Stanley Fish, on his New York TimesSelect blog “Think Again” (subscription required), commented on Morse v. Frederick (better known as the “BONG HiTS 4 JESUS” case) earlier this month by stating, in part:
If I had a criticism of [Justice Clarence] Thomas, it would be that he does not go far enough [in his concurring opinion]. Not only do students not have first amendment rights, they do not have any rights: they don’t have the right to express themselves, or have their opinions considered, or have a voice in the evaluation of their teachers, or have their views of what should happen in the classroom taken into account. (And I intend this as a statement about college students as well as high-school students.) [Emphasis added.]
This statement and others compelled readers to post 439 comments in response. In turn, Fish wrote another post this weekend, titled “Democracy and Education,” defending his positions and directly answering a few of the more common questions and accusations. Early in his response, Fish states:
The point at issue is do citizens enjoy those rights [enumerated by the Constitution, specifically the right to assemble and speak freely] in any or all contexts, or do they enjoy them only in those contexts in which they are participating in the political process—voting, speaking in public forums, writing letters to the editor, etc.?
He continues his argument by discussing Supreme Court cases that address the limits an employer can place on the free speech of public employees. The principle, he writes, is clear, as described by Justice Steven Breyer in Garcetti v. Ceballos: “Judges must apply different protective presumptions in different contexts, scrutinizing government’s speech-related restrictions differently depending upon the general category of activity.” He concludes that employers may, legally, limit the First Amendment rights of their employees when they function in the institutional context.
Fish contends that this same principle applies to education. A teacher may restrict the First Amendment rights of his students in the interest of educating those students. “Again,” he writes, “the relevant distinction is between the duties and freedoms that belong to citizens when they are acting in the political sphere and the restrictions that may come along with employment or the condition of being a student.”
However, Fish leaves a few gaping holes in his argument. When is a college student “being a student?” Only when he is in the classroom? When he is in a school building? When he is on campus? The severity of the free speech restrictions varies drastically depending on the answer to this question, and, of course, Fish never explicitly gives an answer.
Also, he states early in his argument, “Of course nothing prevents employers, public or private, from granting First Amendment rights they could have lawfully withheld,” and says he believes the same in the educational context. What, then, would Fish say about the many schools that do make broad commitments to freedom of speech and academic freedom and then go on to restrict these rights? In my research for Spotlight, I have found that the overwhelming majority of schools, public and private, make at least some reference to the freedom of speech and inquiry that students will enjoy once enrolled. For example, Florida Atlantic University, the institution at which Fish currently teaches, makes these statements in the “Values” section of the school’s catalog: “Florida Atlantic University values an academic environment that facilitates intellectual growth through open and honest expression,” and “More specifically, the University is committed to… [p]romoting academic freedom and an atmosphere of free and open inquiry.”
We at FIRE believe that when a school makes a promise to a student, that school is morally and contractually bound to honor that promise. Interestingly, despite FAU’s clear promises, Professor Fish states he does not encourage his students to express themselves.
Beyond the holes and ambiguous terms, Fish directly contradicts his earlier post, in which he stated that students do not have a right to “a voice in the evaluation of their teachers.” In the current post, he writes that students “have the right to grieve if their teachers are unprepared, don’t show up, don’t give back papers, hijack the class for partisan purposes or otherwise fail to do the jobs they’re paid to do.” Is this “right to grieve” different from the “right to evaluate?”
Fish concludes his column by writing:
Many worried that if schools and universities were not going to practice democracy even when they taught it, where were students going to get the hands on training that would turn them into good democratic citizens? I haven’t the slightest idea, and I am not obligated to have one. It’s not my job.
Well, at FIRE, we do have an idea, and not simply because it’s our job. A college education is composed of more than what’s learned in the classroom, and this seems to be what Stanley Fish doesn’t consider. The freedoms to argue, ask questions, and find answers are as necessary to this education as any other part.