Is the district about to cut elementary orchestra and band?

Word has it that our school district’s administration is planning to propose cuts in elementary school band and orchestra programs—possibly eliminating them entirely, which would mean that kids wouldn’t start instruments until junior high. Some band or orchestra teachers were told that if they had other job offers, they should take them. Building administrators were reportedly told not to talk about the possible cuts. The issue may appear on the agenda of the April 8 school board meeting.

There are different theories about what would be prompting any cuts. Some think it’s because the legislature is (as usual) dawdling about setting the allowable growth rate. But as I understand it (and I almost certainly don’t), the allowable growth rate for next academic year has already been set—it’s the rate for fiscal year 2016 that’s still unresolved—so it’s not clear how that would drive any cuts in next year’s staffing. Others I spoke to thought it was because of the district’s $3.6 million budget shortfall. Others suggested that the district was concerned about kids being pulled out of class for their instrument lessons (oh, the instructional minutes!), or about the buildings being too crowded to have adequate space for the lessons.

My first thought was that this sounds like the Washington Monument syndrome—that any proposal would be a ploy either (1) to get people to make a stink to their legislators about allowable growth or (2) to get grudging acceptance of some other cut that the administration is actually after. Yet budget and allowable growth dramas are a regular occurrence, and this is the first time I’ve heard any talk of cuts like these. I’ve emailed the superintendent to ask about the issue.

For what it’s worth, I consider my kids’ orchestra lessons to have been one of the most valuable parts of their elementary school experience—and certainly a far better use of their time than the behavior assemblies and the countless hours of standardized testing. And will the district really cut orchestra and band while using class time for things like the “employability” training described here?
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Are the redistricting workshops a waste of time?

The school district here is in the early stages of redrawing the boundaries of the school attendance zones, partly because it plans to open several new schools, partly because growth patterns have led to overcrowding, and partly because the school board has enacted a diversity policy that sets goals for reducing concentrations of kids from low-income families in any one school. (The district uses free-and-reduced-price lunch (FRL) rates as a proxy for low-income status.) The district has scheduled several “community engagement” sessions to get community input on the redistricting. I recently spent two hours attending one of those sessions, focused on redrawing the elementary school boundaries in (roughly speaking) the southeast quadrant of the district.

About fifty or sixty people attended the session. Attendees were randomly assigned to small groups and given two exercises to do. Long story short: I did not find the exercises to be a useful way to give meaningful input to the district. Here are some of my impressions from the meeting.

“He will be a good employee for the job”

Iowa City parent Scott Samuelson has a great opinion piece in today’s Wall Street Journal on the real value of teaching the humanities. He cites research showing that undergraduate humanities majors earn more than those who major in professional or pre-professional fields, but argues:

Thinking of the value of the humanities predominately in terms of earnings and employment is to miss the point. America should strive to be a society of free people deeply engaged in “the pursuit of happiness,” not simply one of decently compensated and well-behaved employees.

Scott’s book, “The Deepest Human Life: An Introduction to Philosophy for Everyone,” comes out next week.

Meanwhile, our school district’s “Guidance” program had fourth- and sixth-graders learning job interview skills this week. In some classes, the kids played the parts of employer and job applicant and then evaluated the applicant’s interview skills. Was the applicant “clean, neat and well-groomed”? Did he have “Hands relaxed (not clenched)”? Did he “honor the end of the interview”? The interviewers then wrote overall comments, such as “He seems like a good employee.” Here’s an example:

(Click to enlarge.)

The Iowa Core, after all, has twenty-five pages of mandatory standards devoted to “employability skills.” See if you can find the Iowa Core sections devoted to philosophy or the arts.
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Five-acre field near City High to sell for $280,000

One of the primary rationales for the school board’s vote to close Hoover Elementary School was that City High, which is next to Hoover, is “landlocked.” “We can’t expand City without this,” the district asserted. “Adding Hoover alone is not even really enough.” To get that five-acre parcel of land for City, then, the district would have to close Hoover, even if that meant spending over ten million dollars to rebuild Hoover’s capacity somewhere else. The money to pay for that new construction will be part of the $119 million in bonding that the district plans to ask voters to approve.

Yet less than a thousand feet away from City, there was a five-acre undeveloped parcel for sale, called “Chadek’s Field.” The City of Iowa City is now on the verge of buying Chadek’s Field for just $280,000. That’s an awful lot less than ten million dollars.

If the district were genuinely concerned about City High being landlocked, and if it genuinely believed that even adding the Hoover property to City is not enough, why would it do nothing to pursue the Chadek property? Simply moving an athletic field from City to the Chadek land, just a block or two away, would have freed up considerable space at City. No matter how you feel about the Hoover closure, isn’t that a huge missed opportunity for the school district?

Fortunately, the land will go to the city, which plans to use it as a park, rather than to a developer, so the district could still try to work something out with the city to share the land. But since the district seems to have no interest in pursuing it, a big part of its rationale for closing Hoover is pretty hard to take seriously.
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Naming names

From the March 11, 2014 ICCSD board meeting. (Transcript below.)

The proposal to regulate public comment at school board meetings seems to be motivated in part by a discomfort with any criticism that is directed toward specific people. When a member of the public starts to criticize specific board members or administrators by name at a board meeting, it’s as if a taboo has been broken. General criticism is one thing, but naming names goes too far. It’s the quickest way to tell the troublemakers from the team players.

Our school board’s chair, for example, has regularly prefaced the public comment sessions of board meetings with this warning:

We ask that you refrain from making personal or disparaging remarks about staff, students, or any other district personnel. Please keep your comments focused on programs and policies, not people, or you will be asked to stop immediately.

This norm against naming names is probably great for preserving peace and harmony when you visit your relatives at the holidays, but it’s not a recipe for good government. Keep in mind that district “staff” includes the superintendent. On its face, the chair’s first sentence prohibits any disparaging comments about the job performance of the superintendent and other central administrators charged with running the school system—though it does not prohibit favorable comments about them. The chair’s second sentence says that you will be asked to stop immediately if your comments are focused on “people”—which, of course, describes not only staff but elected board members as well.

But policies and practices don’t just materialize out of thin air. People make them. Voters seldom get to vote on policies or practices; they vote for individual people who run for the school board, which in turn hires the superintendent. If voters can’t connect policies and practices to actual people, they have no way to hold anyone democratically accountable for what happens in the school system.

The video above is a good example. During the discussion of the proposed public comment policy, one board member asked, “Who wrote the policy?” Another board member explained that “it showed up” at a committee meeting. The rest of the group fell silent. Then one administrator said he didn’t remember writing it, though he remembered that the district’s lawyer somehow “looked at it” before it was drafted. Then another administrator said that he worked on it with the administrator who doesn’t remember writing it—all because “it was asked for.” Good luck figuring out who initiated that policy.

At the most recent board meeting, the chair did not recite the usual warning before the public comment session. I don’t know what accounts for the change, but it’s a step in the right direction.

A transcript of the video appears after the jump.

Fire!

In the ongoing debate about the proposal to regulate how members of the public can express themselves at school board meetings, several people have argued that free speech must have its limits. One example, from this comment thread:

As for freedom of speech, all freedoms have their limits. Freedom of speech doesn’t mean it’s okay to yell “fire” in a crowded theater. It’s also not okay to disrupt a public meeting by calling another citizen a whore.

The writer is right that there are limits and that the government can punish a person for yelling “fire” in a crowded theater. However, the writer’s conclusion does not follow from her premise, and does not appear to accurately reflect current law. I think many people would be surprised to know just how broad American protections of speech are.

The one example I’ll focus on here is from just three years ago. The plaintiff in the case was a man whose son was a Marine accidentally killed while serving in Iraq. During the son’s funeral, members of the Westboro Baptist Church picketed on a nearby public street. Members of the church believed that God was punishing the United States, and particularly its military, for its tolerance of homosexuality. Timing their protest to coincide with the funeral, they held up signs saying, among other things, “God Hates the USA/Thank God for 9/11,” “America is Doomed,” “Don’t Pray for the USA,” “Thank God for IEDs,” “Thank God for Dead Soldiers,” “God Hates Fags,” “You’re Going to Hell,” and “God Hates You.” The soldier’s father sued the church for intentional infliction of emotional distress.

It’s hard to imagine a case better designed to test one’s tolerance for offensive speech. Yet the Supreme Court held, by a vote of 8-1, that the First Amendment prohibited the state from imposing liability on the church for its protest. Here are some excerpts from the court’s opinion. (For readability, I’ve omitted the citations and added boldface for emphasis; you can read the full opinion here.)

“[S]peech on ‘matters of public concern’ ... is ‘at the heart of the First Amendment’s protection.’” The First Amendment reflects “a profound national commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open.” That is because “speech concerning public affairs is more than self-expression; it is the essence of self-government.” Accordingly, “speech on public issues occupies the highest rung of the hierarchy of First Amendment values, and is entitled to special protection.” . . .

Speech deals with matters of public concern when it can “be fairly considered as relating to any matter of political, social, or other concern to the community,” or when it “is a subject of legitimate news interest; that is, a subject of general interest and of value and concern to the public” . . . . The arguably “inappropriate or controversial character of a statement is irrelevant to the question whether it deals with a matter of public concern.”

Our opinion in Dun & Bradstreet, on the other hand, provides an example of speech of only private concern. In that case we held, as a general matter, that information about a particular individual’s credit report “concerns no public issue.” . . . To cite another example, we concluded in San Diego v. Roe that, in the context of a government employer regulating the speech of its employees, videos of an employee engaging in sexually explicit acts did not address a public concern; the videos “did nothing to inform the public about any aspect of the [employing agency’s] functioning or operation.” . . .

Given that Westboro’s speech was at a public place on a matter of public concern, that speech is entitled to “special protection” under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt. “If there is a bedrock principle underlying the First Amendment, it is that the government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.” Indeed, “the point of all speech protection... is to shield just those choices of content that in someone’s eyes are misguided, or even hurtful.” . . .

In a case such as this, a jury is “unlikely to be neutral with respect to the content of [the] speech,” posing “a real danger of becoming an instrument for the suppression of ... ‘vehement, caustic, and sometimes unpleasan[t]’” expression. Such a risk is unacceptable; “in public debate [we] must tolerate insulting, and even outrageous, speech in order to provide adequate ‘breathing space’ to the freedoms protected by the First Amendment.” . . .

Speech is powerful. It can stir people to action, move them to tears of both joy and sorrow, and—as it did here—inflict great pain. On the facts before us, we cannot react to that pain by punishing the speaker. As a Nation we have chosen a different course—to protect even hurtful speech on public issues to ensure that we do not stifle public debate. That choice requires that we shield Westboro from tort liability for its picketing in this case.

So suppose Person A, while in the audience at a school board meeting, were to call Person B, a speaker at the meeting, a “whore.” (I’m treating the example as a hypothetical, since I have no first-hand knowledge that it ever occurred.) Suppose Person B is a community activist who had recently run for school board and had already announced his intention to run in the next election. No one reasonably understands Person A to be suggesting that Person B is actually selling sexual services; it’s clear that Person A means that Person B has “sold out” in some way that’s relevant to school issues. Does Person A’s epithet count as speech on a matter of public concern?

If picket signs saying “God Hates Fags” and “You’re Going to Hell” near a military funeral pass the test, it’s awfully hard to see how calling a political candidate a “whore” could fail it.

Depending on the hypothetical, Person A’s comment could certainly run afoul of other permissible restrictions. For example, the board can insist that members of the audience not interrupt those who have the floor. But the board can’t single out for punishment only those interruptions that use harsh but protected speech on matters of public concern.

From some of the commentary online, you would think that speakers at our school board meetings were being routinely shouted down. That’s not at all true. It’s definitely true that at least one speaker has spoken with an intensity and a harshness that makes some people uncomfortable. It’s precisely that intensity and harshness that some people hope the proposed policy will ban; the policy’s defenders have repeatedly argued that it’s fine for people to express criticism as long as they do it “respectfully.” It’s hard to see how that rationale could be constitutional in light of cases like the one above. (And it’s not the only one.)

I consider myself lucky to live in a country with such broad protection of speech. People are free to disagree about that, of course. But, like it or not, First Amendment protections are very broad. When the board members make their decision about the proposed speech regulation policy, they should do so with their eyes open.
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Dorau, McGinness oppose public comment policy

Credit to school board members Tuyet Dorau and Jeff McGinness for opposing the proposal to regulate how members of the public can express themselves during the public comment sessions at board meetings. Dorau argued that the proposal was unnecessary and questioned whether it could be applied in a viewpoint-neutral way. McGinness, the only lawyer on the board, said that he is now convinced that the proposal is unconstitutional.

Four other board members were unwilling to give up on the policy, but agreed to send it back to committee for review. It appears that the board will ask its lawyer, for the first time (!), to review the legality of the proposal.

Maybe this episode is working its way toward a happy ending, though an awful lot of time and energy will have been spent on it. Although it’s discouraging that people aren’t more alert to civil liberties issues, the debate over this policy may well be a case study in the value of a relatively open approach to public comment. On this proposal—like on the visitor ID issue and the Martin Luther King Day issue—the abundance of dissent and criticism may ultimately result in better policy-making. At least it offers that chance.

The policy’s defenders argue that “uncivil” and “disrespectful” speakers deter other people from speaking. Yet there has certainly been no shortage of people speaking their minds at board meetings. What do those people have that the (unidentified) others don’t?

One awkward moment stood out at tonight’s meeting. Tuyet Dorau asked, “Who wrote the policy?” The chair of the committee that approved it, Brian Kirschling, could say only that “it showed up” at the committee meeting. No other board member would answer the question. The central administrators gave inconsistent responses and had no direct answer. For all the talk about “accountability” in education, funny how hard it is to find out who actually does what. Who triggered this lengthy detour into what is likely to be a dead end?
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More bogus labels from No Child Left Behind

The newspaper dutifully reported this week that two local elementary schools—both with a high percentage of low-income students—have been designated “persistently low-achieving schools” under No Child Left Behind, because of the standardized test scores of the students. This designation allows the schools to receive federal grant money if they take certain types of corrective action—all of them based on the assumption that there is something wrong with how the schools have been educating the kids.

The district has stated, wisely, that it will forgo the grant money, explaining that the schools are already making changes. I can’t say whether those changes are good or necessary, but I wish the district would address the federal government’s faulty logic more directly. The district, and its school board, should be shouting: This designation, and the test scores that it is based on, tell you nothing about the quality of the education at those schools. Schools and teachers aren’t to blame for the poverty in their attendance areas. That doesn’t mean the schools shouldn’t do their best with whatever kids they have—but No Child Left Behind’s labels are dishonest and its “improvement” schemes are fraudulent.
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Kids are more than just test scores

Credit to Mary Murphy for prompting an apparent change in our district’s practices on admitting kids to “gifted and talented” programs. Parents at some schools had been told that their kids’ admission to a gifted and talented class depended entirely on one or two standardized test scores—even if those tests had nothing to do with the subject matter of the class. Mary pointed out that state law puts several requirements on how schools admit kids to gifted and talented classes, including:

• Schools must base their admission decisions “on a comprehensive appraisal of the student.”

• Schools must consider both subjective and objective factors.

• Schools must consider multiple criteria, “with no single criteria [sic] eliminating a student from participation.”

• Schools must consider data “with direct relevance to program goals, objectives and activities.”

• If there are more openings than applicants, the school must select students “according to the extent to which they can benefit from the program.”

The district now appears to be bringing its practices into compliance with the state requirements. (See the superintendent’s responses after the jump.) State law or no state law, it would be hard to defend restricting gifted and talented classes solely to kids who score high on standardized tests.

Interestingly, judging from the superintendent’s email, the district appears to consider grades and grade point average to be “subjective” criteria—which implies that it considers standardized test scores to be the only objective measure of a student’s performance. This seems clearly wrong. The whole point of requiring “subjective” criteria is to ensure that the school engages in “comprehensive appraisal of the student,” rather than reducing the student to a number. Moreover, it’s discouraging to think that the district would see teachers as incapable of objectively grading a student’s performance in a class.

No criticism allowed?

Last night, a school board committee made it clear that the purpose of its proposed public comment policy is “to encourage the community to engage and feel they have the ability to do so without being attacked or criticized.” (See pages 3-4 here.) Yes, they want to regulate some people’s speech to ensure that other people don’t feel criticized.

This strikes me as reflecting a very peculiar understanding of what the First Amendment permits a governmental body to do. I guess I shouldn’t be surprised when I read reports like the one described here.
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“The pernicious effects of an artificially controlled public debate”

When I wrote last week about how our school board would be risking expensive litigation by approving a proposal to regulate speech at board meetings, I linked to a federal case from Virginia, Bach v. School Board of the City of Virginia Beach. That case can give you some idea of the kind of litigation the board’s policy could trigger.

Here’s what happened in Bach: A school board in Virginia passed a policy “designed to preserve decorum and order” at board meetings. One clause in the policy required speakers to:

Avoid references, statements, or conduct reasonably likely to result in disruption or undue delay in the orderly transaction of the business scheduled for consideration by the Board. This provision means and includes, but is not limited to, attacks or accusations regarding the honesty, character, integrity or other like personal attributes of any identified individual or group. Such comments are prohibited because, by virtue of their personal nature, character and/or manner of presentation, they would fairly call for an immediate response by the person or group so identified, thus delaying or disrupting consideration of agenda items scheduled for consideration by the Board.

A member of the public sued, arguing that the provision was an unconstitutional abridgement of free speech. He argued that the provision acted “as a filter to screen out any negative comments toward the current administration, while allowing their proponents to speak at will.” The board never actually enforced the policy against the man who sued. He argued that the policy was invalid on its face, regardless of how it was applied, because it would deter protected speech.

The court found the provision unconstitutional. Here are some excerpts from the case. (Again, for readability, I have omitted citations and added boldface for emphasis. You can read the full opinion here.)

The Supreme Court has long since warned about the pernicious effects of an artificially controlled public debate and have held that the First Amendment serves to prevent such manipulation. . . .

Two other school boards enacted policies similar to the contested provision in this case, and the courts reviewing these policies found both to be content-based restrictions. These policies contained different language, yet each had the same effect. Participants in an open session of a public meeting were permitted to praise the actions of school employees but were prohibited from making any critical or accusatory comments. The Baca Court, following the decision of the Leventhal Court, held that it is “difficult to imagine a more content-based prohibition on speech than [a] policy, which allows expression of two points of view (laudatory and neutral) while prohibiting a different point of view (negatively critical) on a particular subject matter.....” The Plaintiffs allege that the contested provision draws the same distinction on the content of the speech — favorable versus unfavorable — and under the reasoning in Baca and Leventhal, it cannot be considered content-neutral.

The Defendants [that is, the school board] explained that the contested provision only prohibits attacks that are targeted at school officials in their personal capacity. According to the Defendants’ interpretation of the contested provision, a speaker, therefore, is free to allege that a school official lied about spending school funds for personal use. That same speaker would be cut short, however, if the speaker called the school official a liar. The Defendants believe that this example demonstrates that the contested provision regulates the manner of the speech not its content.

The First Amendment affords the broadest protection to political expression in order to sustain the unfettered interchange of ideas to bring about political and social change and promote the will of the people. The Supreme Court has repeatedly explained that “it is a prized American privilege to speak one’s mind, although not always with perfect good taste, on all public institutions, and this opportunity is to be afforded for vigorous advocacy no less than abstract discussion.” This includes the ability to question the fitness of the community leaders, including the administrative leaders in a school system, “especially in a forum created specifically to foster discussion about a community’s school system.” The contested provision tests the boundaries of the fine distinction between content-based and content-neutral regulations. First Amendment scholars, judges, and attorneys could engage in endless debate over whether it discriminates against speech on the basis of its content by allowing general praise while silencing criticism. Fortunately, the Court need not engage in such a comprehensive analysis, for a policy that deters individuals from speaking out on an issue of public importance violates the First Amendment. The contested provision has that effect and for that reason is unconstitutional.

If the contested provision would have been written in the language of the Defendants’ argument at trial, the Court may have concluded that it is a content-neutral restriction on the manner of speech. The Defendants’ lengthy explanation, however, does not solve the constitutional issue before the Court. Potential speakers do not have the benefit of the Defendants’ scholarly research of the constitutional basis of the contested provision when attempting to determine if their comments are in conformity with Bylaw 1-48(B)(2). Their only guidance is the Bylaw itself, and thus, the contested provision must be examined on its face without regard to the Defendants’ technical interpretation of its proscriptions. Some citizens may share the Defendants’ reading of the contested provision and may feel free to criticize school officials’ conduct without threat of sanctions. Other citizens, however, may not appreciate the distinction drawn by the Defendants between attacking the conduct but not the individual. These citizens may see no distinction between stating, “the principal is a liar” and “the principal lied to us about spending the money.” According to the Defendants’ interpretation, the latter would be acceptable but the former forbidden by the contested provision. It is reasonable for these citizens to read the contested provision and conclude that most comments critical of school officials constitute an attack on their honesty, character, or integrity and are therefore improper subjects on which to speak. Accordingly, their concerns may not be shared with their fellow citizens, and the “robust public debate” the First Amendment seeks to foster will be thwarted.

There is no indication that the School Board acted in bad faith in enacting or enforcing this restriction. The video shown by the Defendants demonstrates that Mr. Bach was not silenced when he accused several officials by name of being involved in a conflict of interest. Yet the content of the contested provision may prevent many citizens from so speaking. . . . A policy that chills protected speech cannot stand. The Court FINDS that the contested provision in Bylaw 1-48 is unconstitutional as a prior restraint upon speech in a limited public forum.

In that case, the school board policy also required speakers to refrain from “obscenity, vulgarity, or other breach of respect.” That particular clause was not the subject of the lawsuit, so the court did not examine whether it, too, was impermissibly broad or vague. But this case, from the Supreme Court, would certainly support an argument for striking down that clause, too.

Legal questions are seldom 100% predictable. Bach, and the two similar cases it cites, are from different jurisdictions and are not binding on courts here; nor do they involve exactly the same clauses that appear in our district’s proposal. My point here is just that the district is asking for trouble and needless expense with the language in its policy. How much is it worth?
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Whose culture?

In the debate over our school board’s proposal to regulate how members of the public express themselves at board meetings, some board members argued that the policy is just an attempt to establish a particular culture of respect and decorum. I do think the board wants to enforce a particular culture, but that’s one reason I think the policy is a bad idea.

Not everyone shares the board majority’s view about what is appropriate decorum. There are all kinds of cultures of public participation out there, even in Iowa City. Some cultures (and some individuals) are freer with the “amens” and the audible expressions of disapproval. In some cultures, people are more comfortable with using strong language, or expressing strong emotion, when speaking publicly. That is not a reason to treat those cultures as somehow “wrong” or “impolite” or “threatening.”

Yes, there is a point at which the speakers and the audience could prevent the board from conducting business or could drown out other speakers. The proposed policy, though, goes way beyond what is necessary to prevent those problems. Some degree of audible audience reaction is to be expected at any public meeting; a board that wants to be inclusive should put up with it. It’s not for the board to tell the public what kind of culture to have.

There’s another “culture” at work here, too: the culture of bureaucracy and the establishment, which naturally values “positivity” because it favors the status quo. Loud applause for the school district’s accomplishments has never provoked any regulation. Loud booing, however, would almost certainly violate the policy’s requirement of “respect and decorum.” If that isn’t viewpoint discrimination, I don’t know what is.
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The value of “verbal tumult, discord, and even offensive utterance”

I wrote last week about our school board’s proposal to require members of the public who speak at board meetings to show “respect and decorum” and to prohibit them from making “abusive, harassing, bullying, discriminatory, or lewd” remarks. Defenders of the proposal have argued that some speakers have been too “caustic” and that the board should engage in “moderation” to ensure that other speakers are not “intimidated,” “to make sure all voices are heard.” (See Karen W.’s post here.)

The policy itself is framed almost entirely in terms of protecting the sensitivities of the listeners and the people who are spoken about, with many references to ensuring a “positive,” “safe,” “civil,” “dignified,” and “respectful” environment. The policy makes no mention of protecting the First Amendment rights of members of the public. Nor does it make any mention of the great value of dissent and criticism in the policy-making process. Nor does it acknowledge the inherent dangers of allowing a government body to decide what is or isn’t acceptable speech.

I want to quote a portion of a case called Cohen v. California, which the U.S. Supreme Court decided in 1971. I’m not arguing that this case applies directly to the board’s proposal; there are many potentially relevant distinctions between the two situations. Instead, I’m quoting the case because it does a particularly nice job of explaining the good reasons for tolerating political speech that makes people uncomfortable.

For readability, I’m omitting the court’s citations; you can read the full opinion here. I’ve also boldfaced some passages for emphasis.

This case may seem at first blush too inconsequential to find its way into our books, but the issue it presents is of no small constitutional significance.

Appellant Paul Robert Cohen was convicted [of violating a statute that] prohibits “maliciously and willfully disturb[ing] the peace or quiet of any neighborhood or person . . . by . . . offensive conduct. . . .” He was given 30 days’ imprisonment. The facts upon which his conviction rests are detailed in the opinion of the [lower court], as follows:

“On April 26, 1968, the defendant was observed in the Los Angeles County Courthouse in the corridor outside of division 20 of the municipal court wearing a jacket bearing the words ‘Fuck the Draft’ which were plainly visible. There were women and children present in the corridor. The defendant was arrested. The defendant testified that he wore the jacket knowing that the words were on the jacket as a means of informing the public of the depth of his feelings against the Vietnam War and the draft.” . . .

Admittedly, it is not so obvious that the First and Fourteenth Amendments must be taken to disable the States from punishing public utterance of this unseemly expletive in order to maintain what they regard as a suitable level of discourse within the body politic. We think, however, that examination and reflection will reveal the shortcomings of a contrary viewpoint.

At the outset, we cannot overemphasize that, in our judgment, most situations where the State has a justifiable interest in regulating speech will fall within one or more of the various established exceptions [such as obscenity and “fighting words”], discussed above but not applicable here, to the usual rule that governmental bodies may not prescribe the form or content of individual expression. Equally important to our conclusion is the constitutional backdrop against which our decision must be made. The constitutional right of free expression is powerful medicine in a society as diverse and populous as ours. It is designed and intended to remove governmental restraints from the arena of public discussion, putting the decision as to what views shall be voiced largely into the hands of each of us, in the hope that use of such freedom will ultimately produce a more capable citizenry and more perfect polity and in the belief that no other approach would comport with the premise of individual dignity and choice upon which our political system rests.

To many, the immediate consequence of this freedom may often appear to be only verbal tumult, discord, and even offensive utterance. These are, however, within established limits, in truth necessary side effects of the broader enduring values which the process of open debate permits us to achieve. That the air may at times seem filled with verbal cacophony is, in this sense not a sign of weakness but of strength. We cannot lose sight of the fact that, in what otherwise might seem a trifling and annoying instance of individual distasteful abuse of a privilege, these fundamental societal values are truly implicated. That is why “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons,” and why “so long as the means are peaceful, the communication need not meet standards of acceptability” . . . .

Against this perception of the constitutional policies involved, we discern certain more particularized considerations that peculiarly call for reversal of this conviction. First, the principle contended for by the State seems inherently boundless. How is one to distinguish this from any other offensive word? Surely the State has no right to cleanse public debate to the point where it is grammatically palatable to the most squeamish among us. Yet no readily ascertainable general principle exists for stopping short of that result were we to affirm the judgment below. For, while the particular four-letter word being litigated here is perhaps more distasteful than most others of its genre, it is nevertheless often true that one man’s vulgarity is another’s lyric. Indeed, we think it is largely because governmental officials cannot make principled distinctions in this area that the Constitution leaves matters of taste and style so largely to the individual.

Additionally, we cannot overlook the fact, because it is well illustrated by the episode involved here, that much linguistic expression serves a dual communicative function: it conveys not only ideas capable of relatively precise, detached explication, but otherwise inexpressible emotions as well. In fact, words are often chosen as much for their emotive as their cognitive force. We cannot sanction the view that the Constitution, while solicitous of the cognitive content of individual speech, has little or no regard for that emotive function which, practically speaking, may often be the more important element of the overall message sought to be communicated. Indeed, as Mr. Justice Frankfurter has said, “[o]ne of the prerogatives of American citizenship is the right to criticize public men and measures—and that means not only informed and responsible criticism but the freedom to speak foolishly and without moderation.”

Finally, and in the same vein, we cannot indulge the facile assumption that one can forbid particular words without also running a substantial risk of suppressing ideas in the process. Indeed, governments might soon seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views. We have been able, as noted above, to discern little social benefit that might result from running the risk of opening the door to such grave results.

It is, in sum, our judgment that, absent a more particularized and compelling reason for its actions, the State may not, consistently with the First and Fourteenth Amendments, make the simple public display here involved of this single four-letter expletive a criminal offense.

I don’t doubt that there is some conduct the board could permissibly prohibit. I do doubt the board’s ability to write a policy that singles that conduct out. I especially doubt the board’s ability to apply such a policy in a viewpoint-neutral fashion. But what worries me most is that the rationale for broad protection of speech, expressed so well in Cohen, seems to be lost on much of this board. (Board member Tuyet Dorau has been the notable exception.)

Schools are, as a rule, authoritarian and undemocratic institutions. It’s hard to have faith in their ability to prepare your kids for life in a democracy. Elected school boards, on the other hand, are the most democratic element of the system. It’s awfully disappointing, then, when the elected school board’s policy on public speakers makes no mention, and reflects no recognition, of the importance to democracy of free speech.
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