could not be written today.)

Although Thomas does not make this point explicitly, it seems clear that his approval of an older notion of the norms that govern student behavior stems from a conviction about how education should and should not proceed. When he tells us that it was traditionally understood that “teachers taught and students listened, teachers commanded and students obeyed,” he comes across as someone who shares that understanding.

As do I. If I had a criticism of Thomas, it would be that he does not go far enough. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.)

One reason that students (and many others) have come to believe that they have these rights is a confusion between education and democracy. It is in democratic contexts that people have claims to the rights enumerated in the constitution and other documents at the heart of our political system – the right to free speech, the right to free assembly, the right to determine, by vote, the shape of their futures.

Educational institutions, however, are not democratic contexts (even when the principles of democracy are being taught in them). They are pedagogical contexts and the imperatives that rule them are the imperatives of pedagogy – the mastery of materials and the acquiring of analytical skills. Those imperatives do not recognize the right of free expression or any other right, except the right to competent instruction, that is, the right to be instructed by well-trained, responsible teachers who know their subjects and stick to them and don’t believe that it is their right to pronounce on anything and everything.

What this means is that teachers don’t have First Amendment rights either, at least while they are performing as teachers. Away from school, they have the same rights as anyone else. In school, they are just like their students, bound to the protocols of the enterprise they have joined. That enterprise is not named democracy and what goes on within it – unless it is abuse or harassment or assault – should not rise to the level of constitutional notice or any other notice except the notice of the professional authorities whose job it is to keep the educational machine running smoothly.

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