A Contemporary Proposal for Reconciling the Free Speech Clause with Curricular Values Inculcation in the Public Schools

ARTICLE A Contemporary Proposal For Reconciling the Free Speech Clause With Curricular Values Inculcation in the Public Schools Susan H. Bitenskj . "The Child is father of the Man; And I could wish my days to be Bound each to each by natural piety." -- William Wordsworth! That we cannot be adults without first having been children is, by nature, the human condition; that we are blessed with Wordsworth's "natural piety" is far less certain. The world has seen no great surplusage of piety or, more laically, moral conscience. Barbaric historical phenomena such as slavery, the holocaust and the murderous nationalism of the 1990s,2 as well as less horrific travesties such as Watergate and insider trading, stand as grim testaments that morality has hardly been a consistent feature of history. Yet, as scarce a commodity as moral uprightness often appears to be, and as dim as its prospects may seem for gaining * Professor of Law, Detroit College of Law. B.A., Case Western Reserve University, 1971; J.D., University of Chicago Law School, 1974. The author is grateful to Bruce C. Hafen, Kevin C. Kennedy, Robert A. McCormick, and R. George Wright for their com ments on previous drafts. The author also thanks Dr. Milton V. Kline for his comments on a previous draft of Part II of this Article. Any errors in the Article are this author's sole responsibility. The excellent research assistance of Mark P. Douma, Kristen R. Gross, and Karen R. Maheu is much appreciated. The author dedicates this Article to her father, the late Dr. Reuben Bitensky, who, by his example no less than his word, taught those around him the value of human dignity and compassion, and to her husband, Dr. Elliott L. Meyrowitz, who first acquaint ed the author with the notion that law can play a catalytic role in popular norm forma tion. 1 William Wordsworth, My Heart Leaps Up When I Behold, in MAGIC CAsEMENTS 640-41 (George S. Carhart & Paul A. McGhee eds., The Macmillan Co. 1933). 2 For a description of the fratricidal nationalism that has recently plagued many areas of the globe, see Kenneth Auchincloss, A Fratricidal Year, NEWSWEEK, Jan. 4, 1993, at 24-29. 769 HeinOnline -- 70 Notre Dame L. Rev. 769 1994-1995 770 NOTRE DAME LAW REVIEW [Vol. 70:4 the day, Americans have long been preoccupied with and, periodi cally, quite agitated over the treatment of morality and values in their children's education.3 There is a rather touching optimism in this preoccupation, as if the adult psyche cannot relinquish hope that moral quality will prevail, in spite of the historical testa ments, if only the children can be properly taught. This preoccupation is especially warranted now and demands heightened attention in light not only of whole countries in search of their respective identities after the end of the Cold War, but also due to "accumulating evidence of a moral decline" per meating all levels of society within the United States during recent years.4 Government officials, business leaders, and ordinary adults have accepted rule-breaking and selfishness as a way of life in increasing numbers.5 Worse still, "general youth trends present a darker picture";6 the nation's youth have exhibited a disturbing tendency toward violence, vandalism, stealing, cheating, peer cruel ty and diminishing civic responsibility, among other antisocial and amoral behaviors.7 While a common concern for children's moral education has persisted even in an atmosphere where adults are not necessarily setting the best example, there has hardly been a public consensus on how to go about achieving. the next generations' moral im provement. This Article identifies the basic pedagogical conflict that underlies much of the dissension and examines its manifes tation as a tension within American constitutional law under the First Amendment's Free Speech Clause.8 Specifically, the Article examines the pedagogical dilemma over whether children's moral education, through elementary and secondary level curricula, 3 Kenneth L. Woodward, What Is Virlue?, NEWSWEEK, June 13, 1994, at 38. See infra notes 21-22, 24-54, 121-283 and accompanying text. 4 THOMAS LICKONA, EDUCATING FOR CHARACTER: How OUR SCHOOLS CAN TEACH RE SPECT AND RESPONSIBILITY 12 (1991); Howard Fineman, The Virluecrats, NEWSWEEK, June 13, 1994, at 31. 5 LICKONA, supra note 4, at 12. 6 ld. at 13. 7 Id. at 13-19. See also WILLIAM KILPATRICK, WHY JOHNNY CAN'T TELL RIGHT FROM WRONG: MORAL ILLITERACY AND THE CAsE FOR CHARACTER EDUCATION 14-15, 100 (1992) (describing the high incidence of serious crimes perpetrated in public high schools and a rise in teenage suicides, drug and alcohol use, and sexual activity); Melinda Henneberger with Michael Mamott, For Some, Youthful Courling Has Become a Game of Abuse, N.Y. TIMES, June 11, 1993, at AI, A14; Barbara Kantrowitz, Wild in the Streets, NEWSWEEK, Aug. 2, 1993, at 40 (describing a national epidemic of teen violence). 8 The Free Speech Clause states that "Congress shall make no law . abridging the freedom of speech." U.S. CONST. amend. I. HeinOnline -- 70 Notre Dame L. Rev. 770 1994-1995 1995] VALUES IN PUBLIC SCHOOLS 771 should be accomplished by inculcating selected values or, instead, by teaching processes of reasoning about values while avoiding the transmission of any definite moral content.9 The latter technique has generally been spared accusations of constitutional infirmityIo since it does not require that children consciously learn a pref erence for one value over another and, therefore, ostensibly leaves students free to believe in and propound whatever moral code they choose.ll Values inculcation, in contrast, does require that children learn a preference for one value over anotherI2 and has drawn criticism as potentially violating children's First Amendment rights to believe in and express their own views. IS For those, like this author, who conclude that values transmission is an indis pensable part of morals education at these stages of schooling, the legal question arises as to whether values inculcation can satisfy the mandate of the Free Speech Clause or whether the less peda gogically effective noninculcative approach, that conceives of the school as an unbiased "marketplace of ideas,"I4 is the only consti tutional means of moral education.I5 9 See infra notes 41-113 and accompanying text. 10 DAVID MOSHMAN, CHILDREN, EDUCATION, AND THE FIRST AMENDMENT: A PSYCHOLEGAL ANALYSIS 164-65 (1989). Cj. Stanley Ingber, Socialization, Indoctrination, or the "Pall of Orthodoxy": Value Training in the Public Schools, 1987 U. ILL. L. REv. 15, 66-67, 72- 73 (assuming that value neutral education is consistent with free speech principles and arguing that, therefore, schools should at least create the illusion that this type of ec!uca tion is being provided); Nat Stem, Challenging Ideological Exclusion of Curriculum Material: Rights of Students and Parents, 14 HARv. C.R-C.L. L. REv. 485, 487 (1979) (positing that the First Amendment tenet of maintaining society as a marketplace of ideas is applicable to the nation's classrooms). But see R George Wright, Free Speech Values, Public Schools, and the Role of Judicial Deference, 22 NEW ENG. L. REv. 59, 74 (1987) (suggesting that insofar as a value-neutral education or a marketplace of ideas school environment may leave students "without any coherent standpoint at all," such pedagogical techniques may be objectionable as resulting in student's "free speech capacity impairment"). 11 See infra notes 41-48, 50-51 and accompanying text. 12 See infra note 52 and accompanying text. 13 See infra notes 53-54, 161, 163-64, 170, 201-02 and accompanying text. 14 The "marketplace of ideas" metaphor became part of common legal discourse after it was invoked by Justice Holmes in his dissenting opinion in Abrams v. United States, 250 U.S. 616, 630 (1919) (Holmes, j., dissenting and joined by Brandeis, J.). See LAURENCE H. TRIBE, AMERICAN CONSI1TUTIONAL LAw § 12-1, at 785-86 (2d ed. 1988) (referring to Justice Holmes' Abrams dissent as the source of the metaphor in American constitutional jurisprudence). The phrase has frequently been used to describe a peda- ' gogical approach akin to values clarification or cognitive moral development, where aU relevant viewpoints are entertained with equal seriousness as part of the education pro cess. See infra text accompanying notes 41-48, 50-51. 15 See infra notes 114-361 and accompanying text. As a general matter, whenever gov ernment supports or promotes some speech but not other speech, the government's action "can be analyzed under equal protection as well as first amendment principles." 4 HeinOnline -- 70 Notre Dame L. Rev. 771 1994-1995 772 NOTRE DAME lAW REVIEW [Vol. 70:4 This Article takes the poslllon that counterposing the inculcative and noninculcative approaches as mutually exclusive and irreconcilable options creates a false and educationally detri mental dichotomy.16 Public elementary and secondary schools can teach value preferences that are essential to the formation of a moral human being and use reasoning as part of the inculcative process; moreover, the inculcative function need not preclude the schools from providing a marketplace of ideas in the sense of exposing children to a broad range of conceptual and factual material.l7 Although this pedagogical approach involves values in culcation in a significant way, the premise of this Article is that the inculcative elementl8 will not violate the Free Speech Clause RONALD D. ROTUNDA & JOHN E. NowAK, TREATISE ON CONSTITUTIONAL LAw: SUBSfANCE AND PROCEDURE § 20.11 (2d ed. 1992). The Fourteenth Amendment's Equal Protection Clause declares that "[n]o State shall ... deny to any person within its jurisdiction the equal protection of the laws." U.S. CONST. amend.

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