• February 7, 2013
    Remaking America's Schools for the Twenty-First Century
    Harold Kwalwasser

    by Harold Kwalwasser, the former General Counsel of the Los Angeles Unified School District. He currently writes and consults on education policy from Washington, DC.

    I wrote my new book on education reform, Renewal, Remaking America’s Schools for the 21st Century, to address two concerns. One was that the legislative solutions being proposed when I decided to write the book (back in 2009), many of which have now been adopted, are not likely to bring about the reforms intended. 

    The second concern was that parents and community leaders needed to be encouraged to get more involved in school and school district governance. But encouraging them without giving them a handbook about what to do is a waste – or worse. It may create activists, but of the “bull-in-the-china-shop” variety, who are likely to do as much harm as good.

    The research for the book centered on my visits to forty high performing and transforming school districts, charters, private and parochial schools. After almost two hundred interviews with administrators, teachers, school board members, and others, the case for heightened parental and community involvement is clear and compelling. These people’s stories also re-affirmed my belief that legislative fixes from Washington or some state capital, no matter how well crafted, are likely to have only a limited impact in building the kind of schools we want to see.


  • January 17, 2013
    Priests of Our Democracy
    The Supreme Court, Academic Freedom, and the Anti-Communist Purge
    Marjorie Heins

    by Marjorie Heins, director of the Free Expression Policy Project, adjunct professor at New York University, and author of  Not in Front of the Children: Indecency, Censorship, and the Innocence of Youth. Her latest book is Priests of Our Democracy: The Supreme Court, Academic Freedom, and the Anti-Communist Purge.

    Academic freedom is not as obvious a concept nowadays as it seemed when the Supreme Court first incorporated it into the First Amendment in response to McCarthy era investigations and purges of left-wing teachers and professors. Why, after all, should academics have privileges not given to workers in other jobs? Surely, academic freedom would not protect the instructor who is incompetent -- who denies the Holocaust in a history class, for example, or preaches creationism instead of teaching evolution in Biology 101.

    The idea of academic freedom emerged more than a century ago, when professors who supported union organizing and other social causes were losing their jobs because corporate-dominated boards of trustees did not like their politics. One of the best-publicized firings was of the young professor Scott Nearing from the University of Pennsylvania. In response, prominent scholars got together and founded the American Association of University Professors (the AAUP). The AAUP’s 1915 “Declaration of Principles on Academic Freedom and Academic Tenure” argued that universities are different from businesses and professors are therefore different from other employees. The freedom they need in their teaching, research, and “extramural” speech (such as Scott Nearing’s advocacy for socialism and against child labor) are not matters of personal privilege but of broad public interest.

    Or, as Justice Felix Frankfurter put it in a 1952 case, teachers are “the priests of our democracy” because it is their special task “to foster those habits of open-mindedness and critical inquiry which alone make for responsible citizens.” It’s this notion that education is not just about rote learning but about “habits of open-mindedness and critical inquiry” that makes teachers essential to democracy.

    But lofty ideals are vulnerable to political realities and, consumed by the Cold War tensions of the 1950s, most American schools and universities decided that academic freedom should not protect teachers suspected of communist sympathies unless they cooperated with loyalty investigations by renouncing their past political errors and “naming names” of others they had known in the radical movements of the 1930s and ‘40s.

  • December 20, 2012
    Brandishing the First Amendment
    Commercial Expression in America
    Tamara R. Piety

    by Professor Tamara R. Piety, Associate Dean of Faculty Development and Professor of Law, University of Tulsa College of Law


    The Supreme Court has been very active on the First Amendment in the last few years. In 2010 it issued Citizens United, a controversial and unpopular decision which announced a robust vision of the role of corporate personhood. According to the New York Times, “[t]he First Amendment dominated” the 2011 term as well when the Court decided, among other cases, Brown v. Entertainment Merchantsa decision striking downa California statute which attempted to restrict the sale of violent videos to children, and Sorrell v. IMS Health, a decision striking down a Vermont statute which attempted to limit the sale of physician prescriber information for marketing purposes without the doctor’s permission on First Amendment grounds.  These cases, and others, taken together reflect a distinct trend, in the Supreme Court and elsewhere, toward greater protection for commercial speech. This trend is the subject my new book, Brandishing the First Amendment: Commercial Expression in America (U.  of Michigan Press, 2012). In Brandishing the First Amendment I discuss the way in which increased First Amendment protection for commercial speech has provided the intellectual foundation for increased protection for corporate political speech, which has, in turn been then used to argue for greater protection for commercial speech, thereby turning the First Amendment into a sort of all-purpose weapon against a variety of governmental regulations.            

    This is a troubling development because it is difficult to meaningfully and effectively regulate commerce if you cannot regulate commercial speech. This new and robust commercial speech doctrine threatens to undermine a good deal of the basic regulatory regime legitimized since the New Deal.In Brandishing the First Amendment I look at the various theories that have been offered for why we might want to protect freedom of expression, using as a starting point the work of the late Yale law professor

    Thomas Emerson, in particular his book Toward a General Theory of the First Amendment, and conclude that none of interests that freedom of expression is meant to protect are particularly advanced, if at all, by protecting commercial speech.  To the contrary, I argue there is good reason to suppose that offering robust protection to commercial speech may well undermine the very interests the protection for freedom of expression is thought to advance.

    In Brandishing the First Amendment I draw on work in marketing research, psychology, behavioral economics, and professional and academic work in marketing and public relations to explore marketing practices and how they work and how marketers,  driven by the imperatives of the market, may engage in promotional practices that are contrary to the public health and welfare. I also explore the attributes of corporate “personhood” as dictated by principles of corporate law and argue that an examination of all of these elements suggests that full First Amendment protection for commercial expression is likely to exacerbate many of the pressing social problems of our times, from changing consumption patterns to ameliorate global climate change to protecting the public from unsafe pharmaceutical drugs; from reining in unsafe promotional practices in the consumer credit market to regulating the sale of securities.  Those interested in the interaction of the First Amendment, commerce, commercialism, and corporate influence in modern life will want to read this book.

  • October 25, 2012
    Failed Evidence: Why Law Enforcement Resists Science
    David A. Harris

    By David A. Harris, Distinguished Faculty Scholar and Professor of Law, Associate Dean for Research, University of Pittsburgh School of Law

    The news everywhere today is full of headlines like “DNA Cracks Cold Case.” Popular culture is topped by television programs like CSI, in which police are more likely to use test tubes and high-tech gadgetry than guns and handcuffs to solve crimes. The bad guys better watch out: science is now the handmaiden of law enforcement.  And with that kind of partnership, criminals don’t stand a chance. 

    But my new book, Failed Evidence: Why Law Enforcement Resists Science (NYU Press, 2012), exposes this picture for the myth that it is. Aside from DNA and analytical chemistry, police and prosecutors usually resist science, sometimes very vocally.  This scientific work concerns the basics of how police gather the evidence that prosecutors use in court every day: eyewitness identifications, suspect interrogations, and basic kinds of forensic evidence, like fingerprint analysis, and hair and fiber identification.  This science has been peer reviewed and published and replicated for years – sometimes for decades.  It tells us not only what the problems are in these basic areas of investigation, but how to fix them.  And yet, there is resistance to re-calibrating our police and prosecutorial practices so that they are consistent with the best of what science can teach us.  The question at the heart of Failed Evidence is why.  If we understand where that resistance comes from, we can find ways to overcome it, so that we can stop convicting the innocent, and get the real guilty parties off the street.

  • September 20, 2012
    Wrong and Dangerous: Ten Right Wing Myths About Our Constitution
    Garrett Epps

    By Garrett Epps, Professor of Law, University of Baltimore School of Law. Epps is also a contributing editor at The American Prospect.

    When future generations write the history of our time, I think they'll be struck by the way that vocal minorities in early 21st American culture succeeded in convincing their fellow citizens that there is doubt about obvious truths. The unquestionable reality of climate change is now discussed (only in America) as if it were a doubtful surmise; so, too, in much of the country is the demonstrable fact of evolution through natural selection. Human reproductive biology is now being targeted for dumbing down (see recent claims made by Sen. Todd Akin), as is public health.  I daily expect to read that we must all act as if there’s some question that pi equals three, because I Kings 7:23 implies that it does.

    That same sort of dumbing-down has been directed, over the past four years and more, at the United States Constitution. Any citizen's ears are daily assaulted by insistent claims that the "purpose" of the Constitution was to cripple Congress; that the First Amendment does not separate church and state; that the Second Amendment was passed so that citizens may defy federal law; that states are "sovereign" and may expel federal officials at their pleasure; and that federal environmental, social welfare, and worker-safety programs are illegitimate uses of the Commerce Power. If you don't believe me, just turn on Fox News, listen to AM talk radio, or read the letters columns of your hometown newspaper.

    And it's not just the public dialogue that is coming unhinged; extremists on the lower federal bench have begun using libertarian rhetoric as part of a crusade to cripple government. As one example, just consider the recent decision by the D.C. Circuit that new health warnings on cigarette packs are unconstitutional because efforts to discourage smoking are an "ideological," not a public health, matter.

    Two years ago, I became concerned about the toxic effects of this ideological sludge. The result is my new book, published this week, Wrong and Dangerous: Ten Right Wing Myths About Our Constitution

    The book was born out of a session of Tea Party-style "Constitution school" in a church basement, in which our instructor solemnly informed us that the Constitution is the law of Moses, brought to England by the Lost Tribes of Israel, and "intended" to restore the tallow-candle world of fifth-century Saxon England.

    I am not making this up. These seminars are going on every weekend across the country.