Category Archives: First Amendment

Compelling Stories

The Iowa Department of Education released draft Social Studies standards last month. Written by the Social Studies Standards Writing Team between January and June 2016, the draft standards are in the process of being reviewed by the Social Studies Standards Review Team, which met for the first time on November 8th.

The draft standards are self-described as “a bold step toward a vision of social studies for all of Iowa’s students.” Bold or not, the draft standards offer an impoverished vision of social studies, driven by skills rather than content knowledge in the disciplines of history, geography, economics, and government.

Skills driven standards can’t go out of fashion fast enough, in my opinion. Content knowledge is power. The power to think, to create, to apply, to evaluate, to understand, and the power to acquire more knowledge within a particular discipline. [See David Didau, for example, on the impossibility of separating skills from knowledge.]

These standards fail to effectively outline much in the way of content knowledge students should acquire (more on this in a bit), but, also, having turned away from content driven standards, the Social Studies Studies Writing Team has apparently determined that the purpose of social studies education in Iowa is to develop the “civic competence” of students instead of building their content knowledge.

From the introduction of the draft standards:

Preparing students for the 21st century cannot be accomplished without a strong emphasis on the social studies. The founders of our country emphasized that the vitality and security of a democracy depends upon the education and willingness of its citizens to participate actively in society. This level of participation requires civic competence. In other words, it is imperative that our future generations gain an understanding of the core concepts of social studies. Life in the United States within our democratic system is constantly changing which creates varying social circumstances. As a result, citizens need to adapt to such changes in order to sustain vital democratic traditions. Meeting this need is the mission of the social studies.

As we work to carry on the ideals of the founders, we are compelled to revisit our fundamental beliefs and institutions and to construct new social contexts and relationships. The Iowa Core in Social Studies reflects the belief that the informed social studies student comprehends and applies to personal and public experiences the core content perspectives of the many academic fields of the social studies. Our entire social experiences, as well as our republic, are established upon the principles of individual citizenship. Therefore, it is necessary to pay attention to the education of those future citizens.

The Iowa Core for Social Studies is premised upon a rigorous and relevant K – 12 social studies program. Engaging students in the pursuit of active informed citizenship will require a broad range of understandings and skills. It will also require an articulated district curriculum which connects students to the social world through informed instructional experiences led by teachers who are committed to active civic participation. This represents a bold step toward a vision of social studies for all of Iowa’s students.

If the problem isn’t immediately apparent, let’s take a look at the inquiry anchor standard taking informed action. Under the draft standards, Kindergarten students are expected to “[t]ake group or individual action to help address local, regional, and/or global problems (e.g., letters to the editor, public service announcement, community service projects, and posters).”

While I agree with the writing team that education is important to prepare students for whatever civic engagement they choose to pursue, there is an important distinction to be made between teaching the relevant content of history, geography, economics, and government that could form the foundation of civic participation and directing that actual civic participation under the guise of developing civic competence.

Setting aside that Kindergarteners seem unlikely to possess the skills and knowledge to craft effective letters to the editor, we’re talking about state actors directing students to make political speech and take other political action. I can’t see any way for this to be done in a content and viewpoint neutral way. It seems like this should have been an obvious problem for a group purporting to carry on the work of the Founders, but apparently it wasn’t.

As an alternative, I’d like to see Iowa develop history-driven (chronological order, please) content standards (see, as an example, South Carolina’s 2005 social studies standards). Through the study of history, students have the opportunity to learn about the structure of our government institutions and the reasons why our government institutions are structured the way they are. In addition, our history is full of compelling stories of political action and movements that have shaped our nation–the Declaration of Independence, the Federalist Papers, the abolitionist movement, the temperance movement, the women’s suffrage movement, the labor movement, the civil rights movement, and more. These stories can help students build the foundational knowledge of civic competence while leaving them to make their own choices about their own political activity.

Unfortunately, the draft standards are weak on any specific historical content knowledge.  Compare Iowa’s draft 4th grade standards with South Carolina’s 2005 4th grade standards. Or Iowa’s draft 8th grade standards (US history) with South Carolina’s 2005 4th and 5th grade standards (US history). I’ll leave it to you to determine which standards are more likely to result in students prepared “to bring to bear the complex and sophisticated ways of thinking utilized by historians when thinking historically.”

Another mistake, I think, is the decision of the writing team to try to embed Iowa history throughout the K-12 standards. If Iowa history were assigned to a particular grade level, then the University of Iowa Press and IPTV have us covered for teaching materials.

All in all, I’d like to see the review team to recommend a substantial, content-driven rewrite of the draft standards but have no expectation that will happen.

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Iowa Supreme Court on Harassment

The Iowa Supreme Court recently decided a juvenile delinquency case, In the Interest of D.S., involving comments made by one student to another as they were getting off a school bus. The Iowa Supreme Court reversed the juvenile court, finding that there was insufficient evidence to support the finding that the juvenile committed harassment, without addressing the juvenile’s First Amendment claims.

Eugene Volokh discusses the case at the Washington Post (HT: @RyanGKoopmans) and offers a link to his law review article on the First Amendment and “harassment” statutes, which may be  of interest if the Iowa Legislature takes up anti-bullying legislation again in the upcoming session.

Legislative Update 3/18 [updated]

Update: Huffington Post reports that twenty high school students were suspended for retweeting gossip about a high school teacher. Is this where we are headed in Iowa? Do we want students to lose days of instructional time as punishment for off-campus speech? What other tweets about teachers or administrators could be punished under a policy like this?

Last Friday was the second funnel deadline. The House Democrats and House Republicans have produced two slightly different lists of education bills that survived the second funnel.

Both of the anti-bullying bills, HF 2409 and SF 2318, survived the funnel.

SF 2318, as amended by S-5060 [adopted by voice vote] and S-5073 [adopted by voice vote], passed [26-19] in the Senate today. S-5060, described during debate as “largely technical,” made a number of changes, including changing the requirement that training be incorporated into individual teacher and administrator professional development plans to school district or attendance center professional development plans, changing “research-based” to “research- and outcome-based”, and changing “safety and security” to strike “and security”. S-5060 also removed the 3.0 additional F.T.E. in the DE and grants the DE emergency rule-making authority to implement the new sections 256.100 Office of support and analysis for safe schools and 256.101 School climate improvement grant program. S-5073 creates an exemption to the varsity interscholastic athletic contest and competition ineligibility for students open enrolling into another district during the first ninety days of enrollment if the resident district determines that the student was subject to a founded incident of bullying or harassment as defined in 280.28 while attending school in the resident district.

Three other attempts to amend the bill failed. S-5074 [22-25] on quick inspection appears to be a strike and replace amendment to insert the language of the House bill. S-5075 and S-5076 [both ruled out of order] would have added training on free speech to training requirements. These two amendments were determined to be “unduly broad.”

Video of the Senate debate on Monday and Tuesday of this bill is available at the Iowa Legislature website.

Lobbyists for StudentsFirst and the Urban Education Network of Iowa are registered for the Senate bill, ACLU-IA is registered against (read about their concerns here), with ISEA, IASB, SAI, DE, and the AEAs registered as undecided.

The debate isn’t overly long, and had some interesting moments.

One concern with anti-bullying bills is that the definition of bullying can become overly broad. Consider the apparent definition of cyberbullying or online bullying from an article in today’s Globe and Mail, Teachers are low on the list students turn to when cyberbullied (H/T @SheilaSpeaking): “said or done something mean or cruel to someone online” or “that someone has said or done something mean or cruel to them online that made them feel badly.”

Sen. Hogg (D-Linn) recognized this over-broadness issue at one point, stating “lots of bad behavior isn’t bullying or harassment.” Unfortunately, there doesn’t seem to be a recognition that some bad behavior–mean, hurtful, or offensive speech–may, nonetheless, be constitutionally-protected. This is particularly concerning with regard to the expansion of school authority off school grounds; there are some permissible limitations on student speech at school, but it doesn’t follow that those same limitations can properly be placed on student speech away from school.

It is nice to think that everyone understands and respects the First Amendment implications and limitations in policing speech, but discussion around a local school board’s proposed public comment policy (see, for example, Chris’s post here) suggests this isn’t the case.

In arguing against an amendment that would have made investigation of alleged incidents of bullying or harassment occurring off school grounds discretionary, Sen. Hogg argued that granting immunity for failure to act created the wrong incentive, and stated something along the lines that the bill is giving them the tools, and expects them to act.

Missing from the debate were concerns that the bill might encourage school surveillance of student social media use or recognition that students can take steps–without school administrator involvement–to protect themselves on social media (see, for example, Twitter’s online abuse page and suggestions for helping targets of online abuse). In addition, schools can educate students about bullying issues and prevention without having expanded authority to investigate and discipline students for off-campus incidents.

Interestingly, as Iowa moves to make the DE and schools primarily responsible for bullying prevention and response efforts, the Globe and Mail reports that:

[The study] found that teachers are far down the list of people that students consider turning to for help when faced with online harassment. Parents come first, followed by other trusted adults and friends. In some cases, students said they would rather talk face to face with their own bullies, or simply ignore the problem and hope it resolves itself, than ask teachers to get involved. The researchers believe that highly punitive school policies are a factor.

Legislative Update 6/10

Governor Branstad is already talking about legislative priorities for next year.  KCRG reports he plans to hold another state summit on bullying and to try to pass anti-bullying legislation next year.

Coverage of anti-bullying legislation from this year’s session on this blog is available here and includes some issues raised by proposed legislation and links to discussions at other blogs.

The First Amendment issues are of particular interest to me, and I recommend taking the time to read Eugene Volokh’s blog post on the issue in the context of a Minnesota “bullying” bill and his written testimony before the U.S. Commission on Civil Rights if you haven’t already.

Details of this year’s Bullying Prevention Summit will apparently be announced mid-August.

Videos from last year’s summit are available here (try searching for bullying) including:

  • 24/7 Bullying in the Digital Age
  • Sick from Bullying
  • Leadership Makes the Difference

Sticks and Stones

Bullying seems to be a hot topic this year.  There are at least three bills in the House dealing with bullying: HF 143 (to create civil and criminal penalties for parents who fail to prevent students from engaging in harassment or bullying), HF 187, and HSB 196.  Of these three, only HSB 196 survived the first funnel deadline by being voted out of the House Education Committee on March 7th.

HSB 196 would separate the definitions of harassment (based on actual or perceived trait or characteristic of the student) and bullying (based on reasons other than an actual or perceived trait or characteristic of the student).  Would add social networking internet sites to the definition of “electronic”.  Would require school district policy to prohibit engaging in harassing and bullying behavior while in school vehicles or while using any school property or equipment.  Would encourage the use of evidence-based programs designed to eliminate harassment and bullying in schools.  Contains the following rule of construction:

a.  This section shall not be construed to permit restraint of or discipline for speech addressing legitimate matters of public concern, including speech that a reasonable person would consider an expression of political beliefs, religious beliefs, or other categories of expression protected by the United States and Iowa Constitutions, or that a reasonable person would not find substantially likely to constitute “harassment” or “bullying” as defined in this section.

The bill is also not to be construed to prevent schools from responding to or addressing an act or conduct that occurs outside of school, school vehicles, school functions or school-sponsored activity, or while using school property or equipment.  [Lobbyists from Iowa Department of Education, the Governor’s Office, and School Administrators of Iowa are registered in favor of this bill.]

Shane Vander Hart raises questions about the practical difficulties of granting a school district authority to intervene in out-of-school incidents at Iowans for Local Control.  Chris comments on freedom of association issues raised by the bill at A Blog About School.

This bill also raises First Amendment issues and would raise these issues with or without the explicit recognition of the First Amendment issues in the rules of construction.

Eugene Volokh, a professor of law at UCLA and blogger at The Volokh Conspiracy, has previously testified “about the First Amendment constraints on ‘bullying’ and ‘harassment’ in K-12 schools” and has revisited the issues in a recent blog post on a Minnesota “bullying” bill.  Professor Volokh’s written testimony before the U.S. Commission on Civil Rights is available here (see the written testimony for legal citations) and is the source of the following discussion and quotations attributed to Professor Volokh.

Professor Volokh notes that these types of laws can be overly broad in defining “bullying” or “harassment” to include constitutionally protected speech, that there is no “harassment exception” to the First Amendment free speech clause, and that vague rules can cause people to avoid otherwise constitutionally protected speech for fear that school administrators will find that the speech created a hostile or offensive environment.

Professor Volokh also notes that policies aimed at off-campus speech raise special constitutional difficulties:

It’s true that off-campus speech could cause on-campus disruption, and that off-campus Web sites can increasingly be seen at school, whether on library computers or on students’ cell-phones and iPads.  And it’s easy to sympathize with school officials’ desire to prevent disruption caused by speech, including off-campus speech.  But restrictions on on-campus speech can at least be defended on the grounds that the students remain free to speak elsewhere.  Restrictions that apply to all speech that could cause trouble at school flatly ban all such speech by students, and leave no alternative channels for students to speak.

Professor Volokh goes on to state:

Public high schools may not ban their students from telling jokes, even racist or anti-gay jokes, or expressing views about race relations, religions, cultures, sex roles, homosexuality, or what have you on their weblogs or Facebook pages.

What are schools to do, then?

The “sticks and stones” type cases are straightforward as Professor Volokh notes that “schools can and should punish violence and vandalism.”  (And, of course, off-campus violence and vandalism may be punishable under Iowa criminal law.)

The “words” cases are more difficult.  Certainly words can be very hurtful but they also raise First Amendment issues.  The First Amendment may limit actions the state or the school district may take to prohibit or punish speech, but it doesn’t render us entirely powerless to address bullying or harassment.

Professor Volokh notes that schools “can and should punish threats of violence,” can “‘prohibit the use of vulgar and offensive terms’ at school,” and can “restrict on-campus statements when there is evidence of a substantial risk that they will materially disrupt school activities.”

Schools also have the “more speech” option (see generally the Popehat blog on free speech issues, for example here [not for the easily offended, by the way]–the answer to speech we don’t like is more speech, not legal restraint on the speaker).  Professor Volokh suggests that “schools can and often should condemn rude and harmful speech, even if it is constitutionally protected.”  Even if the school can’t prohibit or punish unkind comments posted on Facebook or Twitter, the school can speak out against the posting of unkind comments.  Professor Volokh offers suggestions about how such condemnation might be done.

Schools might also want to reflect critically about how school policy choices might play a role in unkind behaviors.  For example, Chris at A Blog About School has written extensively about concerns about what children really learn from PBIS and other school practices (see, for example, here or here).  Katherine Beals at Out in Left Field has written about the potential pitfalls of group work for less socially-adept children (see, for example, here and here).

Finally, we don’t have to wait for legislatures or schools to take action.  Parents have an obvious role to play in engaging our own children to think about these issues and encouraging them to choose to be kind to and respectful of others.  And anyone can participate in “more speech”; see, for example, @westhighbros tweeting positive comments about members of their school community or this video made by a victim of bullying.

I’ll end with an obligatory disclaimer–this is not a legal opinion or legal advice–and a question: do you think that schools should have authority over conduct or speech that happens outside of school?