Publications aren’t the only forms of expression now governed by Hazelwood’s ruling that speech can be limited when administrators claim ownership of the statement and think it’s “unsuitable.” Courts have applied the standard to plays, homework assignments, team mascots, and even cheer-leading.62 A cheerleader in Texas was kicked off the squad after she refused to cheer for a basketball player whom she had accused of sexually assaulting her at a party. (He and another boy had been arrested, but a grand jury had refused to indict them.) Her suit was thrown out by a federal district judge and a three-judge panel on the Fifth Circuit, which cited Hazelwood among other factors, noting, “In her capacity as cheerleader, [she] served as a mouthpiece through which [the school] could disseminate speech.” The school, the judges ruled, “had no duty to promote [her] message by allowing her to cheer or not cheer, as she saw fit.”63
In school, teachers’ statements have also been subjected to these tests. Teachers generally hold the same rights as students and are circumscribed by similar restrictions. They can refuse to salute the flag under Barnette, the same case that preserved that right for students, and their other freedoms have been litigated into a complex checkerboard.
According to federal case law, a teacher can urge a school to observe Black History Month64 but can’t talk about the needs of special education students.65 He cannot be fired for writing a letter to the editor accusing the school system of misallocating funds and deceiving taxpayers,66 but she can be dismissed if her students write plays on gang violence that incorporate the profane language of the streets.67
A drama teacher was transferred out of a North Carolina high school, and then lost in court, after she chose a play with a lesbian character and an illegitimate child for performance by four students in her advanced acting class. It didn’t matter to the school that they had won multiple awards for the production.68 Another drama teacher, Wendy DeVore, was threatened with dismissal in Fulton, Missouri, after her students performed Grease, the musical set in the 1950s, even though she had bowdlerized the script by switching profanity to slang and changing “weed” to cigarettes. Complaints came from three members of a church congregation about the drinking, smoking, and kissing in the show, so the principal ducked the next possible controversy by vetoing the teacher’s next choice: The Crucible, Arthur Miller’s play about McCarthyism. Facing the possibility of being fired, DeVore resigned.69
Schools are constant battlegrounds over what plays and books are suitable for children. Mark Twain’s Adventures of Huckleberry Finn has been removed from some school libraries because it contains the epithet “nigger,” and Maya Angelou’s I Know Why the Caged Bird Sings has been banned because of sexual content. In some districts, all it seems to take is a handful of complaints from a few prudish or religiously zealous parents, and banning orders go out for The Catcher in the Rye by J. D. Salinger, Beloved and The Bluest Eye by Toni Morrison, Of Mice and Men by John Steinbeck, Slaughterhouse-Five by Kurt Vonnegut, and other works considered classics. The Harry Potter series by J. K. Rowling, which has turned millions of children into early, avid readers, has been rejected here and there as “satanic” in its fantasy of wizardry and magic.
Narrow constituencies can easily activate school officials’ impulses to avoid controversy. The Miami-Dade School Board removed a picture book, A Visit to Cuba, after a former political prisoner complained that it painted a rosy picture of life in the communist country.70 Korean-Americans and South Korean consulates have mounted campaigns against So Far from the Bamboo Grove, a tale of persecution suffered by a Japanese family in Korea during the final months of World War II. Based on the author’s experiences as a Japanese official’s young daughter, it represents the other side of the better-known story of Koreans crushed under more than three decades of Japanese occupation, which is naturally the one Koreans prefer to see told. With careful teaching that fills historical gaps, the book can lead pupils into a sense of warfare’s human costs.71
The courts have entered these struggles over books with diffidence and equivocation. In 1982, the Supreme Court was unable to muster a clear majority on the constitutional question as it ambiguously overturned the decision of a school board in New York to remove ten volumes from school libraries. The titles came from a list that several parents had obtained at a conservative conference, and the school board ultimately ruled the books “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” Included were Vonnegut’s Slaughterhouse-Five, Down These Mean Streets by Piri Thomas, Black Boy by Richard Wright, Soul on Ice by Eldridge Cleaver, and A Hero Ain’t Nothin’ but a Sandwich by Alice Childress because it mentioned that George Washington had owned slaves.
Board members admitted that their decision was based on their “personal values, morals, tastes, and concepts of educational suitability” and declared it “our duty, our moral obligation, to protect the children in our schools from this moral danger as surely as from physical and medical dangers.”
On this, the Court provided less than a ringing declaration. Four justices crafted a narrow ruling that while vulgarity would be a legitimate reason to remove books, administrators’ personal tastes and political or social ideas were not; that while a school board could control classroom materials, it could not reach into a library and disrupt “the regime of voluntary inquiry that there holds sway”; and that this case covered only removal, not acquisition. So school librarians were free to decide not to order the books in the first place but not so free to get rid of them once they were on the shelves. The Court’s fifth vote against the school board came from a hesitant Byron White, who merely sent the matter back down for more fact-finding, which he thought necessary before deciding whether to join the other four in ruling that the authorities had violated the First Amendment. Therefore, the opinion has been a weak precedent.72
In choosing books and films, teachers push the envelope at some risk to themselves. Kansas legislators introduced a bill levying criminal penalties on teachers for promoting obscenity, a crime that might be prosecuted because an official happens to find an assigned book too explicit sexually.73 A teacher at Columbine High School in Colorado was fired (four years before the 1999 shooting) for showing his debate class Bernardo Bertolucci’s film 1900, which portrays two boys during the growth of fascism in Italy—and depicts violence, profanity, drug use, nudity, and masturbation. Finding that the school’s action met Hazelwood’s standard of “legitimate pedagogical concern,” the Colorado Supreme Court ruled against the teacher. But three dissenting judges affirmed a teacher’s obligation to lead students into difficult terrain: “When we quell controversy for the sake of congeniality, we deprive democracy of its mentors.”74
Efforts to quell controversy have come from both right and left. To avoid offending any conceivable viewpoint, New York State officials sanitized excerpts from great literature on the Regents English exams, which students must pass to graduate. Most passages were cleansed “of virtually any reference to race, religion, ethnicity, sex, nudity, alcohol, even the mildest profanity,” The New York Times reported.
Every mention of Jews and Judaism was deleted from Isaac Bashevis Singer. Elie Wiesel’s essay “What Really Makes Us Free?” lost references to God, so that the line “Man, who was created in God’s image, wants to be free as God is free” became, simply, “Man wants to be free.” Gone was Chekhov’s account, in “An Upheaval,” of a woman’s strip search of her servants as she looks for a missing brooch, even though the exam assigned students to cite the story in writing about human dignity. A reference to America’s unpaid dues to the United Nations was removed from a speech by Secretary-General Kofi Annan, along with his praise of “fine California wine and seafood,” which became “fine California seafood.”75 What an insight into the minds of certain influential educators. No wonder so many kids think school is unrelated to reality.
Skittish of conflict and possible disruption, officials often try to keep the reality of strident politics outside the schoolh
ouse gate, as they did in Aurora, Colorado, during the 2008 presidential campaign. When the school asked students to show their patriotism one day by wearing the national colors, a fifth grader used red and blue on a white T-shirt to write “Obama—a Terrorist’s Best Friend,” and was given a three-day suspension.76
This eagerness to avoid uncomfortable disagreement can drain the electricity from a class. During the 2008 Democratic primary, sixth graders in Washington, D.C., were handed brief biographies of Barack Obama and Hillary Clinton, part of an exercise on making outlines from research material. “The students were wild about Obama,” said Edie Tatel, a teacher mentor who was observing, “but the teacher said, ‘Remember, we don’t push politics in class,’ and then stayed very evenhanded. To my taste she could have shown a lot more enthusiasm for their excitement and awareness and still been ‘neutral’ as she intended, and as is appropriate. I do wish educators would bring some passion and thrill to the discussion!”
That’s a difficult blend in which freedom of speech and the obligations of teaching require careful mixing. Power flows down from the front of the room, where a teacher’s opinions can make children who disagree feel intimidated, marginalized, or stupid. “The potential for coercion and/or groupthink is one danger,” said Tatel, who also served on the advisory board of Teach for America in D.C. “Another is to discourage individual thinking, which we want to promote, not diminish.” For a teacher outside school, there was “nothing wrong with displaying a bumper sticker or yard sign: no one abandons rights of expression,” she believed, but not in class, where endorsing candidates would be “unprofessional and unethical.”77
Such was the instruction to faculty at Sammamish High near Seattle. “A member of the community has raised a concern over reports of political comments made by teachers to students in our classrooms. The concern is that teachers are indicating preferences for, or negative comments about, various candidates seeking the presidency in the 2008 election,” said an e-mail from Andrea Pfeifer, assistant principal. “Public school students attend school under compulsory attendance laws and they come from families with various political views, so it is important to be mindful of statements that we make regarding our own political beliefs. Of course, to the extent the content area being taught fits the topic, it is appropriate to educate students about the election process of candidates in an unbiased way. However, it is important to remember that we are employed first and foremost to educate students, not to use our public positions or work time to endorse a particular candidate, political party, or personal view.”
Katie Piper took some pride in being inscrutable politically as she taught history and government at the school. Toward the end of one year, she asked students if they thought she was neutral, and “most said, ‘Yes, I have no idea where you stand!’ ” The next year, though, her liberal views were discerned by about half of her more politically active advanced-placement class; the other half couldn’t tell. “Nobody said, ‘It seemed like you were conservative,’ ” she noted wryly. Most students thought that she should reveal her political leanings; they wanted to know.
PROFESSORS AND THEIR DISCONTENTS
College faculty can be less restrained, although some overestimate the maturity of their students, judging by the squalls stirred up by certain comments after 9/11. When professors made remarks outside the narrowed parameters of acceptable opinion, a few students on both the left and the right couldn’t listen and then simply disagree. Easily offended by unwelcome ideas, they complained, sometimes generating enough outrage among alumni and politicians to drive university administrators into dubious retaliation.
The morning of September 11, Richard Berthold, a professor of classical history, had the momentary bad judgment to make this crack to one hundred brand-new freshmen in his Western Civilization class at the University of New Mexico: “Anybody who blows up the Pentagon gets my vote.”
It was not meant as a joke. It reflected his “disagreement with much of our foreign policy,” he later wrote, “but in an embarrassing moment of insensitivity and stupidity I made this observation when more than a hundred people had just died at the Pentagon, making those words an exercise in incredible callousness.”
He was right about that, at least. He had no way of knowing whether any of his young students, most of them newly away from home, had relatives who worked there who might have been among the casualties. He did not fill the grown-up role of teacher to teenagers who, like all of us, were trapped at that moment in a well of fear.
Word of his statement rippled across the Internet, and suddenly his inbox was flooded with hundreds of hateful e-mails carrying death threats. “I was astounded,” he wrote, “at how many outraged Americans reminded me how much blood was spilled to defend our freedoms and then in the next sentence denied me one of those freedoms.” Yet as calls for his dismissal mushroomed, he got messages of support from many of the students who had taken his courses over thirty years, and “the week after the remark when I entered my Greek history class, the hundred plus students spontaneously applauded me, probably the finest moment in my teaching career.”
Berthold insisted that he was neither “some sort of liberal or leftie” nor “an unthinking conservative.” He portrayed himself as a gadfly who condemned both “liberal silliness” and “plainly silly conservatives.” That failed to endear him to colleagues, apparently, for few offered their backing. In the end, the university resisted demands to fire him (for which he would probably have won in court), and he settled for a reprimand. But relations became strained. After being negatively evaluated on his teaching, removed from giving his Western Civilization course, and accused of professional misconduct for using vulgar words “anytime anywhere in the world,” as he put it, he retired early, in 2002.78
Elsewhere, faculty members who stepped outside the unspoken limits were slapped around from both right and left. Many of the controversies turned on differences between what professors said and what students heard.
Professor Kenneth W. Hearlson, a born-again Christian and adviser to the campus Republicans, was summarily suspended for most of a semester by Orange Coast College in California after four Muslim students complained that in a political science class he seemed to blame them personally for Arab terrorism. According to an audiotape, though, his tirade, a week after the 9/11 attack, was aimed mostly at Muslim countries. He asked why they hadn’t repudiated Osama bin Laden, why leading Muslim figures denied the Holocaust. He condemned “hate-filled messages” from “Muslim students on this campus,” exemplified by a flyer the previous year showing a swastika over a Star of David. When he allegedly looked at the four Muslims and used the pronoun “you” as he mentioned Arab attacks on Israel, a student challenged him. “On the tape,” The New York Times reported, “Mr. Hearlson thanks the student for the interruption and says he ‘absolutely’ did not mean to accuse any student personally. ‘I am talking about Arab nations,’ he says.” He was reinstated and as of 2011 remained on the faculty.79
At Colorado State University, Steve Helmericks, a part-time sociology instructor, was removed from the classroom and limited to research after a student, whose husband was serving in Iraq, took offense at what he thought a “benign” comment: that American troops were dying unnecessarily in an unjust war. She quoted him as saying, more crudely, that Bush “is sending boys and girls out to die for no goddamn reason.” Although many other students found him respectful and fair, the larger conservative world mobilized a campaign of vilification. He was peppered with death threats by e-mail and phone, prompting him to change his number, keep a gun, and—some students observed—shift into a guarded mode that detracted from his teaching.80
The list goes on: Oneida Meranto, a Navajo professor at Metropolitan State College of Denver, who began taping her own lectures when maligned and threatened after conservative students targeted her liberal take on Latin America;81 a University of Pennsylvania physics professor who, by bashing Bush and the Iraq war, disturbed a student
who had served in the air force; an English professor at California State University, Long Beach, who made one Republican freshman “very uncomfortable” by including in the suggested topics for an essay “Should Justice Sandra Day O’Connor be impeached for her partisan political actions in the Bush v. Gore case?”82
Students are not supposed to be made uncomfortable by disagreeable ideas, evidently, even if they are expressed outside of class. An assistant librarian at UCLA was punished with a week’s suspension for sending e-mail declaring that American taxpayers “fund and arm an apartheid state called Israel, which is responsible for untold thousands upon thousands of deaths of Muslim Palestinian children and civilians.… So, who are the ‘terrorists’ anyway?” Alumni of the University of Texas tried but failed to get a professor fired for an op-ed piece blaming American foreign policy for 9/11. Faculty Web pages urging strong military action or denouncing homosexuality have invoked administrators’ wrath.
In portraying the campus as unpatriotic, the conservative cause had no better poster boy than Ward Churchill, chairman of the University of Colorado’s Department of Ethnic Studies, who wrote an essay blaming the United States for getting what it deserved when the planes plowed into the World Trade Center and the Pentagon. He saw the ghosts of American genocide returning for retribution: from perished slaves to massacred American Indians, from incinerated Japanese to the Vietnamese and Korean victims in their respective wars, and then the Iraqis dead by American hands in the 1991 Gulf War, “a performance worthy of the Nazis during the early months of their drive into Russia.… Good Germans gleefully cheered that butchery, too.”
Rights at Risk: The Limits of Liberty in Modern America (Vintage) Page 41