Avoiding the Basics

Tibor R. Machan

Lately I have been finding myself in agreement with
controversial Stanley Fish, emeritus professor at Duke University and now
teaching at Florida International University. His recent Op Ed column
in The New York Times, defending Justice Clarence Thomas's opinion in
Morse v. Frederick that, in Fish's words, "it was alright to
discipline a high school student because he and some of his friends had
unfurled a banner reading 'Bong Hits 4 Jesus' at a school-sponsored
event," is a case in point.

Fish recounts the case as follows: "When the principal of the school,
Deborah Morse, asked the students to take the banner down, one of them,
Joseph Frederick, refused. He was suspended and his suspension was upheld
by the school superintendent, who cited a board policy prohibiting any
form of expression that 'advocates the use of substances that are illegal
to minors.' Mr. Frederick then filed suit, alleging that his first
amendment rights had been violated. A three-judge panel of the United
States Court of Appeals for the Ninth Circuit agreed with him, but the
Supreme Court reversed by a 5-to-4 vote, and held for Principal
Morse."

Fish and with Thomas are correct here, about the "right to freedom of
speech" at schools. No such right exists any more than there is a
right to speak out in a church or at some office building. The issue isn't
about that, in fact. The real problem, one that Fish and many other
commentators simply fail to appreciate, is the near monopoly of government
schools, which leads to a one-size-fits-all approach to pedagogy,
including in higher education. It is here that the principal and
superintendent went astray in Morse v. Frederick. They have been put into
the position of managing schools for the government, which in turn has
practically monopolized schooling in America (unless one is able to afford
paying double) and thus stifled variety and experimentation in pedagogy.

Consider that if governments ran most of the country's magazines, there
would be a similar problem. Yet, as it is and fortunately, owners of the
great variety of this country's magazines all have the right to exercise
freedom speech even while within their editorial departments they can
impose their standards and preferences and publish what they want.
Magazine publishers do not need to open their pages to people they don't
want to support with space—in short, no one has the right of free speech
inside the magazine. Nor need they make room for editorial policies with
which they disagree. Similarly, no one has the right of free speech inside
a school either. But unlike magazines, schools are part of the public
square. As such they are part of the government near-monopoly over
education.

As the public square expands it will be a big problem whether
schools make the expression of diverse opinions, even odious ones,
possible; that's because government will be in charge of what happens
everywhere. The battle then will be between a permissive public policy
versus standards of proper conduct. The free speech issues will become
moot since it assumes a dominant private sector. It isn't censorship when
governments dictate school policy where they run schools; it is mere
school administration. So, I say, privatize education and then we can have
diversity, competition, and so forth, like we now have in the realm of
religion.

Clarence Thomas and Stanley Fish are correct about the "right
to freedom of speech" at schools. No such right exists any more than
there is a right to speak out in a church. But there is the problem of the
virtual monopoly of government schools, which leads to a one-size-fits-all
approach to pedagogy, even in much of higher education. If governments
ran most of the magazines, there would be a similar problem. As it is,
owners of magazines have the right to free speech but inside them the no
such rights exist for the writers, et al.

Protecting the authority of school administrators in a fully free,
open educational market place would be akin to protecting the full
authority of publishers and editors in the management of magazines and
newspapers or ministers in the administration of churches. Except we now
have nothing like a fully free, open education market place. And so the
diversity such a market place makes possible is now quite impossible, so
those who are excluded from the one-size-fits-all school policies can do little else
than fight for their place at the table, as it were, even if on the spurious
grounds that their right to freedom of speech has been violated by the
enforcement of school rules.