Harvey A. Silverglate
The Daily Record Newswire
The line in modern America that separates one person's truth from another's error has become exceptionally rigid, producing a shrillness in our public discourse and a consequent intolerance of dissent that is as disturbing as it is politically, socially and educationally disabling.
We're left with a terrible paradox: In an era when old institutions and verities are failing us, a streak of certitude and intransigence nonetheless runs through our leaders and fellow citizens. The First Amendment's condemnation of official orthodoxies is one avenue for attacking contemporary intellectual stagnation, as one of my current cases suggests.
On behalf of two high school teachers and a group of students, I argued a case before the 1st U.S. Circuit Court of Appeals on March 2 that involved the purging of resource materials for teaching human rights issues in the Massachusetts's public schools.
In my case, Griswold v. Driscoll, historical studies and documents initially included in a so-called "curricular guide" -- a collation of scholarly resources -- on the subject of human rights and genocides were expunged by the Department of Education, the very officials who initially compiled the materials and vetted them for educational suitability.
What caused this about-face? Political pressure, the record makes clear, was applied to remove all sources that disputed that the mutual slaughter of Armenians and Ottoman Muslims during World War I constituted a genocide of the Armenians as defined by the Genocide Convention of 1948 (as opposed to war crimes or perhaps crimes against humanity).
Historians and nations are divided on the question. Neither the United Nations nor Great Britain nor Sweden, for instance, endorses the Armenian genocide thesis. Nor does Middle East expert and author Professor Bernard Lewis of Princeton University, nor University of Massachusetts Professor Guenter Lewy. Massachusetts students are led to believe these contra-genocide voices do not exist.
My clients are asking the federal court to restore the materials unconstitutionally censored from the online collation, thereby rejecting the politically established limitations to this debate. The plaintiffs are equally adamant that pro-genocide viewpoints be retained.
Perhaps cases like this would not arise if our nation took seriously Justice Robert Jackson's holding in one of the U.S. Supreme Court's transformative declarations protecting intellectual freedom. In West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), Jehovah's Witnesses children and parents contested a state law requiring all students to pledge to the flag. Jehovah's Witnesses, although patriotic, deemed the flag a graven image. Pledging was idol worship.
Even as American blood was being spilled fighting fascism, and patriotism was the order of the day, Justice Jackson ruled on June 14, 1943 (Flag Day!) in favor of the Jehovah's Witnesses.
Jackson's opinion was based not so much on religious freedom grounds, but on the broader freedom of belief and conscience. "Struggles to coerce uniformity of sentiment in support of some end thought essential" have been waged by good and by evil men throughout history, Jackson wrote, and the battle over "what doctrine and whose program public educational officials shall compel youth to unite in embracing" is but one example. The "coercive elimination of dissent," he cautioned, soon devolves into "exterminating dissenters."
The First Amendment, Jackson wrote, "was designed to avoid these ends by avoiding these beginnings." As for those who claimed that the issue at hand was too important to allow dissent, Jackson noted that restricting disagreement only to trivial matters "would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order."
In Griswold, passions on both sides -- those who see the events in Ottoman Armenia as deliberate ethnic extermination, and those who view it as a tragic wartime conflict in which both sides suffered casualties -- continue to divide the Turkish and Armenian communities.
It is imperative to note, however, that the teachers and students whom I represent take no position on the genocide question; neither I nor the plaintiffs are historians of the late Ottoman Empire. Instead, we are seeking to allow students to weigh the scholarship on both sides and decide, much as Justice Jackson suggested is -- or should be -- the American way.
In 1998, the Massachusetts Legislature directed the Board of Education to "formulate recommendations on curricular materials on genocide and human rights issues" to be disseminated in public schools by the commissioner.
The legislation instructed the board to consult with genocide and human rights experts before putting together the resource materials. No school or teacher was required to use any of the materials collected; in this sense, the recommended materials were akin to a school library (although they eventually were made available online rather than on book shelves).
After a period of public input, the board adopted and the commissioner promulgated materials that had been assembled and vetted by curricular experts.
Three months later, however, then-Gov. A. Paul Cellucci and a state senator caused the commissioner to delete from the recommended materials any and all resources suggesting that the tragic killings of Ottoman Armenians by Ottoman Turkish forces might not have constituted genocide within the internationally accepted legal definition.
The contra-genocide materials had been included on their educational merit and approved by the Board of Education, and only after political pressure were they excised.
The case has been in litigation for nearly five years. Meanwhile, the collation of materials recommended by the state education commission gives teachers and students the blatantly false impression that there is no legitimate controversy, even while the fires between the two sides continue to rage in academic fora and political capitals throughout the world.
The larger implications of curtailing students' ability to freely inquire into historical controversies were convincingly explained by the late astrophysicist and author Carl Sagan at an ACLU of Illinois conference in the late-1980s.
In the laboratory, as in our legislatures and schools, Sagan explained, there can be no "forbidden thoughts," no ideas deemed so explosive or controversial to justify censorship over exposition, and no accepted orthodoxies kept in place by official authority. Only by surviving experimentation and skepticism does scientific fact and truth eventually emerge.
The First Amendment's guarantee of free speech, the great scientist and teacher pointed out, essentially follows the same pattern: No idea is entitled to widespread respect unless and until it has survived testing in the uninhibited and uncensored marketplace of ideas.
That marketplace, it seems, has become exceptionally brittle. As a result, many of our fellow citizens and political leaders have become increasingly confident of their own correctness and rectitude and correspondingly intolerant of the ideas of others. They have rejected the possibility that someone in the other camp just might be right about something.
We see this attitude in the increasingly dysfunctional U.S. Congress, in our shrill political campaigns, in an increasing number of irrationally partisan news media.
It might greatly benefit our civic life if texts such as Justice Jackson's magisterial Barnette opinion or Sagan's ACLU lecture were made available to our students at a young age.
Published: Tue, Mar 16, 2010
