Friday, August 13, 1999
National Press Club
NEW!! Governor's Columbine
Review Commission Report
JUDGE GEORGE NICHOLSON (Court of Appeals, State of California)
MR. TROY EID (Discussion Leader) (Chief Counsel to Colorado Governor
MS. ANN BEESON (National Legal Department, ACLU)
MR. MICHAEL HOROWITZ (Senior Fellow, Hudson Institute,Former General
MR. JAMES RAPP (Author/Editor-in-Chief, leading 7 volume treatise,
PROF. WILLIAM F. KILPATRICK (Boston College & Author Why
Johnny Can't Tell Right From Wrong)
CHIEF JUDGE J. HARVIE WILKINSON (U.S. Court of Appeals - 4th Circuit)
The following is an unedited transcript from the Federalist Societys
August 13, 1999 press conference entitled, "Did the Law Cause
P R O C E E D I N G S
JUDGE NICHOLSON: Good morning. Thank you for joining us today to
consider the question, "Did the law cause Columbine?"
My name is George Nicholson, I serve on the Court of Appeals of
the State of California in Sacramento, California. I have been a
trial and appellate judge for 12 years and in the law for 35. I
am the Chair of the Juvenile Justice Subcommittee of the Working
Group on Criminal Law and Procedure of The Federalist Society.
The Federalist Society has 25,000 members nationwide, and it has
50 chapters, one in each of the 50 chapters, among other local chapters.
The Federalist Society Internet web site is www.fed-soc.org. The
Federalist Society has its central charge the promotion of informed,
energetic and full debate on important legal issues of the day.
And, frankly, I think all of you will agree -- and if you don't
now, you will before the day is over, that the most important question
today, as students at Columbine prepare to return to school next
Monday, and as millions of students prepare to return to school
all across the nation, is this question -- "Did the law cause
Columbine?" -- and if it did, what we may do to improve that
Although they have yet to face this specific question, there are
a number of leaders throughout the country that have taken an energetic
stance and are in the process of trying to deal with the issue.
Governor George Patacki of New York has created a Task Force on
School Violence and will receive the report of that task force in
a few weeks. The Attorney General of Pennsylvania, Mike Fisher,
is going to conduct a forum in Pennsylvania, in Lancaster, next
month on this issue. The Governor of California, Gray Davis, will
receive a report from the California Task Force on School Violence
And for your purposes today and researching and pondering this
question yourself, and taking a position for and against, pro and
con on the issues that are raised this morning, and on the issues
that will be at this web site I am going to direct you to, I would
direct you specifically to the University of New Haven, School of
Public Safety, and its Dean, Tom Johnson. At that university there
is a web site which has a broad array of information on this question,
a variety of issues, a variety of resources, a great number of ideas.
And when I said a moment ago, why don't you, as you ponder the presentations
today, and when you go to the University of New Haven web site,
become the proponent and then the opponent of all the issues that
are discussed today and which appear on that web site.
I suggest to you, and I suggest to everyone in the country, that
if you take a position for and against, I like, I don't like, I
approve, I disapprove, and develop your own reasoning, you will
inform yourselves better and you will assist us in promoting debate
and discourse across the country.
All of us can develop a more and open mind about all of these issues,
and I think it is a very important matter to suggest to the powers
that be, in all of the domains, the courts, law enforcement, health
and human services, education and at the legislative and executive
level at every level throughout the country, that you really need
to think differently, you need to think better, and you need to
incorporate a variety of perspectives, and not just follow traditional
wisdom, conventional wisdom, and industry standard in addressing
The web site for the University of New Haven is http://www.newhaven.edu/victims/1.html.
For my part, as a judge, I think the courts can and should do more.
One specific example, juvenile, family, dependency and criminal
courts may at different times and in different ways deal with the
same family or individual or several members of a family. Those
courts do not effectively communicate and, on occasion, issue conflicting
orders about the same family or individual. So the point of that
is, the courts themselves and, in particular, those four courts
need to communicate better, more effectively and more fully in dealing
with these issues.
Frankly, they can't do that working alone. These courts must work
with health and human service, education, law enforcement and government
at all levels before they can effectively do their job, and, frankly,
before all of them can effectively do theirs as well.
For my part today, I issue a challenge to every judge in America,
at all levels, local, state and federal, to become informed about
issues pertinent to putting safety back in our schools and creating
safe havens for children everywhere in America, suburban, urban
and rural. Every judge should become fully informed and go to their
organizations, the American Judges Association, the Judicial Division
of the American Bar Association, the Federal Judicial Center, the
National Center for State Courts and the National Judicial College,
naming five, and figure out what it is they can do immediately to
become informed and fully, energetically involved.
Some judges have already become involved and you will find out
one of them this morning when the panel is presented. I would like
to name four others briefly. The Chief Judge of the Texas Court
of Criminal Appeals, Mike McCormick, has been involved in this and
has worked energetically to help. Judge Jeff Rosnick, a Circuit
Judge in Miami and a past President of the American Judges Association
is helping as well. Justice Tannenbaum, Mel Tannenbaum of the New
York Supreme Court, has been involved and he is past Chair of the
Judicial Division of the American Bar Association. And, finally,
in the California Supreme Court, Justice Stanley Mosk has been involved
for 20 years. Sometimes he is heard and sometimes he isn't, but
he is persistent in trying to energize the judiciary to become more
actively involved and helpful.
And now, ladies and gentlemen, for our distinguished panel addressing
the question of, "Did the law cause Columbine?," may I
begin my introducing our moderator. His name is Troy Eid. He is
an extraordinary, indeed, a remarkable young man. America will come
to know him in time, just as Colorado is beginning to know him now.
He is the Chief Counsel to Colorado Governor Bill Owens and President
of The Federalist Society in Colorado, the Lawyers Chapter.
He grew up in Jefferson County, Colorado and is a graduate of the
Jefferson County public schools. Troy's involvement in the Columbine
high school tragedy began early. Immediately after reports of gunfire
and explosions reached the public at 11:21 a.m. on April 20th of
this year, he accompanied Governor Bill Owens to nearby Leewood
Elementary School, the place where Columbine students and staff
were taken after evacuation from the high school.
Let me stop just a moment. For those of us that are old enough
to remember, everyone of us can recall where we were when President
Kennedy was shot. I know where I was, I remember the day vividly,
I can recount virtually every minute. I feel that most Americans
suffered, endured the same kind of agony when Columbine occurred.
I know I did and, frankly, I felt worse.
The President was a grown person, he had the Secret Service, he
had his family, and yet he still was victimized. Every child in
America has none of those resources. They haven't even begun their
lives and yet we, as adults, I think, frankly, owe it to them to
become their Secret Service, their guardians, their protectors and
try to figure out ways to instill again and to restore again safety
in our schools, ethically, honorably, fully and responsibly for
every child. And I think that is what the Governor of Colorado and
Troy Eid have been trying to do.
Troy assisted the Governor in maintaining constant electronic communications
with the National Guard and they were working, as you recall, with
the SWAT teams trying to recapture the school and restore safety
throughout its premises. He helped with the families and their victims
at Leewood and in the days thereafter.
I think one of the most touching and difficult issues that Troy
dealt with, and I know because I was a prosecutor for many years
and handled many murder cases and had to attend autopsies, he had
to coordinate and work with all the families in dealing with the
autopsies of all of these fallen children. And if you can think
of a heavier burden to place on a public official, working with
bereaved, grieved and mortally wounded families, who for the rest
of their lives are going to have to deal with this, I suggest you
try to think of it.
He is a member of the Governor's Task Force on Victim Support for
the Columbine tragedy. He is also a principal architect of the Columbine
Review Commission, an independent panel of experts which was announced
this week by the Governor of Colorado to help assist the overall
response of law enforcement, school officials and others to this
I think I would like to take just briefly a moment to say one thing
person, one short thing personal about Troy. He graduated from Stanford,
the University of Chicago Law School. He was an editor on the law
review, and he clerked for Judge Edith Adams of the U.S. Circuit
Court of Appeals for the 5th Circuit. Before returning to Colorado
to practice law and enter private business, his awards including
the Outstanding Young Coloradan of the Year Award from the Colorado
Jaycees and he was appointed to his current position earlier this
year by Governor Owens.
He is married to a remarkable young woman in her own right, Alison
Eid, who is a professor at the University of Colorado School of
Law. They live in Jefferson County and they live at the heart of
the tragedy of Columbine. He has been with it from day one.
And with Troy Eid and this distinguished panel, I invite you and
everyone in America to address the question, fully, comprehensively,
honorably and ethically -- "Did the law cause Columbine?"
MR. EID: Thank you, Justice Nicholson, I appreciate it, and I appreciate,
as I know the panel does, the many contributions to criminal justice
and juvenile violence prevention issues that you have made over
Before we begin, I think we ought to reflect for just a moment
on why we are here. One of the highest callings of the legal profession
is to try to improve the quality of justice and to strengthen respect
for the rule of law in our society. This sometimes demands that
we work with people from outside the bar as well as with fellow
attorneys to demystify the law, that is, to understand how court
cases and other forms of legal rules of decision are actually applied
We are about to embark on a legal discussion that will take us
into some very complicated, and I am afraid sometimes convoluted
areas of the law, but at all times, and no matter what the particular
opinions of the panelists, we share a great, and I would say solemn
purpose, to learn from Columbine and all these other terrible school
tragedies. They are tormenting our country, they are tearing at
our public soul.
Given the magnitude of this task, there may be times when the panelists
will disagree, and we know these are controversial issues. Fortunately
for us, each of the panelists has been selected by The Federalist
Society based not only on their substantive knowledge and expertise,
but on their demonstrated candor, civility and, yes, courage in
confronting these controversial matters. Our common goal must be
to channel their collective wisdom, and to take your questions and
channel your collective wisdom here in the audience, to achieve
a level of discourse that truly honors the students and faculty
and all those who have fallen in these terrible school tragedies.
If we keep their memory constantly before us, if we respect them
and each other's opinions, we shall not fail.
Before framing the issues and introducing the panelists, let me
quickly review some of the key facts about the Columbine tragedy
as we now know them today, as they have been publicly reported.
I will confine my comments to what has been in the actual news media
for, as you know, the criminal investigation is still proceeding.
While much of what I have to say is by now all too familiar to I
think everyone within the sound of my voice, focusing on Columbine
for its own sake and as a case study for mass violence in our schools
can help sharpen our understanding of how the law might shape and
be shaped by this and other public school tragedies.
This past spring in unincorporated Jefferson County in Colorado,
Eric Harris, age 18, and Dylan Klebold, age 17, were both seniors
at Columbine High School. They were associated with approximately
a dozen Columbine students known as the "Trench Coat Mafia."
At school Harris and Klebold openly admired Adolph Hitler and used
racial slurs and epithets. Harris reported wore a Nazi Cross to
school. Klebold was heard in his high school bowling class shouting
"Heil Hitler" after strikes.
This week the Denver Rocky Mountain News reported that Harris had
amassed a hate list of about 15 students who had angered him during
the months leading up to the tragedy. One of those students was
a senior in the school, a young man named Brooks Brown, who Harris
had also threatened to kill in a posting to the American Online
web page he maintained at his home computer.
Jefferson County Sheriff's Deputies investigated death threats
Harris made against Brown one year before the Columbine tragedy,
yet, by law, they apparently could not tell school officials about
these threats. A Colorado statute prevents police agencies from
disclosing information on investigations involving juveniles to
anyone other than law enforcement agencies, courts, the juvenile's
parents or attorney and the Colorado Human Services Department,
unless criminal charges have been filed. Even when charges are filed,
police can tell school officials only if those officials inquire
about the specific threats, and that is according to Rocky Mountain
News reports where they interviewed four county attorneys who advise
police on these matters.
Now, besides making threats, Harris and Klebold tried to buy guns,
according to friends and at least one gun dealer. While police were
reportedly unaware of those attempted firearms purchases at the
time, they did know that the pair had been arrested a year before
the tragedy on January 30th, 1998 when they broke into a van to
steal some tools. Harris and Klebold entered a juvenile diversion
program after that incident.
When the diversion officer looked at the pair's performance in
their community service and counseling programs, he described them
as "bright young men, likely to succeed." What the officer
didn't know was that Klebold's prom date had reportedly bought guns
at a gun show four months before in a so-called straw man purchase,
that is where an adult would purchase a handgun for someone is under
age, in violation, I might add, of federal law. He also didn't know
about Harris' threats to kill classmates and detonate bombs, which
were also posted on his web site.
Now, besides surfing the web, Harris and Klebold actually modified
homicidal video games on Harris' computer to make them even more
As Harris' private web postings reportedly became more violent,
so did he and Klebold become more outspoken about their increasingly
horrific views and fantasies. For their film class in school, Harris
and Klebold made four movies. In one, Harris bragged about his new
guns. In another, the pair attacked a house with toy guns, searching
rooms and pretending to fire at empty beds. In still another video,
Harris and Klebold are shown shooting real guns. One student remembers
a video in which the pair pretended to kill so-called jocks. These
are the athletes who reportedly picked on Harris and Klebold, who
sometimes tormented them, in violation, I might add, if true, of
Jefferson County's school policy and the Student Conduct Manual.
The jocks are also the people who Harris and Klebold frequently
spoke of killing while talking with their friends.
In other classes, the pair wrote poems about war, suicide and murder,
again, within a classroom setting.
On the anniversary of Adolph Hitler's birthday, April 20th of this
year, Harris and Klebold entered the school carrying firearms, knives
and pipe bombs. They also apparently cached other explosives in
the school and, as the investigation proceeds, we will determine,
of course, how that occurred. There was, as you have all read, a
propane tank bomb that, among other things, was positioned in the
The pair began firing guns and setting off bombs, executing a plan
they had been developing for more than one year. Before killing
themselves, Harris and Klebold murdered 13 people, 12 students,
one teacher. They wounded 23 more. The propane tank bomb miraculously
failed to explode. Had it done so, there is little doubt that the
damage in the school would have been far more severe than it was.
A web posting made by Harris perhaps captures his interpretation
of the rule of law in America. "I am the law," he declared,
"if you don't like, you die. If I don't like you, you die."
And so the question arises for our panelists, "Did the law
In absolute terms, of course, the answer has to be no. Ours is
a government of laws, not men and certainly not of one very disturbed
young man and his partner in mass murder. The law did not cause
Columbine unless we conceive of the law as some tyrannical edifice
straight out of a Franz Kafka novel, a mechanized killing contraption
that murders people indiscriminately, even its own executioners.
Yet there is reason to before that the law may have been an unwitting
accomplice, at least in some instances, in what appears to be the
rising tide of public school violence in America.
Now, I say "appears to be" because there is not consensus
among the commentators on whether school violence is actually increasing.
You may have seen a report from the U.S. Department of Education
this week that the number of students expelled for bringing weapons
to school, at least as reported by the states, has fallen by almost
one-third among the nation's 15,000 school districts. You may also
have seen a survey from the Horatio Alger Association which concludes
that public schools are among the safest places for young people
in our society.
I should add, however, that these statistics may not tell the full
story. There was a report in the papers in my home state of Colorado
yesterday that in our state, teenage boys killed other people at
a rate that increased 300 percent between 1980 and 1995. A lot of
those murders, by the way, occurred on or nearby school property.
We can all agree, no matter what the trends might show, that the
current level of school violence is totally unacceptable for this
country and, really, for all civilized people. So, the question
comes at us again, "How might laws and legal institutions affect
school violence at Columbine and other public schools, and what,
if anything, can we do about it as citizens and lawyers?"
Well, those are the question as they appear at 50,000 feet. Closer
to earth, there are several more specific lines of legal reasoning
which the panelists will discuss and which might bear on some of
these questions. The first is the appropriate scope of students'
First Amendment rights in public schools. In Tinker v. Des Moines
Independent School District, decided 30 years ago, the U.S. Supreme
Court famously declared that students do not shed their constitutional
rights to freedom of expression at the schoolhouse gate. The Court
in Tinker upheld students' rights to wear black arm bands in class
protesting the Vietnam War on the grounds that such speech would
not materially disrupt classroom work or invade other students'
Now, before Tinker, courts had nearly always deferred to school
boards and state legislatures about public school learning experiences.
In a memorable dissent, Justice Hugo Black predicted dire consequences
from the majority's decision. He said, "One does not need to
be a prophet or the son of a prophet to know that after the Court's
holding today, some students will be ready, able and willing to
defy their teachers on practically all orders."
Looking back over three decades, to what extent have Tinker and
later First Amendment cases, Bethel v. Fraiser, Hazel v. Culmeyer,
affected school discipline? More generally, should students' First
Amendment rights be curbed or should they be expanded?
A second line of court decisions relates to the due process rights
of students facing expulsion or suspension. A pair of 1975 U.S.
Supreme Court decisions, Goss v. Lopez, and Wood v. Strickland,
generally extended due process rights for students facing disciplinary
proceedings and made school officials personally liable in some
cases for failing to respect those rights. Meanwhile, Congress,
over the years, and most recently in 1994, has begun to put pressure
on the states. They have mandated that in specific cases, states
must take disciplinary steps, mandatory suspensions or expulsions
if a student has committed such an act and if the state is receiving
To what extend should due process considerations give way to the
discretion of school officials who are more accountable to elected
school boards and, ultimately, to the voters than are, of course,
some other officials? Are the courts the most appropriate institutions
to oversee this process, or does the encroachment of federal oversights
of local school disciplinary decisions, through these kinds of state
mandates and other pressure, require increased due process protection
Finally, there is yet a third line of inquiry. It has to do with
what we can reasonably expect of public schools, given the state
of our culture and given our increasingly secularized society. A
hundred and fifty years ago, Horace Mann envisioned the public schools
as the transmitters of common community values. Those values were
often taken for granted in an era where the authority of parents,
teachers and principals was widely understood to come from God,
that is, from their spiritual beliefs and moral values that in society
were widely shared.
In today's more secular society, a far greater emphasis is placed
on respecting individuals' rights and differences. Has this heightened
respect for such differences by our legal system jeopardized the
public schools' ability to teach shared values, or is it that the
schools alienate students by not adequately respecting their diversity?
The code of conduct for the Jefferson County public schools talks
specifically about students' right to assemble and to express themselves,
including wearing any mode of dress or grooming style that does
not substantially disrupt school activities. Now, should a teacher
or principal need to think twice before telling a student don't
wear a trench coat or combat pants to class? Or, in the wake of
Columbine, as Coloradans learned this week, we now the district
requiring all public high school students in Jefferson County to
wear ID badges to school at all times. Is that an infringement on
these students' rights? And that is to say, is that the appropriate
way to treat individuals in an academic setting?
And then finally, the increasingly secuarlization of our public
schools leads to an expanded role for government officials into
roles that were traditionally performed by private actors. Let me
give you an example, it is the mental health industry in this country.
There were fewer than 500 mental health professionals in the public
schools in the 1960s. By some estimates, there may be more than
30,000 today. Traditionally, we think of our high school guidance
counselors, they are the folks who help tell us what classes to
take and, depending on who you are, where you go to school, what
college you might go to or what your future might be.
Today there are calls around the country, including in Colorado,
for psychiatrists, a psychologist or a social worker in every public
high school and middle school in our states and a mandate that that
occur regardless perhaps of the decisions of the local school boards.
Do such decisions intrude on students' and parents' decision-making?
How do they affect our religious and civic institutions and the
roles they have traditionally played?
And one final point about mental health, these professionals might
actually find some problems with students, particularly as they
start to look. How do they share that information? That is to say,
should they be permitted to disclose otherwise confidential information
about individual students, particularly as their methods for assessing
problems are more and more refined and targeted to predict possibly
future behavior? Should they share this information with law enforcement,
with prospective colleges or employers? What should those limits
And so we are blessed by a distinguished panel of experts who will
speak on these and other issues. Now, each panelist will make a
brief opening statement, followed by questions from the moderator,
and then to encourage brevity, we will push on into questions from
the audience. And I am going to start by going through all the panelists
and then we will start with the first.
Judge J. Harvie Wilkinson, III, is the Chief Justice of the United
States Court of Appeals for the Fourth Circuit. He is a graduate
of Yale, Phi Beta Kappa, magna cum laude, and the University of
Virginia Law School, where he was a member of the law review and
the Order of the Coif. He clerked in the U.S. Supreme Court for
Justice Lewis Powell. He has taught extensively and was a professor
at the University of Virginia Law School.
He has also been a newspaper editor. He was Deputy Assistant Attorney
General in the Civil Rights Division during the Reagan Administration.
He was appointed to the 4th Circuit by President Reagan in 1984
and he was named Chief Judge in 1996.
Ann Beeson is Staff Counsel to the American Civil Liberties Union
at their national headquarters in New York City. She works as a
litigator to protect rights guaranteed by the First Amendment. She
was a primary architect of the landmark ACLU v. Reno case in which
the U.S. Supreme Court declared the Communications Decency Act unconstitutional,
that was back in June of '97.
She is now lead counsel in ACLU v. Reno II, the challenge to the
Child Online Protection Act, Congress' second attempt to impose
criminal sanctions on protected Internet speech. That is on appeal
to the 3rd Circuit.
Ms. Beeson also continues to seek injunctions against state laws
that criminalize online speech and against policies that require
adults to use blocking software in public libraries. In addition,
Ms. Beeson has fought what she calls "censorship" by schools
and universities, and she will talk about some of these cases.
She has assisted ACLU offices around the country in dealing with
what is sometimes called the Columbine backlash. The ACLU successfully
represented students in Ohio who were suspended for contributing
to a Gothic-themed web site. They represented a student in Virginia
who was suspended for having blue hair. They have got other suits
that are pending.
The L.A. Times named Ms. Beeson one of six stars of the Internet
for her work in safeguarding free speech in cyberspace.
On my left, in the middle, we will proceed then to Michael J. Horowitz.
Michael is now is the Senior Fellow and Director of the Project
on Civil Justice Reform in International Religious Liberty at the
Hudson Institute. He served in the Reagan Administration as General
Counsel for the Office of Management and Budget, and he was an Associate
Professor of Law at the University of Mississippi. He has been in
private law practice since 1967. He earned his L.L.B. from Yale
Mr. Horowitz has been an Adjunct Professor at Georgetown Law School,
Special Counsel for the Committee on the Judicial Branch of the
Judicial Conference of the United States, and Special Counsel to
the National Counsel of Young Israel.
He served as Chairman of President Reagan's Domestic Policy Council
on Federalism and was Co-Chair of the Cabinet Council's Working
Group on Legal and Tort Reform. He has also worked extensively internationally.
Then on my immediate left, we will proceed to Professor William
Kilpatrick. Professor Kilpatrick is a professor in the School of
Education at Boston College. He teaches courses in moral education
and adolescent psychology. You may have seen and read his best-selling
book that came out in 1992, from Simon & Schuster, Why Johnny
Can't Tell Right From Wrong. He is the author of several other
books as well. One in particular that I commend to all of you, a
fascinating book, The Emperor's New Clothes, which was published
by Crossway in 1985. There is a chapter in there, "Why the
Secular Needs the Sacred" -- "Why the Secular Needs the
Sacred," that is, the role of secular versus moral, religious
institutions and the proper balance.
He has appeared in numerous publications. He lectures frequently
on television and radio throughout the country.
And the finally, James A. Rapp, he is on the very left here, or
on the right from your side. James A. Rapp is one of the United
States' foremost authors in the area of law and education. His works
include a seven volume treatise, Education Law, published
by Matthew Bender & Company. He has published on numerous issues
ranging from school crime and violence, student protection, record
sharing and victims' litigation.
He has worked extensively with Justice George Nicholson, who you
heard from a few minutes ago, and then also with the late Frank
Carrington, who, as many of you know, is widely regarded as the
founder of the Crime Victims Rights movement in this country.
The father of three daughters, he takes a personal interest in
education. He is a strong advocate of safe schools, effective discipline,
record sharing and the critical role of parents in their children's
He is a consultant to the National School Safety Center and also
serves as a hearing officer for teacher employment cases. And he,
I might add, has a thriving law practice in Quincy, Illinois.
Chief Judge Wilkinson, I would like to ask you to make your statement,
and then as we move through the panel, each statement will be between
five and ten minutes, and then we will start with questions. Thank
CHIEF JUDGE WILKINSON: Thank you very much, Troy. It is a great
pleasure to be with you this morning, and I want to commend The
Federalist Society for convening us to discuss a topic which is
so critical to the daily lives of parents, teachers and children.
The tragic and devastating events at Columbine High have brought
renewed attention to the problem of order in the schools. I think
we would all agree that children are entitled to order in the schools
every bit as much as we adults are entitled to order in our streets,
because without a basic framework of order, there can be no quality
of life and the schools will become not gateways of opportunity,
but scenes of despair.
Despite the recent headlines, the problem of school violence is
nothing new. Several years ago, The Federalist Society and Manhattan
Institute sponsored another symposium on this very subject. Presentations
there were published in the Michigan Law and Policy Review. After
the tragic events of this past spring, I took the occasion to review
my remarks at that earlier symposium and I concluded that, sadly,
the passage of years had only moved me to reiterate those earlier
The causes of social ill are rarely simple. Certainly, the law
cannot provide parental guidance, and it has only a limited effect
on the promotion of social values. So many different things have
contributed to the problems besetting public education, and it is
unfair to single out the law and the courts as the primary culprits.
We must acknowledge, however, the long trends toward providing greater
procedural protections for the young.
It probably all began in 1967 with the case of N. Ray Gault, which
revolutionized due process in juvenile court proceedings. That decision
had a profound impact upon student rights and school discipline.
And as Troy has said, in Tinker v. Des Moines Independent School
-- Community School District, secondary school students were held
to have First Amendment rights to wear black arm bands. In Goss
v. Lopez, students were provided with the right of notice and a
hearing before being subject to even a short disciplinary suspension.
And in Wood v. Strickland, at the same time students were being
afforded greater rights, the rights of teachers and principals were
being restricted because school officials in Wood v. Strickland
were afforded only qualified immunity from suit under Section 1983.
Now, it is true that subsequent Supreme Court decisions declined
to extend the Eighth Amendment to disciplinary corporal punishment
in public schools, and declined to mandate hearings on academic,
as opposed to disciplinary suspensions, and declined to extend the
full protections of the Fourth Amendment warrant clause to searches
of students on school premises.
But even this latter set of cases only underscored the increasing
prevalence of educational litigation of all types and varieties,
much of it brought on behalf of expanding the rights of students
who attended public schools. Some of the most recent Supreme Court
decisions have had an unusual twist. In Davis v. Monroe County Board
of Education, decided just last term, the Supreme Court recognized
a private right of action for damages under Title 9 in cases of
student on student harassment, where the School Board had been deliberately
indifferent to it.
Unlike some of the earlier cases I have mentioned, the right of
action belonged in Davis to the victim, not to the perpetrator of
objectionable behavior. Nonetheless, as Justice Kennedy noted in
dissent, the effect of that decision was to bring the review of
yet more school disciplinary discussions into federal court.
So we are now in a society which freely and instinctively litigates
routine public school decisions in the federal judiciary. Litigation
is what you and I in this room probably do for a living. We tend
not to be traumatized by it because we live with the uncertainties
and inconveniences and anxieties associated with the courtroom every
But litigation is not what school teachers and principals, and
school board members do, or desire to do for a living. Why did they
go into education? Not to litigate. They went into education because
they wished to devote their lives as professional educators to improving
the minds and broadening the horizons of their students. They did
not plan to spend their time fending off the same students either
in the hallway or in court.
Time spent in court is time out of the classroom. Answering depositions
educates no one. A teacher or principal probably wants to be in
court about as much as you or I want to be in the hospital. They
would do anything to avoid it, and the most effective way of avoiding
it is to become risk-averse. It is all very well and good to say
that qualified immunity will protect school officials in all but
the most outrageous cases. Litigation, however, is by its very nature
unpredictable, and to suspend even an unruly student these days
is to risk being sued.
One doesn't generally get sued under Section 1983, however, for
being passive and doing nothing. A course of constant inaction may
detract from the general quality of the educational environment,
it may diminish the public interest, but it spares the concerned
school principal the prospect of an angry plaintiff in court.
Much of the impetus behind the student rights revolution has stemmed
from a fear of the arbitrary exercise of discretion. School officials,
it is argued, are apt to make mistakes and we worry that maybe the
wrong person, the wrong student will be punished. Due process as
enforced in federal court is seen as a way to ensure an informed,
fair, reflective decision. It may have these virtues, but I wonder,
in the school setting, if the most vigorous proponents of student
rights have really paused to tally the costs.
The exercise of authority inevitably involves the exercise of discretion.
A world in which educational decision-makers have been stripped
of discretion will be a world bereft of necessary hierarchy and
devoid of the essential ingredients of public order. Inevitably,
in the course of daily life, every one of us must exercise discretion.
Lawyers must have discretion. Business executives must have discretion.
Plumbers and construction workers, and hair designers must exercise
discretion. And a society which lives in complete distrust of discretion
is a society which courts social paralysis.
One place where discretion must be exercised is in the upbringing
of the young. We understand that parents and teachers are imbued
as a general matter with a certain fund of life experience, knowledge
and maturity. If it were otherwise, why would we have committed
children to their charge? So when we say we need due process to
curtail discretion, we fail to understand that discretion in the
training of youth is both socially indispensable and pedagogically
I wonder really how great is the risk that principals and teachers
would abuse their discretion. I remember one summer when I taught
a course in remedial English to students in a public junior high
school. It was not difficult at all to learn quickly who in the
class wanted to learn, who would respond to patient, individual
attention, and who was absolutely intent on being disruptive.
Teachers, by and large, know who the troublemakers are. If anything,
teachers give students chance after chance to learn and to cooperate.
Sometimes, however, infractions simply have to be punished for teachers
to maintain respect, and to open up the prospect of judicial hindsight
for all varieties of disciplinary action is to divest teachers and
principals of their ability to take the steps necessary for classroom
instruction to survive.
It is true, of course, that discretion in society is always bounded
by rules. Is it necessary, however, for the rules in local schools
to be established by expansion of federal statutory authority and
constitutional law? School authorities already labor under layer
upon layer upon layer of rules. School principals hand down rules.
School boards have rules. State Boards of Education have rules.
State laws both civil and criminal provide rules. The real question
is, when and where shall the rulemakers desist?
School communities will not be bereft of due process in the absence
of federal judicial oversight. Communities themselves are not indifferent
to fair play. School principals will not turn a deaf ear to a student
with a side of the story to tell. Parents often have a way of giving
schools an earful if a child has been unjustly treated, or even
if she has not. Forsaking federal court as a forum does not mean
embracing educational chaos. It involves rather a restoration of
faith in democracy and all its richness.
Whenever we constitutionalize a public school decision such as
student discipline or student First Amendment rights, we do two
things. First, we remove it from the hands of the democratic process
and place it in the laps of the federal court. A Constitution of
pervasive reach will become an instrument of pervasive disenfranchisement.
The second thing we do by constitutionalizing a problem is to indicate
a preference for centralized rules and solutions over disparate
state and local prescriptions. The degree to which we constitutionalize
our differences of opinion has been hotly debated in the world of
substantive due process, but what I would suggest to you is that
the balance between constitutionalization and democratization is
no less lively an issue where procedural due process is concerned,
and the school discipline cases, I would suggest are an area in
which the dangers of constitutionalization are paramount.
I trust I need not belabor the point that too many constitutional
obligations are placing public schools at a comparative disadvantage
to private schools and parochial ones. Public schools are in the
market for top teaching talent, and yet poll after poll of public
school teachers invariably point to discipline problems as one reason
so many teachers quit and so many would-be teachers decide upon
The problem of student discipline and of teacher recruitment and
retention is real at all levels and in all strata of American society,
but it is especially acute in many schools that serve disadvantaged
communities, and these are the communities in which the promise
of public education must burn brightest. Yet these suits over student
discipline have the potential of arming student plaintiffs with
a sword and leaving educators with a very limited shield. Every
wrongdoer can always threaten courtroom action and thereby limit
the exercise of authority to what is often so difficult to assemble,
the super air-tight case. The ready availability of student causes
of action will place public school authority not in the position
of asserting itself, but in the constant position of having to justify
In a school environment in which weapons are present, drugs are
available, and assaults a commonplace, it is not a wise thing to
have authority placed on the defensive by the continuing prospective
of litigation. The impulse to let the courts decide can undermine
parental and educational authority to the serious detriment of an
entire generation, and a framework of pure legalism shows scant
promise of resolving the disciplinary problems of disadvantaged
school districts, affluent school districts or, indeed, of schools
Rights are a precious thing in America. I would be the last to
want to give them up. But the rights of adolescents are not in all
respects the same as the rights of adults, and it is sensible to
insist that students grow gradually into their exercise. The rights
revolution has emphasized the psychological impact upon students
of a fear of rejection and a loss of entitlement, but the rights
revolution has failed to communicate to students the consequences
of a neglect of their responsibilities. It is essential for schools
to teach the lesson of responsibility.
Responsibility involves a respect for right also, not only for
one's own rights, but for the rights of others. Responsibilities
go hand-in-hand with rights, and the former must be learned before
the latter can ever be enjoyed.
In sum, I reiterate that the causes and cures of the problems of
school violence are not simply. I firmly believe, however, that
school order will be improved in this country with fewer federal
lawsuits and that one small part of the solution lies in backing
up school authorities and in giving principals, teachers, parents
and communities themselves a greater freedom from federal litigation
and, hence, a greater hand in the governance of their own schools.
I thank you.
MR. EID: Thank you, Chief Judge Wilkinson.
We will hear next from Ann Beeson. Ann is Staff Attorney for the
American Civil Liberties Union.
MS. BEESON: Thank you, Troy, and thanks very much for inviting
me here to be on this very distinguished panel.
In grieving and responding to the tragedy, the terrible tragedy
at Littleton, we all appear as a society to have an irrepressible
urge to find a simple answer, as Judge Wilkinson suggested, a simple
solution that will prevent any further tragedy such as this.
I have heard over the past several months Columbine blamed on video
games, the availability of contraception, heavy metal music, the
Internet, high school cliques, and, of course, easy access to guns.
But we all know the causes are not simple, but, in fact, quite complex,
and I believe that it is, in fact, dangerous for us to look for
a single scapegoat. So I must say that I was -- I couldn't decide
whether to be dismayed or amused by the title of this panel, "Did
the law cause Columbine?," and I actually had a sneaking suspicion
that until I was invited, the working title may have been, "Did
the ACLU cause Columbine?"
Seriously, I worry, given my perspective, that the question is
quickly becoming not, "Did the law cause Columbine?,"
but "Did Columbine cause the law?" And what I mean by
that is that we all appear to be changing policy and changing the
ways that we deal with young people in direct response to this event.
As the Director of the National Alliance for Safe Schools said recently,
"Unfortunately, schools are going to let Littleton be the defining
moment for their preparedness for school violence." I saw that
because the odds of Littleton happening to a school district are
so incredibly remote.
We seem to have become a nation of fear. Schools everywhere are
changing policies and dealing with students as if every student
out there is a killer. There are 24 million junior high school and
high school students in this country. The vast majority of these
children, and I think we would all agree, are not assassins, but,
in fact, are the kids on the other side of the yellow line who are
weeping over the deaths of their classmates along with the rest
of us. It is no more right to treat all children as if they were
killers than it would be to set policy for adults under the assumption
that we are all Timothy McVeighs.
Just to provide a little background, and Troy mentioned some of
this in his opening statements, to what the statistics show in terms
of school violence, it is, in fact, and there are a wide variety
of studies that show this, decreasing. There were only 24 deaths,
and, of course, those are all horrible, and we don't want there
to be even that many, but of 24 million high school students, there
were only 24 deaths last year, and that includes the terrible, tragic
13 deaths in Columbine. The homicide rate in schools dropped 45
percent since 1994. Twenty-five percent of high school homicides
occurred in just four major cities. In fact, 99.4 percent of the
time that a child is killed, it happens outside of schools. The
fact is schools are still one of the safest places for a child to
be, and I think that we all agree that we want most of our children,
all of our children to stay safely in school.
It is very true and it is a very sad fact that many children are
much less safe in their own homes than they are in public schools
I have great empathy, however, of course, for the situation in
schools today, and for the very difficult problems that face school
administrators and teachers. I am the daughter of a high school
English teacher who has taught English in inner-city schools in
Dallas, Texas for over 40 years, and so I have a very personal relationship
to what it is like to be a teacher in schools today.
But we all must be reasonable, as parents, as community leaders,
as lawyers, as judges, in devising positive solutions to the problems
that face our schools. There is no question, however, that the reaction
since Littleton on the part of some school administrators has been
extreme. The ACLU offices around the country have been literally
flooded with calls from parents. We normally receive about two to
three calls per year per ACLU state office on student rights. We
have had many affiliates that have received over 50 calls in just
a two week period. These are calls, and I have received them myself,
from teary parents, the vast majority of whom are upper-middle class,
have children who have never been in trouble before, who are very
good students that make high grades, in other words, kids and parents
very much like some of the people in this room.
As I go through the following examples, I want you all to imagine
that you are at work today and you receive a call from a school
principal or, worse yet, the police station, that your child has
been punished for the following reasons, and these are just a very
small number of many of the calls that we have received around the
A 14 year old girl in Harrisburg, Pennsylvania was called to the
office and strip searched when, in a teacher initiated dialogue
about the Columbine tragedy, she said that she could begin to understand
how a kid could snap if he was made fun of as mercilessly as the
Columbine students seem to have. She was strip searched and then
ultimately suspended for two days.
Students in Alameda High School in Colorado, near Littleton, were
forbidden from wearing ribbons on their graduation gowns to recognize
and sympathize with the families of the victims at nearby Columbia.
Eleven students in Ohio were suspended for contributing to a Gothic-themed
web site that they had created outside of school time.
A 12 year old in Ponchatoula, Louisiana was locked up in juvenile
detention for two weeks for making terroristic threats when he told
fifth graders in the cafeteria line that he would get them if they
didn't leave enough potatoes for him.
An Indiana student created a "Buffy, the Vampire Slayer"
type web site in which he theorized, -- this is a short, two page
web site -- that his teachers were devil worshippers. He was not
only suspended, but his teachers have filed a federal lawsuit against
him and his mother for defamation and intentional infliction of
A 13 year old Albuquerque student was on the way to a field trip
to the Atomic Museum in Albuquerque and spoke up and said, "When
we get to the museum, are they going to teach us how to build a
bomb?" He was suspended for two weeks for that comment.
Students in Texas, in a case very similar to the Tinker case that
was mentioned by Judge Wilkinson, were suspended for wearing black
arm bands to school, again, in empathy and sympathy with the Columbine
Hundreds of students around the country have been suspended or
permanently expelled for wearing trench coats, for wearing black,
for dressing differently, for having blue hair. One student in black
was questioned severely when an administrator found a chemistry
book because the administrator thought that it was a book about
how to build a bomb.
And in one of the most extreme examples, a nine year old boy in
Ohio was suspended for writing on a fortune cookie message, in a
class project about diversity and Asian culture, "You will
die an honorable death."
As I say, these are just some of many of the examples we have had
around the country. What seems to be happening, unfortunately, is
that there seems to have been a little bit of an anti-oddball hysteria.
Despite the fact that, you know, in many ways, unfortunately, the
perpetrators at Columbine looked like many of the kids we all know,
it is now the kids that exhibit any eccentricity, that dress a little
differently, that are interested in computers, that are interested
in horror shows, that are the ones that are being suspected by their
fellow classmates and teachers.
This approach is counter-productive. It will only further alienate
-- and so are the suspensions, like these, you know, really extreme
ones that I have mentioned to you. It will only further alienate
students, and, of course, it is this alienation that has caused
these terrible tragedies in the first place in large part. It will
erase the fragile trust that exists between school teachers and
students. It will make -- it is making school suspicious, fearful
places where students often have fewer rights than prisoners, felons
in federal prisons. We have got to stop this approach.
Being different is simply not the same thing as being dangerous.
The portrait of a nonconformist in a school is not the profile of
a killer. I am not suggesting by any means that we do nothing when
kids act out and when they make insensitive statements about their
classmates or teachers. What I am suggesting is that suspension
may not be the answer, that we all must look for more creative and
positive solutions to the problems of kids' behavior and school
As the National Association of School Psychologists has said, "You
do not change a kid's behavior by expelling him, the real solution
is to teach these students how to think, how to act, how to deal
with their anger."
The zero tolerance policies that we are increasingly seeing in
the school have become zero tolerance for individuality, creativity,
uniqueness, freedom of thought, inquiry, and conscience. We are
forgetting that what we must do in our schools is to teach children
how to live in a democracy when they become adults. We must look
for positive solutions.
The National Association of School Administrators has come out
with some very good guidelines. They say we must work on root causes,
identify early signs of problem children, engage in much more peer
mediation and management programs. Break large urban high schools
that have become very impersonal into much smaller units where this
much more of a sense of community and more interaction between teachers,
the community members, parents and children. Promote acceptance
If there is anything that has tied all of the recent violence --
incidents of violence together it has been a high degree of intolerance
and hatred of religious minorities, or racial minorities.
We must have more training for teachers and we must sponsor community
groups and panels. The Massachusetts Governor's Council Against
Hate Crimes has started a statewide campaign and set of workshops
that I hope other states will follow, that bring schools, police,
students and parents together to discuss both safety and civil liberties
together. We have got to create this kind of dialogue. If, instead,
out of fear, we turn our schools into overly restricted, suspicious
places, we will have undermined the central purpose of schools to
create an atmosphere that fosters learning and growth. Thank you.
MR. EID: Thank you, Ann.
Michael Horowitz of the Hudson Institute, I want to ask you, Michael,
you are an expert on due process, perhaps you can talk a bit about
the Columbine backlash. What is it, does it exist? How does it relate
to constitutional rights that we might have? And then, also, if
you can touch on some of the First Amendment implications as well.
MR. HOROWITZ: First, I want to pay particular credit to Ann. As
Federalist Society panels go, Ann's point of view doesn't tend to
be as isolated as I suspect it will be when we get through. She
has articulated strongly and effectively a point of view, and we
need to give, in the context of this panel, even greater heed to
what she says as it comes under assault from the likes of me.
MR. HOROWITZ: In the late '60s and '70s, we, as a lawyer class,
saw injustice about us. There was some. There was considerably less
I think than we thought there was. We didn't like the value sets
of the society we were in. We were middle class, upper middle class
people reacting against the Victorian constraints, the men in the
gray flannel suits and so forth, and we wanted greater freedoms
for ourselves. And so we launched a revolution, and it was nothing
less than that, as Judge Wilkinson said. It was a revolution that
gave us adult, middle class people greater sexual freedom, more
-- looser dress codes. Net, one can argue whether or not we were
the beneficiaries of the revolution that we had made.
But the irony was, and the hypocrisy in some measure was that we
waged that revolution, of course not in our name, we lawyers never
do that, we do it in the names of other people, and so we waged
it in the name of the poor. We waged it in the name of children.
I think that revolution has made wastelands in some respects of
the institutions into whose decision-making process we intervened.
The revolution, as Judge Wilkinson said, was a very simple one
-- anyone dealing with a public official who didn't like either
what that public official did or how he or she did it, got access
to us, and not just federal courts, where at least there is often
a quality of justice for all of its Dickensian trappings, that is
of a high calibre, but we gave access to and final word to hearing
officials, to local school board lawyers, to supersede the decisions
of principals. And, similarly, we did the same in public housing
projects, where issues of eviction where subject to the same kind
of due process revolution.
Judge Wilkinson has talked about the Gault decision. Perhaps the
most influential jurist of the 20th Century, Justice Brennan, a
man of towering integrity, but I think, as with Ann, profoundly
mistaken in the values that they constitutionalize, said that of
all of the decisions he had rendered during this distinguished career
as a Supreme Court justice, his favorite was Goldberg v. Kelly,
a decision that required hearings and appeals before welfare could
be taken away from people on public assistance. And, once again,
that decision-making process of the middle level public official,
including the cop on the beat who couldn't ask people to identify
themselves and move on, turned public officials not into officials
with discretion, but into middle managers, and turned us, the champions
of the powerless and the little guy, into the final decision-makers.
We substituted ourselves for those officials and yet we were distant
from the decision-making process. We substituted abstract rules
for informal justice. And Ann is absolutely right, an informal justice
which often led to results which were simply horrible. She has given
some examples of that. I must say in the backlash, as we come back
to a more sensible position, and undo much of the excess of the
revolution than Ann had helped to generate, but in all events, we
were the ones who believed in ourselves, in our ability to do better
justice. The more due process, the more of us, the fairer things
would become, the more justice in society. I think we were wrong,
and profoundly wrong in that respect.
I think we were wrong in engaging relative power in society and
who ought to be the beneficiaries of profound power shifts. Let
me quote from Nadine Strowson of the American Civil Liberties Union,
talking in a pre-Columbine point, "People are scapegoating
individual rights, especially of groups that are particularly unpopular,
particularly powerless." School children and welfare mothers
are certainly among those groups. That was the view of the revolutionaries,
the successful revolutionaries, I add.
Now, as Judge Wilkinson has said, the perfect justice, or even
indeed the better justice that we sought met the reality of school
disciplinary hearings. However calibrated decisions of Supreme Courts
may be, as judges struggled for just the right balance point in
a particular case, the kinds of hearings that took place where the
rubber met the road involved bored, often less than competent school
officials and involved, very often, lawyers who were able to get
substantial fees for themselves in fee-shifting statutes. There
was often a profound competency mismatch in this hearing process.
And as Judge Wilkinson says, the more often, so very often, the
outcome was to let things go, to paper things over, to salami slice
the authority and discretion of school officials. And I think Judge
Wilkinson makes the most telling point of all, it made public officials
profoundly risk-averse, all the more so because the statutes under
which they are sued provide for personal liability against them.
I was in the Reagan Administration the Chairman of the School Discipline
Working Group. It was quite extraordinary to see the gap between
the elites in the legal world and often in the press, and the feelings
of parents who constantly said that school discipline was the number
one problem of the public school system, who looked for some kind
of support from public officials and who got so little, and who
got very, very small measures of support.
As we emphasized, the excesses often committed by local officials,
although when one got to the facts it was often a lot more wisdom
in that informal justice than seemed to be the case when these disciplinary
matters were popularized and became the subjects of headlines when
the lawsuits were brought. But what we did was not only to limit
the discretion of school officials and make them profoundly more
risk-averse, and I add, the same was true of housing authority managers,
cops on the beat, a whole range of middle level public officials
whom we turned into middle managers rather than authority figures.
There were two elements of hypocrisy that animated the revolution
that we, the legal class, created and made. The first, as Judge
Wilkinson has indicated, is that these constitutional decisions
apply to public schools. We, the very class of people who got warm
feelings in our bellies when we established rights for kids at schools,
were sending our kids to private schools where we were insisting
that the head of the school suspend that young man or woman if she
thought that that young man might be thinking of using drugs two
weeks down the road. We wanted that kind of discipline as shots
across the bow of our children. We were unwilling to live with this
constitutionalized regime that we had established in the name of
kids at public schools.
We wanted full hearings before an eviction could take place from
a public housing project and we were able to evict our neighbors
for playing the piano too loud. We wanted due process on the streets
and perfectly calibrated justice and the right to sue officials
in public spaces in the cities, but our kids were in the suburban
malls which were governed by rules of contract, where we ourselves
in the community, not just in courts, defined the limits of deviance
that we were willing to live with in the conduct of others.
I might also add, we sent our kids -- our kids got Christmas, Hanukkah
pageants at schools, and we got warm feelings in our bellies for
insuring that kids at public schools could sing "Frosty, the
Snowman" at winter celebrations.
The abandonment of public institutions, the loss of confidence
in public institutions is, in my judgment, very directly connected
to the constitutionalization of rights. We had means of escape in
that we are middle class people. Particularly kids in the ghettoes
and the poor had no means of escape from those public institutions.
Now, we also had another element of hypocrisy, because what we
talked of was mere hearings. Gee, it sounded so benign. What was
wrong with getting a hearing for some kid about to be suspended?
Well, the response is, of course, in part it made people risk-averse,
it imposed time constraints and hospital like stays on public officials,
and we understood that. We knew that the so-called mere hearings
that we wanted were really means of achieving a substantive due
What we wanted in those late '60s and '70s was two things. We wanted
a moral deregulation of public institutions, and schools very much
in particular, and we thought it would be solved by more resources,
Let me quote, again, the head of the Public School Project of the
American Civil Liberties Union, testifying to Congress in 1975.
He said, predicted confidently, "There will not be substantial
violence and disruption where there is meaningful education,"
and by which he meant greater resources dedicated to public school
Marion Wright Edelman, head of the Children's Defense Fund said,
"We believe that the solution to school violence does not lie
in more suspensions, but less, for its causes are to be found more
on the streets where drop-outs, push-outs and suspended students
pass time among delinquent gangs in arms or drug trade." And
she went on, "We believe that the substantive grounds for suspension
must be drastically pruned and punishable offenses refined so that
only situations which pose a direct and serious threat to people
or property are causes for temporary exclusion from schools."
This was the head of the Children's Defense Fund speaking in that
optimistic, utopian rhetoric of the '60s and '70s which said more
resources and a kind of moral deregulation, and a diminution of
the authority of public officials would lead to a better world.
Well, one of the -- Mary Ann Glenden has defined it, a professor
at Harvard, she says that what is really involved here is an agenda
which she calls "personal -- radical personal individualism
has superseded a kind of communitarian ethic as the central premise
of constitutional law."
Now, when I was in the Reagan Administration and heading up this
Task Force on School Discipline, I had one of the most extraordinary
experiences. We gathered 20 ghetto principals into the Roosevelt
Room to meet with the President. And we got one of the principals
and he talked about how he had taken a school, not with baseball
bats or violence on his part, a school that had dropouts and ill
attendance, and he turned it into a school with a long waiting list,
where kids now graduated, where substantial proportions went on
to college, and he turned to the President and he said, "Mr.
President, you want to know why we succeeded, why I succeeded?"
The President said, "Yes."
He said, and, again, Ann, with all due respect, he said, "It
was because the American Civil Liberties Union never found out what
I was doing. I had dress codes, I instituted suspensions. I disobeyed
all of the rules that were out there at my school." And he
then turned to the President and he said, "Well, they now know
what we are doing and they don't sue me, and do you want to know
why?" And the President, as straight-man, said, "Yes."
And the principal said, "Because they would lynch them in my
community if they dared to try."
At which point, the other principals, possibly the most heroic
and effective group of people I have ever been in a room with in
all my lifetime, began to applaud. There you had it. Ghetto principals
who were magically transforming schools for their kids. Principals
who said to the President, you could have put a billion dollars
into my school before there was a disciplinary ethic and before
I had authority, it would have been pouring it down a rat-hole.
They were the vigilantes applauding violations of law. That for
me was an eloquent moment.
And Columbine I think brings home to all of us the implications
of that, because what Columbine brings home is, to an American middle
class, what has been happening in the ghetto schools over these
last 20-25 years. I think if there is any good that comes out of
it, it is to awaken us to the wasteland effects of undisciplined
schools where all of the metal detectors, and you are right, Ann,
all of the badges are not going to make a difference.
What we really need is to restore the discretion and the authority
of public officials. Will they make mistakes? Ann has pointed out,
yes, of course, they will. But I submit that the mistakes will be
considerably less than those that we have made in substituting ourselves
for them. Thank you.
MR. EID: Thank you, Michael.
Professor William Kilpatrick, you have written eloquently about
the threat of law becoming a substitute for morality instead of
as a reflection of our shared values, and I am wondering, as Ann
had I think eloquently also described this backlash, if you will,
what can we realistically expect from the public schools? That is,
has the sense of shared community broken down to the point that
the schools are no longer realistically the best conduit for our
shared values? Are we substituting law for morality? Is the law
cold and stiff as Alexander Solzhenitsyn said back in 1978? What
do you think the future portends?
DR. KILPATRICK: Well, yes, I think the sort of cases that Ann talks
about raise the question of whether public schools are any longer
viable. I think they only work when there is a large scale consensus
in a country, and I think we may have lost that consensus and we
may have to look elsewhere.
Most of my writing over the past 15 years has been in the area
of character education, and I have come to some conclusions about
what works. The most important thing to realize is that about 70
percent of character formation is formation in good habits of behavior,
and that, unhappily, requires that parents and teachers discipline
children and maintain consistent standards of behavior for them.
Over the last 30 years, various court decisions and legislative
acts have had the effect of inhibiting both school and parental
discipline. As a result of some of the court cases we have heard
about and, also, federal legislation such IDEA, Individuals With
Disabilities Education Act, teachers and administrators have become
increasingly afraid to discipline children. And what is equally
important, have been reluctant to create a strong character building
ethos in the schools.
The Tinker decision guarantees students the right to freedom of
expression, and many educators now feel obliged to extend respect
to every kind of expression under the sun. If students wear trench
coats in the corridors or baseball caps in the classroom, turned
backwards, of course, if they wear Marilyn Manson T-shirts or studs
in their tongues or rings through their noses, or if they yell obscenities,
or if boys grope their girlfriends in the hallways, well, that is
just their First Amendment right to freedom of expression. And as
a result, it becomes very difficult for schools to provide a sense
of common purpose, let alone the sense of esprit de corps that some
schools once enjoyed.
And parents are equally inhibited. The average parent might not
be familiar with particular court decisions, but he or she knows
that any disciplinary measure more severe than time out could result
in trouble with the law, or what is the same thing, trouble with
the Department of Social Services. Among other things, parents are
afraid to spank their children, and parents who do spank are afraid
to do it in public. And, by the way, we might get into this issue
of spanking, because it is much more sophisticated than most people
think. We do have very simplistic ideas about spanking and thinking
that it causes criminality and so forth, when there really is no
evidence that it does. There is a tendency to confuse beatings and
abuse with spanking. So many parents, as a result, simply hope that
the schools will take care of disciplining their children, but as
I have suggested, the schools don't want to get involved.
Of course, I am not a lawyer, I am a psychologist, so let me branch
into something else here that I think is pertinent. It is not just
the law that is to blame. We live in a therapeutic society or a
psychological society which instructs both schools and family about
what is and is not developmentally correct. In the therapeutic society,
both parents and teachers are pressured to aspire to the therapeutic
model, to be like therapists to their children rather than to teach
discipline and socialize them. And the therapeutic society also
instructs the law, informing it, for example, that empathic understanding
is good and spanking is bad.
The therapeutic society puts a great deal of emphasis on feelings,
especially on feeling good about yourself, but high self-esteem,
as is now apparent, has little to do with good character and may
even be associated with high criminality. Nevertheless, we continue
to be devotees not of Athena, the goddess of wisdom, but of Diana,
the goddess of emotion. That is Diana of Wales, not Diana, the goddess
of chastity and hunting.
The therapeutic society also assists in helping to take away our
sense of individual responsibility by making available to us various
kinds of psychological excuses. A recent article by James Q. Wilson
nicely sums up this tendency, it is titled, "Sorry I Killed
You, But I Had a Bad Childhood."
I started by saying that about 70 percent of character formation
is good habit-formation, good discipline. I am tempted to also say
that the other 70 percent has to do with capturing the child's moral
imagination. When you are talking about the imagination, you don't
have to worry if the percentages don't add up. I am suggesting that
a great of attention to be paid to habit-formation, but also to
Plato said that children should be brought in such a way that they
will fall in love with virtue and hate vice, and he thought that
stories, history, art and music were the best ways to spark this
desire. In other words, it is not enough to know what is good, you
have to want what is good. There has to be an element of desire
and imaginative attraction to goodness.
Right now it seems to me the imaginations of young people are being
cultivated and formed not by parents and teachers but by popular
culture, and the emotional attractions being formed are more often
to vice than to virtue. I think it is no exaggeration to say that
the imaginations of many youngsters have been captured by images
of evil attractively and seductively presented. In the world of
pop culture and youth culture, evil is increasingly seen as cool.
The schools, inhibited by fear of the law and mired in a therapeutic
mindset, are unable to provide a vision that is strong enough to
counter the visions presented by popular culture. The vision of
therapeutic adjustment after all is no match for the twisted but
fascinating visions thrown out by movies, MTV and Internet porn
Much of the schools' inability to do this resides in the fact that
they have become thoroughly secular institutions. The only religion
they have is faith in the therapeutic process and, as such, they
lack the moral authority -- they lack moral authority. They can't
say thou shall or thou shalt not because, lacking any transcendent
vision, they can offer no ultimate rationale for good behavior.
What I am suggesting is that there is a connection between meaning
and morality. If life is meaningless, it doesn't really matter how
you behave, does it? But if your life is part of a larger meaningful
vision or story then what you do does matter very much. Public schools
can no longer make that connection between meaning and morality,
and because they can't, I think it is time to find alternatives
As to what Ann Beeson had to say about diversity and non-conformity,
I think if you really want diversity in the schools, then you have
to be in favor of school choice and vouchers to allow the creation
of diverse kinds of schools, so that you get diversity of traditions,
diversity of ideas and so forth. I don't think you see that very
much in public schools, or even in universities today, I think you
see a kind of conformity, a one party line and so forth.
And as to the issue of diversity of dress, I don't think that is
a terribly important factor in learning. For hundreds of years,
for example, at places like Oxford and Cambridge, students wore
academic gowns to classes and it didn't really seem to impede their
learning or their ability to think intelligently and critically.
Let me end with a philosophical observation, C.S. Lewis in his
book on education wrote, "We laugh at honor and are shocked
to find traitors in our midst." For a long time now many educators
have been laughing at honor, at character, at religion, at judgments
of right and wrong. Their songs of praise have been reserved for
subjectivism, relativism and emotivism, and non-judgmentalism. Philosophically,
many of them subscribe to the same relativistic assumptions as did
Harris and Klebold. We shouldn't be shocked when these assumptions
are occasionally taken to their logical conclusions. Thanks.
MR. EID: Thank you, Professor Kilpatrick.
Last, we have Jim Rapp, and, Jim, you are one of the nation's foremost
experts on education law, and earlier we talked about violent videos
that Harris and Klebold apparently made for class projects, poems
about murder and suicide. What do you -- I am just curious, from
your background, you are an expert in this, is this typical that
we would have this as part of an actual school project? What are
the limits in terms of what is actually happening on the ground
in our schools and what is the future in dealing with these kinds
MR. RAPP: Thank you. It is a real privilege to be here. As Troy
indicates, these issues are very complicated, and one of the issues
that he just alluded to, about what is permissible and impermissible
in schools is a question that is hotly debated. But the trend promoted
somewhat by the Hazelwood case, which had to do with a curricular
newspaper situation, the Bethel case, which had to do with a speech
given as nomination speech of a student both said that schools do
have control in that setting. And in curricular matters, schools
do have a lot. What surprises me is that in that case, why would
a teacher not act, take some initiative that they probably could?
One of the problems has been, as Judge Wilkinson said, and as Mr.
Horowitz said, is that we are frozen in inaction. We do not want
to do anything because it is just too much of a hassle to fight
those battles, and people in schools today are simply tired of fighting
I really consider it a privilege to be here today and be a part
of this panel. I think that all of us can assert that violence in
our schools is always very, very tragic. I would say from my experience
that there is probably no other school shooting, other than Columbine,
that has reverberated around the country more than that. It has.
The obvious planning that these students undertook, the intent,
literally, to destroy the building, the sheer indifference to others
and the number of victims could not help but shock all of us. My
heart and American's heart went out to the victims, families, to
the Columbine community and I think that few of us could help but
feel, as Judge Nicholson said, some personal impact.
As a parent and anyone who is here who is a parent, I know takes
school safety very personally. Few of us do not know the feeling
of a child coming to us after instances like to see some assurance
that that can't happen in their school. Unfortunately, as we look
at Columbine and Springfield and Jonesboro, and West Paducah and
other communities, unfortunately, we can find that these tragedies
can happen, and they happen, although statistically small, significant
in our society.
We are asking the question today -- why? "Did the law cause
Columbine?" As I think of this question, I can't help but think
of Dave Sanders. Mr. Sanders, as most of you I assume know, was
the teacher who was killed at Columbine and a hero there. In the
same year I began my career as a lawyer in 1974, Mr. Sanders began
his career as a teacher in Columbine. Mr. Sanders has been held
as motivational, he always knew the right thing to say to students.
He was always concerned about the individual students and he believed
in them. In the carnage of Columbine, Mr. Sanders, himself shot
twice in the chest, spent the last hours of his life leading others
to safety and warning others to leave the school
The schools that Mr. Sanders and others of his era entered were
very much different than the schools we find today. As has been
discussed today, many explanations are given, legal, social and
cultural. All of these are credited for the violence that we see.
Many ask, and I am sure that we could focus this discussion with
some of the questions that are raised. Can schools be safe where
God and prayer have been expelled? Can schools be safe where students
are permitted to dress how they please, say what they want, even
if these run counter to the views and interests of others? Can schools
be safe where relatively minor disciplinary matters require extending
a range of procedural due process that, as Professor Horowitz said,
were designed really to lead to substantive rights and protections?
It is shocking to me, for example, that in the case of Bethel,
we were dealing with a two day suspension, yet that case works its
way to the U.S. Supreme Court.
Can schools be safe where we are prevented from sharing information
about the students with law enforcement, social service agencies
and, believe it or not, parents? Can schools be safe where firearms
and bomb-making equipment are accessible to school-age children?
Can schools be safe where guns, violence, and violent offenders
are popularized, even glamorized by our entertainment industries?
And, at the extreme, can schools be safe without giving parents
the choice to abandon the public schools altogether?
These and many other questions focus our debate. To say that the
law fired the shots, planted the bombs in Columbine would obviously
reject the true facts and the multi-faceted aspects of school violence.
To say that our legal system has contributed to a change in the
dynamics of our schools certainly would not be.
The pendulum of change that Mr. Sanders witnessed in education
began with what the innovator of the public school, Horace Mann,
described as a common school, and sometimes it is advisable to think
back at what the common school was attempting to do. Most of us
think that the reason that we have common schools is for democracy,
that education is a bulwark and a need for -- a necessity for democracy.
Actually, the American education system, as envisioned by Mann,
was to serve to forge communities with common values and ethics.
According to Mann, the common school would be a great equalizer,
it would be a balance wheel of the social machinery. He believed
that through education, juvenile crime and violence would be reduced.
He also recognized that the common school served first and foremost
a moral purpose. Common schools were, according to him, a means
by which the public could participate in defining the public philosophy
taught its children. Mann thought education would combat the destructive
possibilities of religious, political and class discord and establish
a common value system that might serve as a foundation of American
society and with which a healthy diversity might thrive.
Do we really want more out of our schools today than what Horace
Mann envisioned a hundred years ago -- over a hundred and fifty
years ago? When Mr. Sanders and others of that era began their educations,
schools sought to impart common values, and I quite frankly believe
that Mr. Sanders' courage and demonstrated concern for others shows
the importance of those values.
Through developing constitutional law, the pendulum has swung away
from the focus on shared values to, in my opinion, an unhealthy
focus on individual interests, demands and personal concerns. With
few exceptions, a consistent thread in education jurisprudence over
the past several decades is to ignore group values and focusing
on, presumably, individual claims.
My respect for individual freedom is unyielding. Our freedoms must
be respected and preserved. Nonetheless, during the impressionable
years when children are in elementary school and high school, the
time is not right to bring every religious, political and class
debate to bear. This conflict has been aggravated by increasing
efforts by outside advocates to gain access to the minds and hearts
of school-age children both within and without the classroom. This
does not encourage a respect for others, but adds an element of
conflict and divisiveness that is simply not appropriate in our
These are the early years when society, through our schools, must
encourage and develop society's shared values and mutual respect.
Just as one cannot yell "fire" in a crowded theater, the
law must prevent igniting flames of conflict in impressionable children,
who are neither educationally nor emotionally prepared to deal with
conflict. Discipline, self-restraint and the common good may well
require that we support -- subordinate some of our individual expression
and belief, but students, like doctors, must learn anatomy before
they can perform surgery.
We could probably learn a lot from places like Disneyworld. We
learn to get in a line and nobody will necessarily get ahead of
us, take advantage of us. That is a good lesson. But we also learn
a lot from things like sending our kids on those cars that you can
drive anywhere you want in Disneyland Park, provided it is not more
than 18 inches to the left of that rail or 18 inches to the right.
The point is that in schools, the teachers, the faculty provide
that bar of location from which we can develop as good citizens
in the future.
The law has led to a disregard of school authority by many and
a willingness to challenge that authority even when appropriately
exercised. In Bethel, yes, it was ultimately proven that the school
did the right thing. But to the Supreme Court for a two day suspension?
Schools, and, more significantly, many teachers are not willing
to fight with parents, with students, and a batter of lawyers over
discipline and confront parents to deal with troubled children.
Somehow, we have developed the impression that my "right"
to wear a trench coat to school, or publish something on the Internet,
or be an athlete after a disciplinary infraction, or say something
in a speech should be more important than the right of the school
to set standards and expect students to follow them.
What is ironic is that the law is more willing to accept standards
of dress, publication and discipline in public and private work
places than in schools. Indeed, recent disclosures are that dress
codes are coming back. Quite simply, the schools of Mr. Sanders'
youth were ones where parents and students presumed school officials
were correct. The schools of today are presumed to be wrong.
Partial solutions to problems are sometimes quite simple and practical.
When the astronauts here could not use their pens in the zero gravity
of space, our superior space program, developed at great expense,
the ballpoint pen. Without our resources, Soviet astronauts were
issued pencils. I don't mean to suggest that the solutions to school
crime and violence are simple or quick. However, such solutions
-- such ideas as school uniforms may be the sort of simple and practical
initiative that may be helpful. Where used, they have made a meaningful
Right now we are seeing a lot of publicity also about, well, school
crime and violence are down. There is only so many deaths and there
is only so many threats, and only so many assaults. But some of
these may well be the result of some of the actions that have been
taken. The Gun-Free Schools Act, for example, which provides that
students who bring a gun to school are required to be disciplined
for -- expelled for one year is one such law.
In some states, such as my home state of Illinois, the law used
to be that if a student was expelled, they could only be expelled
for the remainder of that year. So, in other words, if a student
brought a gun to school in May, they were back in school in the
fall. Now, some states like Illinois had to outdo the federal government,
and they said if you bring a gun to school, you are going to be
out for two years. But the fact is that the lack of spine of local
schools and authorities to deal with these problems was bolstered
quite a bit by such things as the federal government saying use
uniforms and gun-free law. They have taken the role, believe it
or not, of setting some of these national standards that really
should be local, but the local officials are unable to deal with
them because of this culture of disregarding school authorities.
Another important aspect of the focus on the individual that has
not been given much attention today is the curtailment of the ability
of agencies to work together. Where tragedies such as Columbine
occur, there is often a trail of problems and signals tied together
after the fact that makes the road to violence rather clear. The
secrecy maintained by youth serving agencies has not the benign
effect that has been anticipated. Rather, the informational territorialism
has prevented agencies from intervening where appropriate and getting
help for a troubled child. This head in the sand attitude I also
believe has made parents reticent to accept that their children
do in fact sometimes have problems and come forward to seek help
when they obviously do. Communication and disclosure are critical
to preventing school violence.
Will America's schools become safe and welcoming overnight? Recent
history has obviously shown that the answer is no. Other Columbines
sadly will no doubt occur. What is important is that the nation's
attention is now clearly focused on seeking solutions to school
violence. Solutions will come from the debate from all sides. Many
programs that have initiated have been effective, and we should
not ignore the fact that our schools generally are quite safe.
In seeking solutions, I hope we never lose sight of people like
Mr. Sanders, who placed his concern for others above a concern for
himself. Instilling that attitude is an important foundation for
making all of our schools safe and welcoming. Thank you.
MR. EID: Thank you, Jim. We have a wealth of content and precious
little time. I would ask the panelists to please remain seated,
and I would like to open this up for questions from the audience.
Sir. Just speak into the microphone.
QUESTION: Author John Lott wrote a book called, "More Guns,
Less Crime," and he is a former University of Chicago law professor
who is currently at Yale Law School. In that book he writes that
if society has more guns, it is a safer society because people that
perpetrate crimes are less likely to attack victims if they know
that their victims are going to be armed. Shortly after the Columbine
shooting, Governor Jesse Ventura said that perhaps one of the solutions
would be for teachers to have, you know, guns in the classroom.
I don't know if that is a good idea, I think that is a little bit
I am just curious in the fact that, for example, Ms. Beeson spoke
that out of 24 million high school students, only 24 students were
killed. Now, to me, that is 24 students too many. We talk a lot
about the problem of school shootings, but we very rarely talk about
solutions. Mr. Rapp just briefly spoke about it. I am curious as
to what the panelists believe what might be some real solutions
to avert Columbines in the future.
MR. EID: Ann, do you want to start with that? And if we could limit
the responses to under a minute, I would appreciate it.
MS. BEESON: Actually, why don't we start with someone else since
I listed actually several in my talk? Why don't we give some other
panelists a chance?
MR. EID: Does anyone want to talk about one point that was raised
has to do with should teachers have guns in schools? The philosophy,
as you know, of concealed carry and, more generally, firearms carry
is that society is safer, supposedly, if people are armed and assailants
don't know. Anyone want to take that question? Is that an appropriate
use of school authority? In the interest of public safety. Mike.
MR. HOROWITZ: I would simply say it is a preposterous notion. The
idea of an arms race inside the schools is not going to solve the
problems. And let me also say, and it is one of the things about
Columbine that ought not detract us from keeping our eye on the
ball, Columbine involved violence, it is true, but the larger problem
are the problems of undiscipline in the school, lack of authority,
lack of teaching environment. Columbine brought that home to us
in technicolor with this extended problem. But if we focus on Columbine
as a violence issue only, we will have lost an extraordinary chance
to reform our public school system.
So notions of guns for teachers in this debate not only involves
mistaken solutions, but mistakes about what the real problems and
real issues posed by Columbine have been.
CHIEF JUDGE WILKINSON: Troy, can I just respond briefly?
MR. EID: Yes, Judge.
CHIEF JUDGE WILKINSON: As a parent, I wouldn't want a gun anywhere
in the school environment, and I think if a teacher is relying on
a gun to establish authority, then something has gone terribly wrong.
A teacher ought to have disciplinary authority, and the way most
good teachers establish authority is by having a lot to say about
the subjects that they are teaching, not by carrying a gun.
In terms of solutions, let me tell you one reason why I don't think
the law provides an abiding solution. It is because when you get
in a legal environment, it is so often adversarial, and whether
it is a state court suit or a federal court suit, we can put it
before a jury. We can reach a judgment, there can be a verdict,
there can be damages awarded. But nobody goes away much happier.
Nobody goes away much wiser. Even when a case settles, all that
happens is two attorneys talk to one another. The canons of ethics
would prevent an attorney or client from actually talking to the
other client. A settlement doesn't mean that an amicable solution
to a school problem has been reached, all it means is that a couple
of attorneys are able to deal with one another pragmatically for
a limited period of time.
And you don't reach abiding solutions to school problems in court,
because there is no communication of a really valuable sort, which
is what you need to resolve problems in the schools. This is something
I think Ann and I have in common, which is that getting the community
out of court and getting the community talking to one another, whether
it be in a PTA meeting or a parent-teacher conference or student
groups, or whatever, is the answer here. If I were to reduce it
to a sound bite, I would say the answer to some of these problems
lies in a lot more communication with all the different aspects
of the school community and a lot less litigation.
MR. EID: Ann, do you want to respond to that?
MS. BEESON: Sure, and I absolutely agree with Judge Wilkinson that
we have that in common, and I hope that all the panelists agree
that we can certainly use much more dialogue on this very important
I do want to, and this is sort of related to what the Judge said,
I do want to say that I think that we are laboring under a real
misconception about what the state of the law is, and I didn't have
time to cover much of this in my talk, and I wanted to just make
a few comments. Despite what some of the panelists seem to have
suggested about there being some sort of free speech or due process
revolution in the courts, if there has been any revolution at all,
it has to become more and more restrictive over the past 20 years
of those rights in the school context.
If you look through the case law, and there aren't very -- there
is not much litigation over this issue, by the way, and I will get
to that in a minute, you will find that in almost the vast majority
of cases, the courts are ruling in favor of the schools. They are
ultimately deciding that the school's discretion wins out. In fact,
in just a very small handful of free expression, student free expression
cases that have been successful in the courts, and I mean a very
small number of them, two of them involved the right to wear a rosary
and another the right to wear a button supporting a teacher strike.
In many of the other cases that involve school dress, that involve
what kids say at school, the courts have almost routinely in the
last 20 years since Tinker ruled for the schools. And the same in
the due process context as well, the very limited due process protections
that are provided in the schools, it is nearly impossible in the
last 20 years to find a federal case in which the school -- in which
the federal courts did not side with the schools ultimately. And
I will leave that comment there.
MR. EID: Next question. Sir.
QUESTION: I would like to ask a question, and due to the fact I
have a unique situation, I am an attorney, I am presently a member
of a school board, and I spent 13 years in a high school classroom,
I may be able to bring at least some unique experiences here. First,
I would never teach in a classroom if I had to carry a gun. And
as a school board member, I would never vote for that possibility,
and I think we would lose more teachers than we would ever gain
if we tread that road, so I agree with Mr. Horowitz, this is a terrible
way to try them, in a school.
Secondly, several speakers have spoke to teachers and administrators
being risk-averse, and I think that is correct, but I may have a
reason that you haven't thought of, where we tend to look at things
through our own eyes, and most of us are attorneys. I cannot think
of one teacher, one administrator, one superintendent who has extensive
legal training. And so the point I am trying to make is that when
you get to a one-on-one confrontation between a teacher and a child,
immediately, while they may have all the confidence in the world
to explain the Pythagorean theorem, they are out of their water
and they have -- they become risk-averse.
MR. EID: Let me stop you right there because I want to pick up
on that point from the panel. Let me just ask you, Jim, because,
of course, you have dealt with this extensively. What is the average
state of legal awareness of a classroom teacher in this country,
in the public school system or a principal?
MR. RAPP: Obviously, I can't speak for every area of the country,
but I would say in Illinois, anyway, the teachers are normally given
some background in these types of issues. And I guess one thing
that we shouldn't overlook is that many of the issues are brought
to a principal and, typically, they are required to take an education
law course in their training. There are often seminars for that.
So, I, frankly, you know, I really think that that may -- I would
agree with this concept, schools probably do not, and I would agree
with Ann, the schools probably do not exercise the legal authority
that they can exercise because -- and it is not because of ignorance,
but it is because they don't want to take that on. And I do feel
that schools could exercise very much control beyond what they exercise,
but they just don't, because I do think they are risk-averse.
One other thing I guess I wanted to mention, too, about this whole
thing about, yes, I would agree that very often, after four or five
years, schools do often win in the courts. I mean there is -- I
can give you -- I can give you some examples where they don't. But
what happens is that the chewing process that takes place through
the legal system gets rid of your will to fight that battle.
For example, the athlete during the season is drinking. You know,
if the coach could see him drink, the next day he is booted off
the team. The championship game is coming. The next day he is in
court. Some judge, somewhere, oh, poor, Johnny, let him go play
basketball, I am going to enter a temporary restraining order. He
plays in the game, and, yes, six months later, some judge will say,
oh, that is moot, we can't go into that and forget it. But he has
already played in the game. He has already gotten what he wanted.
It is a hollow victory to say, well, the coach could have really
suspended him. And that erodes the confidence that other students
have in these disciplinary rules. The problem is we don't need,
with guns or any other way, with arming teachers to impose discipline.
We have to have self-discipline, that is what our goal has to be.
MR. EID: Thank you. Professor Kilpatrick, 30 seconds and then we
will take one more question. Well, let me just ask, legal training
for teachers, how about moral training for teachers?
DR. KILPATRICK: Well, for both teachers and students. But, you
know, the real problem I think in our schools is not the high level
of violence that we see, but the kind of low level of violence and
crudity that occurs everyday in classrooms and corridors. And it
is that low level of violence that has occurred which I think makes
a lot of students hate their classmates, hate their teachers and
hate the schools. They hate the teachers for allowing it to go on.
And if you combine that with our great emphasis in this therapeutic
society on feelings and feelings are king, then if you really do
feel that kind of hatred and rage, then why not go ahead and act
on it. That is one of the problems.
The other problem has to do with -- it is a matter of authority.
I don't believe teachers should have guns either, but where does
their authority come from? Where does the authority of a teacher
over a student come from? Where does the authority of a parent over
his or her child come from? Does it come from some natural order
of things or from some divine orders of things, or does it come
from the state? Is it merely an arbitrary imposition of the will
of one person over another? And the more it is seen as an arbitrary
imposition, the more restive students are going to be and the more
they are going to resist it.
MR. EID: I guess we are out of time for questions, and I am going
to turn it back over to Justice Nicholson, and thank you.
JUDGE NICHOLSON: On behalf of The Federalist Society, its Working
Group on Criminal Law and Procedure and the Juvenile Justice Committee,
which, as I indicated earlier, I chair, we appreciate your attendance.
We appreciate the opportunity to reach America with these issues.
I would like to conclude with the following thoughts. As Ann Beeson
said, the law may not be what it appears to be, but that is the
problem, no one in this room and no one in America, and that includes
every Supreme Court Justice sitting on the United States Supreme
Court knows what the law is at any given moment on any particular
subject, because the law is always in a state of flux.
So you should leave here today, and everyone in America should
leave this program today, that watches it, with two challenges,
one, to try to identify what the issues are in the broadest context.
Each of these distinguished panelists had far more to say and far
more topics to discuss. But if I can remind you of the web site
at the University of New Haven, and I will recall it for you right
now -- www.newhaven.edu/victims/1.html -- you will find far more
topics than we discussed here today there, and you can decide for
yourselves what are the key topics. What is the mix of topics, what
are the important topics, and how do we get back on the road to
creating a common school for all of America?
And the conclusion I will give you is this, that until all Americans
consider all of these issues broadly and take the position of Ann
Beeson on each issue and then take the position contrary to Ann
Beeson on the issue, and decide for themselves, (1), What are the
issues?, and (2) What are the solutions? In fairness to Ann, you
should consider her point of view, but in fairness to the possibility
Ann is wrong, you should consider the contrary. And where you come
down is up to you as individuals.
So to America and to our schools, the solution is going to be developed
and resolved over many years when the minds and hearts of all Americans
decide again, I suggest to you, to restore the concept universally
of the common school and the shared burden of every American to
make those schools effective for every child in urban, suburban
and rural America. Thank you all for coming, and thank you to our
[Whereupon, at 11:00 a.m., the meeting concluded.]