August 02, 2007... Avoiding the Basics.

The scope of the right to free expression is often misunderstood in the European Union (EU) and America (US) to mean that one has the protection by way of government to the right to express oneself as one demands at any time or place of one's choosing, whilst at the same time, it is generally accepted that government has the right to limit the right to free expression whenever it is for the good of society, is more convenient than to uphold the law, or fits in with some of-the-moment political agenda.

The majority of the problems associate with the right to free expression stem from a lack of differentiation between what is public and what is private. Examples abound ranging form Nick Griffin from the British National Party (BNP), Abu Hamza in and outside of the Finsbury Park Mosque, the British Airways (BA) baggage handler Nadia Eweida banned from wearing a discreetly worn cross when Muslims and Sikhs are permitted by law, to wear the trappings of their faith, etc. But I will limit this Op-Ed to the right to free expression as in the right to free speech in that very public of institutions: School.

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 him Justice 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.

As a comparative example, 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 the west's magazines all have the right to exercise freedom of 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, made possible because of the deliberate separation of church and state.

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.