In the fall of 1996, I received a phone call that would change the way I think about both constitutional law and high school education in the United States. The call came from a group of students at Montgomery Blair High School in Montgomery County, Maryland, whose communications class produced a monthly news show, in debate format, called "Shades of Grey" for the school system's cable television station. Personnel at the station had e-mailed the students to tell them that the station would not broadcast their October show, a debate between two conservatives and two liberals about whether gays and lesbians should be allowed to marry. I suggested that they e-mail the station official in charge and ask what the station objected to about the debate. The station's program director sent the students an e-mail reply explaining the decision:We . . . felt that the gentleman who was a guest on the show [Dr. Frank Kameny] brought up the issue of religion and God in a very heated and controversial manner. . . . We . . . felt it would be inappropriate to air the program for that reason alone. (Personal communication, October 23, 1996)
From a constitutional standpoint, it was significant that an official admitted that the government had censored speech because of its content, viewpoint, and form of expression. Specifically, officials objected to a segment of the debate in which the student moderator asked the guests what motivated their different positions on the issue of same-sex marriage. One of the guests, Paula Govers of Concerned Women for America, introduced religion to the discussion:Govers: The Concerned Women for America believes that marriage is an institution sanctioned by God, licensed by the state, specifically between one man and one woman, and specifically for the purpose of procreation, and should be a covenant between two people that should be a lifetime commitment. (Channel 60, 1997)
This comment prompted Frank Kameny of the Gay and Lesbian Activists Alliance of Washington, D.C., and Judith Schaeffer of People for the American Way to respond:Kameny: Paula, you said that the First Amendment guarantees us freedom of religion, and we all have our own views of God. My God gave us homosexuality as a blessing to be enjoyed to its fullest. . . . My God sanctifies same-sex marriage even if your God does not, and we are both American citizens and both Gods deserve equal recognition from our—not your—our government.Schaeffer: That's exactly what the First Amendment requires. The government cannot legislate religious beliefs.Kameny: If you don't want to enter into a same-sex marriage, don't. But don't tell us just because your God doesn't sanctify it, my God is to be ignored.Govers: Dr. Kameny, you said that your God does sanctify these unions. So your religious beliefs would say it's a good thing, and our religious beliefs would say it's not. Why does your view get to trump ours?Kameny: It does not. If you believe that, you have an absolute right not to enter into a same-sex marriage.Kris Ardizonne [the legal director of the Eagle Forum]: But my taxpayer dollars go to pay for the institution of marriage. And we don't believe in it.Kameny: And so do the tax dollars of gay people go to pay for marriage as well. . . . (Channel 60, 1997)
The show's spirited debate remains the most thoughtful examination of the subject that I have seen. The communications class teacher, Christopher Lloyd, said that the show "dealt with a contemporary and controversial topic in a superb fashion" (personal communication, November 18, 1996). But, as a high-ranking school system official told The Washington Post, the show was simply "too hot. . . . It raises lots of issues that I'm not sure the mainstream is comfortable hearing about" (Twomey, 1996, p. B1).
I told the students that I would take their case on a pro bono basis. It seemed clear to me that the school system had censored the show because of the system's opposition to a speaker's religious views—in direct violation of the Supreme Court's decision in Rosenberger v. University of Virginia (1995). Striking down the University of Virginia's practice of subsidizing all student journals except religious ones, the Court in Rosenberger emphasized that speech on public affairs from a religious perspective enjoys the same constitutional protection as secular viewpoints. The Court stated that the government "must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction."
Although I thought that we should seek an injunction immediately from a federal court, the students preferred to fight the censorship from within the school system and hoped that the school superintendent or board of education would lift the ban. We prepared an administrative appeal and planned to rally the community.
The students' communications teacher was an ally from the beginning. Blair High School Principal Phil Gainous also championed the students' cause. We wrote a constitutional analysis of the controversy that the students used to win resolutions of support from PTAs, high school student councils across the county, elected officials, and such prominent Blair alumni as Washington Post reporter Carl Bernstein. Articles appeared in the Post, The Washington Times, and community newspapers, and full-blown debates were broadcast on National Public Radio. Copies of the censored tape were passed around the community. For many people, their initial anxiety over a show about same-sex marriage dissipated when they saw a bright student moderating a debate among well-mannered people who disagreed on an important public policy issue.
As expected, the superintendent's examiner decided against the students at the appeal hearing. When we appealed this decision to the board of education, hundreds of community members demonstrated their support for free speech generally and provocative journalistic speech in particular. I had a sense that, because of this mobilization of people and principle, the students had already won the case, and that whatever the outcome of the board vote, the experience had taught both the students and the community a powerful constitutional lesson. Eventually, the board voted 4 to 3 to reverse the superintendent's decision and to air the tape—not once, as originally scheduled, but six times. More people saw this episode of "Shades of Grey" than any other. The controversy led to a revision of the policy governing student expression on the system's cable station. Many of the students wrote their college application essays about the experience, and I learned two lessons that would change my own scholarly and teaching agenda as a professor of constitutional law.
First, I learned that Supreme Court decisions, constitutional law and history, and the principles of democratic government fascinate high school students. We are missing a tremendous opportunity to educate students about democratic society when we fail to teach them about the Supreme Court's treatment of controversies that have arisen in U.S. public schools. Indeed, much of the country's jurisprudence has been worked out in the context of the U.S. public school. Yet, the well-educated suburban Maryland students that I represented had never read or learned about the Court's decisions in Tinker v. Des Moines Independent Community School District (1969), Hazelwood School District v. Kuhlmeier (1988), Goss v. Lopez (1975), or Vernonia School District 47J v. Acton (1995), to mention just a few landmark cases. I resolved to write a book for and about high school students and how the Supreme Court has defined their rights and responsibilities.
Second, I learned from this controversy that constitutional law is not exclusively—or even primarily—a matter of what the Supreme Court decides. Most conflicts over rights are worked out in the ordinary course of institutional events and never become legal cases, much less Supreme Court cases (the Court decides to hear appeals in fewer than 1 percent of the cases brought to its attention). Thus, in a democratic society, constitutional law is not the esoteric province of lawyers and judges, but rather a field of contested meanings that defines significant social and institutional interactions.
The Marshall-Brennan Fellowship
To help students negotiate the difficult terrain of community, authority, and individual freedom in public education, Stephen Wermiel (law professor and late Supreme Court Justice William J. Brennan's biographer) and I launched the Marshall-Brennan Fellowship constitutional literacy project in the fall of 1999. The late justices Thurgood Marshall and William J. Brennan were champions of civil liberty, committed to teaching young U.S. citizens about their constitutional heritage. Today, the Marshall-Brennan Fellows are 60 upper-level law students at the Washington College of Law at American University who pair up to teach a constitutional literacy course to high school students in Washington, D.C., or Maryland public high schools four or five days a week.
The Fellows, chosen through a competitive process and enrolled in a weekly seminar at American University, teach students about cases that are immediately compelling to them, including cases that involve flag salutes, prayer in the schools, evolutionism and creationism, the Ten Commandments, locker searches, corporal punishment, race and sex discrimination, sexual harassment, and due process. The Fellows then teach a curriculum centered on democracy and the right to vote. They also lead a voter registration drive in which high school students register parents, friends, teachers, and other members of the community to vote; the school that registers the most voters receives recognition.
The goal of the Marshall-Brennan Fellowship project is to raise the constitutional consciousness of high school students and their teachers and principals. Thus, when conflicts arise in schools—and they inevitably do—about such issues as privacy, drug testing, grades, discipline, sexual harassment, expression, and censorship, the school community has a sturdy structure of constitutional values in place on which to base constructive resolutions. Last year, for example, officials at one of the high schools in which Fellows teach had decided to eliminate a student from competition for a scholastic honor because she was pregnant. The Fellows moved quickly to meet with the principal, and school leaders reversed the decision. In another school, Fellows led confused administrators through the twists and turns of what constitutes acceptable student prayer in the school setting. When such complex and dramatic public events occur as the 2000 U.S. presidential elections or the September 11, 2001, terrorist attacks in New York and Washington, D.C., the Fellows are there to discuss the events and their legal significance with students.
The Fellows take their students—many of whom come from low-income and single-parent homes—to hear oral arguments in the Supreme Court (a program launched by Marshall-Brennan volunteer Kenneth Starr), to attend law school classes, and sometimes to visit colleges. A robust community has arisen around the program to help students with college applications, summer jobs, and counseling.
The Fellows often feel the same frustration that many public school teachers experience. In our weekly seminar, for example, we have discussed the differences between schools in wealthy areas, where educational success seems to come naturally for many students, and those in poorer jurisdictions, where family resources, books, educational achievement, and hope are in short supply. We approach these issues in the schools through the lens of constitutional law—by reading the 1973 San Antonio Independent School District v. Rodriguez decision, for example, in which the U.S. Supreme Court determined that the U.S. Constitution establishes no fundamental right to education, much less to an equal education for students from both rich and poor districts. How have states, counties, and communities reacted to this watershed decision? What is its significance for students' daily lives? Does the U.S. Constitution need to be amended?
The Fellows sometimes deal with absenteeism, disciplinary issues, and classroom management problems. This uncomfortable reality is an eye-opener for many of the law students, who tend to be liberal-minded and intellectually focused on students' rights. The Fellows quickly learn the importance of basic order and decorum in the classroom, however, and come to see that freedom and community are not mutually exclusive but complementary and integrally connected.
Educators determined to get drugs and weapons out of school hallways may take a "zero tolerance" approach to issues relating to student dress and expression. As a result, some principals may be reluctant initially to have Fellows in their schools, thinking that law students who teach high school students about their rights may cause unrest. Most principals come around, however, when they observe that high school students who have studied the responsibilities that come with their rights often act more mature and respectful than those students who have never had opportunities to think systematically about what it means to be a member of a community. Fellows do not teach zero tolerance; they teach the tradition of tolerance itself.
At the annual William Karchmer Awards ceremony, the Marshall-Brennan Fellowship project gives prizes to local high school students for the best essays, creative arts presentations, and appellate moot court performances on constitutional themes. The program also has a national moot court and essay competition for students. At the same time, the program presents the Mary Beth Tinker Award to the person who has most courageously defended the rights of students. In 2000, the award went to Liz Armstrong, a Virginia high school teacher who was fired for objecting to a random search of her students in the middle of a science class. Mary Beth Tinker—a popular figure among many teenagers as a result of her role as a plaintiff in Tinker v. Des Moines (1969), suspended from school for wearing a black armband to protest the U.S. government's policy in Vietnam—attended the ceremony and has become closely involved with our work. We are exploring ways to expand the Marshall-Brennan Fellowship project nationwide.
Toward Constitutional Literacy
Public education should not be a spectator sport, and law schools have an obligation to help all students understand their constitutional rights and responsibilities. The Marshall-Brennan Fellowship project is one way that law schools and high schools can work together to improve students' constitutional literacy and revive a sense of the importance of democratic citizenship among young citizens of the United States.
