First Amendment in Schools

by Charles C. Haynes, Sam Chaltain, John E. Ferguson Jr., David L. Hudson Jr. and Oliver Thomas

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Foreword

The notion that students should learn more about the Bill of Rights, and especially about the First Amendment, is hardly new. Roughly 40 years ago, three events focused national attention on this educational priority. A group of social studies teachers and curriculum developers, lawyers, and others gathered in Williamstown, Massachusetts, late in 1961 to prepare a report that became a blueprint for law-related education. The next year Supreme Court Justice William J. Brennan Jr., soon to be the most prominent jurist on free speech issues, took a leading role at a Washington-area conference on Bill of Rights education; that fall he gave the keynote address to the National Council for the Social Studies on the same theme. A few months later, the Ford Foundation commissioned a seminal study of law-related education by Chicago lawyer Alex Elson, whose report gave further momentum to curricular emphasis on civil rights and civil liberties.

These efforts had a disquieting antecedent. During the 1950s, several surveys of high school students and recent graduates revealed an appalling lack of knowledge about the Bill of Rights. Such a discovery was the more alarming because it came at the height of the Cold War, when the nation was challenged by fears of Communism and subversion on one hand and by the excesses of McCarthyism on the other. At a time when freedoms were being sorely tested and when judgments were being made about civil rights and liberties in the courts, in Congress, and even in state and local councils, educators were startled to learn how little the nation's schools were doing to prepare future citizens to shape and protect these basic values.

Many groups responded to the call and began to develop law-related materials, with special emphasis on freedoms of expression and religion protected by the First Amendment. The American Bar Association created new committees for this purpose. Regional and local bar groups followed suit, most notably the Chicago Bar Association, which collaborated with the Chicago Board of Education to found Law in American Society. State educational agencies, especially the California State Board, established programs to provide law-related materials to the schools of the state. California also became the home of two successful and durable Bill of Rights projects, Law in a Free Society and the Center for Civic Education, which rank high on a now-substantial roster of programs devoted to overcoming the gap in student understanding of civil liberties.

Along the way there were bound to be a few disappointments. In Chicago, for example, it proved far more difficult than either the lawyers or the teachers had expected to find entry points in the established social studies curriculum for the new law-related units. Eager individual teachers found a niche for the new materials, but the structure remained largely impermeable there and in many other communities where the will existed, if not always the way. There were bound to be excesses, as with any good cause. The supreme irony was the experience of a Burbank, California, public school superintendent who was effectively forced from office for failing to add enough Bill of Rights material to satisfy a committed but intransigent group of parents and citizens. During these years there was more of an emphasis on law-related material, and especially on the study of the First Amendment, both in the schools and in the published materials for teaching social studies.

Although recent surveys do not reveal the alarming ignorance of the 1950s, they do indicate that much remains to be done. If the entire text of the Bill of Rights, or simply that of the First Amendment, were circulated on the streets as a petition, many would resist approving it—either because they did not recognize their own Constitution as the source or, even worse, because they could not accept the principles reflected in these basic guarantees. Thus the time is ripe, and the need urgent, for everyone to understand the deeper meaning of free expression and religious liberty.

Such urgency surely existed by early March 2001, when the First Amendment Center and the Association for Supervision and Curriculum Development (ASCD) launched “First Amendment Schools: Educating for Freedom and Responsibility.” Yet the events of Sept. 11, 2001, dramatically raised the stakes. The official response to the horrific attacks of that day raised the stakes with regard to free expression—in a host of ways of which we cannot even be completely aware until measures adopted in the War on Terrorism are more fully tested in the courts. Meanwhile, the scope and character of our nation's religious freedom stand as a special beacon against the conviction—not only of certain Islamic militants, but of many others as well—that government and religion should be partners, with the state essentially subordinate to a clerical orthodoxy.

It is in this context that the First Amendment Schools project offers such high hope for enhancing appreciation and understanding of our most basic liberties. The project promises to recognize and support the efforts of individual schools and teachers to expand exposure to First Amendment values, and to make materials widely available for teachers and students who wish to know more about their heritage of free expression and worship. Those who convened the Williamstown workshop, launched the Bill of Rights initiatives of the 1960s, and prepared materials for an earlier generation of students would applaud what is today being done under First Amendment Schools auspices.

The First Amendment is the oldest and most durable of the world's guarantees of expressive and religious freedom, surpassing even the constitutional safeguards adopted more recently by nations much older than the United States. It is also unique in several important ways. Although some other countries expressly protect freedom of worship and belief, only Australia insists on a separation between government and religion— and Australian judges have interpreted an identical textual provision less rigorously than have U.S. courts.

When it comes to expression, the First Amendment reaches freedom of assembly and petition, as well as speech and press. It has also been expanded to protect freedom of association, symbolic or nonverbal communication, and most recently speech in totally new media such as the Internet. Moreover, U.S. courts insist that expression be freer than just about anywhere else on earth. As you will learn in the pages that follow, such acts as wearing antiwar insignia or burning a flag in protest may be protected here as “speech” even though few other legal systems reach that far. We also insist that deeply offensive, militantly racist, sexist, and homophobic rhetoric must be tolerated to a degree that few, if any other, nations demand. In the United States we sometimes pay a high price for our freedom of speech—in wounded feelings, in uncivil discourse, even in public disorder—but we believe deeply that such costs are in the long run worth paying in order to preserve the First Amendment values that have served us so well for more than 210 years.

This book provides a clear understanding of what First Amendment values mean and how they operate in very practical as well as abstract terms. It should not only fill that critical gap for the next generation of national leaders, but along the way it should make fascinating reading for anyone who cares about our liberties and our legal system.

—Robert M. O'Neil, Professor of Law, University of Virginia, and Director, Thomas Jefferson Center for the Protection of Free Expression

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Copyright © 2003 by First Amendment Center. All rights reserved. No part of this publication—including the drawings, graphs, illustrations, or chapters, except for brief quotations in critical reviews or articles—may be reproduced or transmitted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage and retrieval system, without permission from ASCD.