June 25, 2002
Keynote Speech by the Honorable Judge David S. Tatel, United States Court of Appeals for the D.C. Circuit
30th Anniversary Conference Dinner
Chicago, Illinois
Speaking at the Spencer Foundation's thirtieth anniversary is a great honor. I have always admired the Foundation and its work, and I feel as though I've been involved almost since the beginning. As a youngSidley and Austin associate, only twenty-six years old, I remember Frank Bixby's enthusiasm about the new foundation he was creating for his client, Lyle Spencer. So I felt quite privileged that many years later over lunch at Duke Zeibert's, Pat Graham and Larry Cremin invited me to join the board, where I saw first-hand that Lyle Spencer's dream had become not just a reality, but also a national treasure. I thoroughly enjoyed the intellectual richness of board meetings. Who could ever forget JackGetzels classifying proposals as descriptive, predictive, prescriptive or prehensive, and then gently posing piercing questions that usually produced a better proposal, or, once in a while, unanimous rejection. And remember Larry Cremin, as he put it, "elucidating" proposals, invariably asking, "Will it contribute to a more profound understanding of the nature, purposes, and processes of education?" After becoming chair and joining Larry for dinner before Board meetings, I discovered something else about that wonderful man: He really knew his restaurants. In fact, it was Larry's love of fine food that led to the only bump in my otherwise smooth passage to Senate confirmation. It involved LesNomades, a quiet restaurant around the corner from the Foundation. Les Nomades used to be a private eating club that Larry loved and got his friends to join. Turns out that LesNomades was a club without by-laws, which only added to the FBI's suspicion that its membership policy might be discriminatory. Not until two special agents visited the restaurant, and not until Frank and his partners did some very careful explaining, were the G-men satisfied that Les Nomades would accept anyone with a dollar-the club's annual dues-and a recommendation from Larry Cremin. All this said, what I admire most about this Foundation is that no one-not Larry, not Jack, not one board member-ever seems to have forgotten that the Foundation is about neither the Board nor the staff, but rather that Spencer is all about the scholars whose work Lyle Spencer's generosity makes possible. This is indeed a very special place.
Before September 11, I had planned to speak about an issue that concerned me as a Spencer board member: advocate scholars. By this I mean scholars who become partisans-that's how David Cohen describes them in his recent book-in national policy debates. Writing op-ed columns and debating each other on talk shows, warring scholars declare with absolute certainty that their research vindicates their views of vouchers, the reading wars, teacher certification, increased funding on education quality, or whatever the issue may be. Scholars certainly have an important role to play in debates about education policy. But I believe that too many cross the line that distinguishes objective commentary from partisan advocacy, and that this transformation from scholar to advocate deprives policy makers, citizens, and from my perspective, the courts, of objective advice, undermines public confidence in the objectivity of scholars and their research, and leads funders-I hope including the Spencer Foundation-to question whether such scholars can reliably draw objective conclusions from valid data.
Six decades ago, the great Judge Learned Hand also worried about partisan scholars, whom he called "advocates, agitators, crusaders, and propagandists." Judge Hand declared, "You cannot raise the standard against oppression or leap into the breach to relieve injustice, and still keep an open mind to every disconcerting fact, or an open ear to the cold voice of doubt."" I am satisfied," the Judge warned, "that a scholar who tries to combine these parts sells his birthright for a mess of pottage."
Then came September 11 and partisan scholarship suddenly seemed less gripping. What did seem important was that although the horrors of September 11 demonstrated that the American people are deeply patriotic and eager to sacrifice for our country, that momentous tragedy also revealed that many Americans, including young school-age Americans, are profoundly ignorant-or for Spencer's purposes, profoundly uneducated-about values fundamental to the nation they seek to defend. Worse yet, and compounding the challenge to educators, many citizens, young and old, are doing and saying things in the name of patriotism that suggest they are acting on beliefs entirely antithetical to America's core values.
Newspapers reported quite a few examples from the world of education: In one high school, students and teachers tore down wall posters reading, "War Will Only Kill More." In another high school, a student was suspended when she tried to organize an anarchist club to disseminate her views against the bombing in Afghanistan and for wearing an anti-bombing message on her T-shirt. Colleges and universities, probably armed with their dubious speech codes, are disciplining and even attempting to fire professors for comments university officials believe are unpatriotic. When one college teacher called the September 11 hijackers "mass murderers," adding that "[t]he ultimate responsibility for the attacks lies with the rulers of this country, the capitalist ruling class[,]" the board of trustees "condemn[ed]" him as "seditious." Another college is trying to fire a pro-Palestinian professor, citing his disruptive impact on campus. At still another college, the commencement speaker, a distinguished newspaper publisher, was booed when she urged the preservation of First Amendment rights and heckled off the stage when she declared, "the Constitution makes it our right to challenge government policies." A conservative advocacy group called on a state university to fire four professors who had "criticized U.S. foreign policy;" state resources, the organization charged, were "aiding and abetting the Taliban." Finally, echoing the black lists of the 1950s and wielding a familiar tool of totalitarianism, another organization circulated a list of more than 100 scholars and students whose anti-war statements this organization deemed "unpatriotic."
Setting aside the rank anti-intellectualism of these attacks, as well as the fact that several of the condemned statements were themselves utter nonsense, those who seek either to suppress speech with which they disagree or to punish the speaker seem never to have learned the fundamental principles of American free speech. Unaware of the difference between vigorous, even sharp, debate, and words-much less actions-intended to suppress unpopular views, they seem not to know, as Justice Louis Brandeis explained decades ago, that "the remedy to be applied [for false speech] is more speech, not enforced silence." Nor do they seem to have learned, in the words of Justice Oliver Wendell Holmes, that the First Amendment protects free thought, "not free thought for those who agree with us, but freedom for the thought that we hate." The post-September 11 speech suppressors seem unaware that violating our core principles runs counter even to their own best interests. Justice Hugo Black explained this very clearly: " First Amendment [guarantees] must be accorded to ideas we hate or sooner or later they will be denied to the ideas we cherish."
September 11's aftermath reveals an equally disturbing lack of knowledge about another First Amendment value just as critical to American democracy: the separation of church and state embodied in the Establishment Clause. Again, examples from the field of education were easy to find. After participating in public prayers at a post-September 11 high school football game, one parent exclaimed that "non-Christian minorities should not limit the majority's expressions of faith." Urging the return of prayer to public schools as a response to terrorism, a state school board member declared that separation of church and state can be found nowhere in the Constitution. A southern governor advised schools to ignore the Supreme Court and sponsor prayer "at this very crisis moment in our history." Some public officials are urging, again as a response to September 11, the display of the Ten Commandments and other religious symbols in public schools.
As I read comments like these, I worry that the nation's schools are not preparing American citizens to participate intelligently in the fundamental debate about the relationship between government and religion. Many Americans seem unaware that when the Founding Fathers included the Establishment Clause in the First Amendment, they were reacting to centuries of state-sponsored religious oppression. These people seem not to realize that the Framers intended the Establishment Clause to protect not just religious minorities, but also religion itself. Justice Black put it this way: " [A] union of government and religion tends to destroy government and to degrade religion." Using words that I suspect appear rarely in textbooks, Justice Black explained the "Establishment Clause . . . stands as an expression of principle on the part of the Founders of our Constitution that religion is too personal, too sacred, too holy, to permit its ‘unhallowed perversion’ by a civil magistrate." Students have apparently not learned that the origins of the Establishment Clause can be found in the ideas of a deeply religious man, Roger Williams of Rhode Island, who saw separation of church and state as a "sturdy fence" to protect religion from the "corruptions" of civil government. Nor, I'm afraid, have they learned that the Establishment Clause, together with its First Amendment cousin, the Free Exercise Clause, allows the religious freedom and diversity that they enjoy to flourish in America at levels unmatched anywhere on the planet, or that it is this uniquely American ideal that the September 11 terrorists sought to destroy.
Finally, and most disturbing from the perspective of educators, these students, parents, politicians, board members, college administrators, and black-list writers have so little exposure to American and world history that they apparently don't understand that the First Amendment, with its religion and free speech clauses, has produced the most successful, vigorous, longest-lasting democracy in human history.
Of course, my perceptions about Americans' dismal knowledge of First Amendment values come mostly from the morning papers. But more reliable evidence suggests that I might not be far off. A Freedom Forum survey asked people over eighteen to list the freedoms the First Amendment protects: Forty-one percent were unable to identify free speech; eighty-four percent could not identify freedom of religion. Equally depressing are the latest NAEP results. Not only do they reveal a shocking lack of knowledge about the Bill of Rights, but the questions are surprisingly elementary, and not one of the sample questions I saw on NAEP's website even concerned the First Amendment. I've also seen studies showing, I'm sad to say, that teachers themselves know little about the First Amendment.
I realize that I am not the first to notice this disturbing state of affairs. Many political and educational leaders have expressed similar concerns, inspiring a growing attention to improved civic education, and some of the resulting programs are quite promising.
But I wonder whether there isn't also a need for the fundamental scholarly research that is the hallmark of the Spencer Foundation. Just as Spencer has sponsored frontier research into the teaching and learning of math and reading, so too it could devote some of its considerable resources to understanding the teaching and learning of bedrock principles of American democracy. How, for example, can schools go beyond teaching students to identify correct answers to shallow multiple choice questions and instead teach the lessons of Brandeis, Holmes and Black so that students thoroughly understand that the answer to unpopular speech is more speech, not enforced silence, and that separation of church and state is essential both to religious freedom and democracy itself?
As David McCullough explains in his wonderful biography, John Adams, believed that education was critical to the success of the new democracy. In fact, the Massachusetts Constitution, which Adams wrote in 1789, still declares that "[w]isdom and knowledge ..., diffused generally among the body of the people[,]" is "necessary for the preservation of their rights and liberties[.]" Lyle Spencer charged his new foundation with investigating ways in which education "broadly conceived" be improved. What could be more central to Lyle Spencer's mission than to explore the teaching and learning of values necessary, as Adams wrote, for the "preservation of [American] rights and liberties?"