Tag: Education

Does the First Amendment Protect Student Papers?

The following rant is in response to a report by Eugene Volokh from this past Friday’s Washington Post: Court allows First Amendment claim based on alleged professor retaliation for paper ‘harshly critical of … lesbianism’.

In brief, the facts of the case are this: a professor assigns a paper reviewing a film on the theme of lesbianism (Desert Hearts, by Donna Deitch, 1985); the student writes an apparently offensive paper expressing opinions about the film and lesbianism (n.b. I have not seen the paper); the professor refuses to grade the paper, and instead advises the student to drop the class; the student does so, but then sues, alleging a violation of her first amendment rights. The District Court of New Mexico agrees to hear the case.

A screen shot of the court’s
opinion allowing the case to proceed.

At this point in the case, the court has stated blatantly: “The Court concludes that the allegations of Plaintiff’s FAC are sufficient to make out a plausible case that Defendants violated Plaintiff’s First Amendment rights by subjecting Plaintiff to restrictions on speech that were not reasonably related to legitimate pedagogic concerns.”

I owe notice of this interesting article to the facebook feed of Craig Martin, a professor of Religious Studies at St. Thomas Aquinas College.

Basically, Martin’s views are similar to my own: he states that he typically doesn’t “invite student opinions” but rather asks “them to think like … the scholars [he assigns].” I do the same. Perhaps we hope that this distinction will protect us from having to deal with noxious opinions that are uninformed by scholarly practices. But I’m not sure it’s entirely adequate, since sometimes our work requires us to confront students who fail to meet standards precisely by expressing opinions (that we may not have asked for) in an unscholarly (or even obnoxiously expressed) manner; and sometimes students don’t like what we do in helping them learn to think like scholars.

So we may still have to deal with students who feel that their first amendment rights are being squashed, even if we just ask them to think like the scholars we assign.

Except that we, Craig and I, actually don’t have to worry about First Amendment issues. We don’t need to worry because we are at private schools and aren’t considered government employees. State University professors, however, they are on the hook here. Do they have special responsibilities to their students that private professors do not?

In spite of the fact that this court case will never affect my own practice, because I work at a private university, I personally find the situation troubling on multiple levels. I believe it’s worth raising questions about and commenting on the problems posed by the case. Maybe it can help us think more clearly about “free speech” in the college classroom.

In the excerpt of the ruling printed by Volokh (I recommend you read it), the court makes the following assumptions or claims:

  1. A state university professor’s classroom is considered a semi-public space.
  2. A state university professor’s actions can be considered actions taken by the government.
  3. A student’s opinions expressed in a paper can be considered protected public speech.
  4. Student speech in the classroom setting or in papers can only be limited by this government representative if there are “legitimate pedagogic concerns.”
  5. Otherise, a student should be free to express any views they choose in a classroom, and is indeed entitled to that privilege regardless of a professor’s views.

I find much to complain about here.

  • First, is the professor really just a stand in for the government? I think not. This is too simplistic. The professor is not hired directly by the government and doesn’t directly represent the government, but rather represents an academic field of study as a disciplinary expert. She or he is a contract employee of the government who has a specific task to accomplish vis a vis the students in his or her class with respect to providing instruction and training in that discipline. This is different than being “the government.”
  • Is the classroom a semi-public space? First, I want to reject the notion of “semi-public” as being a confused concept. But in any case, the answer is no. The classroom is a space of relationship between a disciplinary master or doctor and a limited number of novices who have been granted access to that space. Their access to the relationship is based on certain qualifications, such as admission to a school or program. Student novices are welcome in a class so long as they respect the relationship they have entered into. Their presence in a course is largely voluntary. The relationship between a particular student and a particular professor in a particular classroom is entered into on a voluntary basis; even in a required class the relationship is technically voluntary, since admission to the school and program and particular course of study were all sought voluntarily. When you decide to enter college or go to university, you are volunteering to play that game of being the novice in a master’s workshop. This is apprenticeship and the partners are not equal.
  • Should student self-expression in a college level course be thought of as a form of public, and thus protected speech? Again, I think not. The role of the novice is to engage in the work and practice assigned by the master. All activities related to the course are pedagogic in nature, including all student discussions and forms of self-expression in class. Everything the student says or does is subject to evaluation according to disciplinary standards. The bottom line is that, although a class may even be a training ground for citizenship and self-expression, ultimately, the classroom is not a “forum.” On campuses, we actually do have public “fora,” (the plural of forum is fora) on various topics, and we usually term them as such. As in, “come to tomorrow’s forum on the middle east peace process.” If there is a “forum” on an issue, we ask for people to gather, discuss, and share opinions. But in the classroom the standard is a bit different. We don’t put “psychology” or “biology” up for a forum style discussion. In any case, each professor will have to decide for her or himself concerning what format of student engagement and participation in class works best for training students in whatever disciplinary conventions are being taught. The students won’t decide. The professor will. There’s a power differential there and that difference matters.
  • Furthermore, we must observe that in the context of the college-level course student papers are usually the furthest thing from “public” speech. In point of fact, under law, student papers are considered to be PRIVATE speech. Papers are private academic records which are governed by FERPA, the Federal Educational Rights and Privacy Act. Only a student can make a paper public; submitting a paper to a professor does not turn it into public speech. FERPA protects the privacy of papers (and, for that matter, classroom discussion).
  • The “legal” analysis I offered in the last bullet point also applies to a more common sense or pragmatic assessment of what a paper is. Papers simply aren’t public as we commonly understand that term. Typically (although “legitimate pedagogic concerns” can alter this practice considerably), the only people who ever see a student paper are the student and the professor. If a professor receives a privately written and communicated paper, reads it privately, reaches a private conclusion about the paper’s merits, and then expresses those conclusions to the student privately, how is this in any way a case of public speech? It is private speech.
  • Not only is the paper private rather than public—as a speech-act whatever is written in a paper has not been prevented or restricted. The paper is the paper. Now, after the student’s act of speech is completed, it’s the professor’s turn to speak. And so, the paper the student writes will be evaluated. In this particular case, the paper was evaluated verbally, not with a letter grade. Let’s look schematically at the speech event, the facts of what happened. An assignment was issued. Standards of assessment were communicated (we hope; they always should be). Then the student wrote; i.e. the student expressed herself or himself. The student’s speech was unimpeded; there was no restriction on their act of “speech;” no physical or psychological constraint was imposed. Only, one hopes, the student would limit herself according the disciplinary standards she should have been learning. She would accept that there are consequences for the manner in which one expresses oneself, and that those consequences are context dependent. Once the paper has been written and submitted, the professor then reacts to the paper from a position of authority and greater power. Now, how the professor reacts matters. It is an enormous responsibility. Indeed, it is possible that in the case referred to by Pompeo vs. University of New Mexico, the professor may not have handled her responsibility well; but that is another matter. When a paper is evaluated, the student may not like how the professor reacts, but, if you are told that your paper is wrong, or bad, or out of line, or offensive or unacceptable in some way, it does not mean that your first amendment rights have been violated.
  • Therefore, in this case, logically, the only possible way we could speak about the student having had their first amendment rights denied would be the fact that the student was asked to drop the class. Does the student possess a general “right” to express her opinions in that class? If so, they were abridged. But this is pure foolishness. First of all, being a registered student in a college level class is a privilege, not a right. Second, a student’s speech in that class is not public, as I stated above, or as it would be in a true forum. Third, speech in a class is never free in the sense of being free of conventions, limitations, evaluation or standards of decorum. These vary widely depending on the discipline and the professor. They aren’t to be set in a courtroom. Students just have to adapt to what they find in the classrooms they enter. Finally, she dropped the class voluntarily. She could have stayed in the class, and accepted the evaluations as they were offered. How is voluntary withdrawal from a course at the professor’s suggestion a violation of a right to free speech? It makes no sense.

Finally, there is a word that needs to be said here. Somebody has to say it and it might as well be me. That word is entitlement. In some ways, by accepting this lawsuit, the court appears to endorse the “entitlement mentality” that so many professors claim today’s college students exhibit. We see students all the time who apparently think they are entitled to be in our classrooms. Students seem to think they are entitled to receive good grades. They seem to feel entitled to take tests and quizzes whenever it is convenient for them. They want to be able to email their professors about anything at any time, and they expect immediate replies. They feel entitled to their opinions, and ways of expressing themselves, and don’t want to be questioned. They feel entitled to be themselves regardless of whatever standards the professors and society demands of them. This is their time. They are entitled to study any subject in any way they want. They are paying customers. They paid their tuition, and are essentially buying credit hours towards a degree.

Well, I obviously reject all of that. All that it seems necessary to say about the “entitlement mentality” is that students may indeed be customers or clients, but many of them may have misunderstood what they are paying for. Strictly speaking, what the university student is paying for is an opportunity to work. They pay to work with experts who will practice critical engagement with their efforts at learning mastery of disciplinary subjects. They are paying for critical feedback (grades and evaluation, including evaluation of their opinions, or at least, the manner in which their opinions are expressed and argued for). The rest, all the work, is up to them. They pay, but are not entitled to anything other than what they earn within the agonistic context of classroom instruction and disciplined personal study.

Dewey, Democracy, Ethics, and Education

At the beginning of our 12th week of class, my American Philosophy class (PHI 216) read John Dewey’s “The Ethics of Democracy,” an essay published in the 1888 edition of the University of Michigan’s Philosophical Papers [see here google books full text]. It’s curious timing for me, since I am also trying to find time to read Martha Nussbaum’s 2010 book Not For Profit: Why Democracy Needs the Humanities, which explicitly cites Dewey as an influence and shares his concerns.

Both Nussbaum and Dewey argue for a progressive and humanistic vision of democracy as an ideal to be striven for, and both view education as an essential, or perhaps as the essential, tool or process which can help democracy achieve its aims.

Dewey’s high minded essay could perhaps be faulted for its tendency to assert and stipulate rather than to prove its claims; it is a piece of youthful sermonizing (he was 29 at the time of publication). But its brilliance is clear enough. The essay argues against a “numerical” understanding of “democracy” as if it were simply a matter of giving rule and power to the mass of individualistic individuals. For Dewey, democracy is an ethical ideal. The form of governance that emerges from democracy (for Dewey, “democracy” is not merely a form of government, just as the “state” or “nation” is not identical with “government”) is rooted in an inescapable assumption that such governance rests upon the dignity and worth of the individual personality: “In a word, democracy means that personality is the first and final reality.” Sovereignty originates with the people, revealing that democracy has an ethical core; the idea of the infinitely dignified individual (or in Dewey’s terms, personality) implies the “highest ethical ideal which humanity has yet reached,” an ideal which Dewey freely asserts can be embodied in that classic motto of the French revolution: “liberty, equality, fraternity.” Dewey’s idea of the sovereign personality implies an “individualism of freedom, of responsibility, of initiative to and for the ethical ideal.” Ultimately, this ethical ideal demands progress towards full liberty for individuals, but also full equality and brotherhood: not just under the law, but also in what he terms the “industrial” (we would say, “economic”) sphere of life: “democracy is not in reality what it is in name until it is industrial, as well as civil and political… a democracy of wealth is a necessity.” Having claimed this, he denies, quite flatly, that this implies an allegiance to any kind of socialism or redistribution of wealth. Such a redistributionist idea of economic or industrial equality would threaten to reduce the democratic ideal to a concept of merely numerical mob rule. Equality isn’t quantitative, it’s qualitative. “[D]emocracy is anything but a numerical notion; and… the numerical application of it is as much out of place here as it is everywhere else.”

At this point, Dewey appeals to a progressive ideal informed by a neo-Hegelian concept of evolution:

“What is meant by a democracy of wealth we shall not know until it is more of a reality than it is now. In general, however, it means and must mean that all industrial relations are to be regarded as subordinate to human relations, to the law of personality. Numerical identity is not required; it is not even allowed: but it is absolutely required that industrial organization shall be made a social function.

Clearly enough, such a transformation of society’s economic relations is only possible when we transform people’s understandings of who they are, and of who their fellow citizens are. Human beings are ends, not means to ends. As ends unto themselves, individual personalities are not at the disposal of anyone. They do not exist for the service of a larger economic collective or as mere units in a system of production. Dewey knew that the future transformation of civil, political, and industrial relations, depending as it does on a proper self-understanding, could only happen through a transformation of the educational system; so he spent the majority of his subsequent career working to effect just such a transformation. This was his motive in the establishment of the University of Chicago Lab School, his involvement in Jane Addams’ Hull House, in his participation in the creation of the New School of Social Research in New York, and also in his publication of a long series of treatises on pedagogical theory. His theoretical work became dramatically influential.

Yet, almost a century and a quarter later, Nussbaum now points to an alarming decline in Dewey’s influence. Or perhaps it might be better to say, she points to a reactionary movement against such progressive values in education. Governments and populations everywhere have begun to insist that the first and greatest function of education is to serve what Dewey would call an industrial goal: economic development and growth in GNP. Contemporary public policy focuses on how education can create quantifiable and measurable progress. This manifests, on the one hand, most notably as a tendency to neglect or even de-fund “the humanities” in favor of “vocational” or “scientific” education. For the results of education in the humanities cannot so easily be numerically assessed. On the other hand, it results in the phenomenon of “teaching to the test”: placing an undue emphasis on quantifiable results in the assessment of student outcomes. Such an emphasis threatens to abandon critical thinking as an educational goal, in favor of rote memorization of vocabulary, math, and factual data, but it also produces such monstrous abortions of pedagogical practice as computer assisted grading of written essays on the SATs. Even at the progressive, private Lab School, founded by John Dewey, Nussbaum warns, the “wealthy parents who send their kids to this elite school [are] … impatient with allegedly superfluous skills, and intent on getting their children filled with testable skills that seem likely to produce financial success … [and] are trying to change the school’s guiding vision.”

But Education for democracy cannot be, to borrow Dewey’s term, “numerical.” It should not be “for profit.” It should be guided instead by the ethical ideal without which true democracy simply does not exist. Democracy, the ground of real political sovereignty, is also the ground of industrial life, properly understood. We don’t, to paraphrase Dewey’s words, apply ethics to the “industrial sphere.” Instead, “the economic and industrial life is in itself ethical, … it is to be made contributory to the realization of personality through the formation of a higher and more complete unity among men.”

In comparing this sublime essay of Dewey’s with that of the celebrated Nussbaum, I have found myself a little bit disappointed. Dewey writes like a critical academic prophet, full of philosophical abstractions and idealistic concerns. Nussbaum writes plainly, directly, and clearly. I worry that she sees herself as writing for an academic and popular audience that has not only lost its faith in humanistic ideals of education, but has grown weary of parsing philosophically difficult works. Does she keep her language simple because she perceives that, in the age of cable television, the internet, video games, and the decline of the newspaper, our facility with language has atrophied? Or is she simply a master educator who, having reached a mature 64 years of age, feels no need to impress us with her erudition?

Never mind. She is also brilliant, and that comes through. What sets Nussbaum’s ethics apart from Dewey’s is an explicit commitment to expanding our understanding of the basis of what Dewey merely called “fraternity” without blushing at the ideological freight of such gendered language. Nussbaum makes an interesting argument that begins with a psychoanalytic and social-psychological understanding of child development. Among the goals of education must be an effort to overcome the natural narcissism and aggression of the individual (and of those limited groups of individuals known as cliques, parties, tribes, classes, etc.) by providing an opportunity for children to develop their equally natural capacities for compassion, empathy, and understanding of others, and by cultivating a critical awareness of the myths and ideologies that impinge upon a true self-understanding and facilitate oppression and exploitation of “others.” The humanities in particular are those disciplines which present and explore the human condition in such a way as to help cultivate an awareness of “other people … not [as] … slaves but [as] separate beings with the right to lives of their own” (Nussbaum, 37).

About 2500 years ago, in China, it is reported that the Confucian philosopher Mencius “went to see King Hui of Liang.”

The king said, ‘Venerable sir, since you have not counted it far to come here, a distance of a thousand li, may I presume that you are provided with counsels to profit my kingdom?’

Mencius replied, ‘Why must your majesty use that word “profit”? What I am provided with, are counsels to benevolence and righteousness, and these are my only topics. …

‘If your Majesty say, “What is to be done to profit my kingdom?” the great officers will say, “What is to be done to profit our families?” and the inferior officers and the common people will say, “What is to be done to profit our persons?” Superiors and inferiors will try to snatch this profit the one from the other, and the kingdom will be endangered… if righteousness be put last, and profit be put first, they will not be satisfied without snatching all.

‘Let your Majesty also say, “Benevolence and righteousness, and let these be your only themes.” Why must you use the word — “profit?”

The quotation is taken from The Mencius, a classic of the Chinese educational system, as it appears in a reader that we use in our freshman humanities course at Mars Hill College, LAA 121: Character, which explores concepts of human nature and behavior. If anything, it shows that Nussbaum is in good company. The ancient sages would agree: where profit becomes the supreme motive, we have lost our way, and our society is endangered. We can criticize their pedagogical theories, their concept of hierarchy, order and government, their lack of understanding of the true basis of sovereignty in the dignity of the people, but the Confucians clearly upheld transcendent values that we ourselves have begun to lose sight of. To our peril.

Human beings are not servants of profit. They are not means to an end. Yet the structures of our system, industrial and educational, seem poised to embrace this profoundly anti-humanistic idea, in the name of “development,” or “financial success.” They will not do so consciously; they will do so with the best intentions, but without realizing the implications of their shift of ideals. Insofar as we Americans have allowed the economic bottom line, the concept of profit, to become central to our understanding of educational success, we have not only rejected the true and proper aims of education in a democratic society, we have actually embraced a profoundly anti-democratic conception of our society. Something dire necessarily follows from such an audacious ideological shift. Dare I point it out? Can you afford to ignore my oracle? Our republic cannot survive the abandonment of its democratic ideal. And will not.

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