FOR IMMEDIATE RELEASE
BOULDER, CO--In a letter sent to local school officials, the American Civil Liberties Union of Colorado is demanding that an unconstitutional policy that resulted in banning a third- grader's project from a science fair be changed.
For her project, entitled, "Does Skin Color Make a Difference?," the third-grader had dressed two Barbie dolls of different skin color in different dresses and asked adults and fifth-grade students which was prettier. Adults mostly chose based on the dress, but the children overwhelmingly picked the white Barbie.
In its letter to the Boulder Valley School District Board, written on behalf of the student and her father, David Thielen, the ACLU said that the message of the project was not racist and did not accuse students of being racist and that "it is the school that speculatively put the spin on the results."
Ironically, the project was almost the same as the experiments of the great psychologist Kenneth Clark, whose research on the self-image of black children played a pivotal role in the historic 1954 U.S. Supreme Court decision Brown v. Board of Education, which ended legal segregation of public schools.
"This is the kind of incident that dismays the friends of public education and delights its enemies," said Barry Satlow, chair of the Boulder County ACLU Chapter. "The school officials' decision to remove Ms. Thielen's experiment and their attempt to defend it elevates political correctness over academic freedom and the First Amendment."
Satlow pointed out that First Amendment freedom of speech, "suppressed by the school in the name of protection of members of minority groups ... has historically been a bulwark for minority groups and viewpoints against the tyranny of the majority."
According to news reports, Principal Greg Thompson of Mesa Elementary, following complaints from his staff and parents and fear that project would "upset" the few minority students at the school, decided to pull Thielen's project from the science fair right after Ms. Thielen displayed it. Thompson later justified his decision by claiming that it violated the school district's nondiscrimination policy regulations.
The regulations state that students may not "display visual or written material with the purpose or ... effect of demeaning the race, ethnicity, national origin, gender, sexual orientation, age, disability, or religion of any individual or group."
"The school district's nondiscrimination regulations are too broad, punishing speech that may make people "uncomfortable," said Satlow. Last May the ACLU protested the policy regulations, he said. "This incident demonstrates that our fears were well founded."
In a February 14 decision, the U.S. Court of Appeals for the Third Circuit (covering Pennsylvania, New Jersey, Delaware, and the Virgin Islands) voided a similar school code in State College, Pennsylvania, because no real fear of disruption was required to punish speech under the code.
In its letter, the ACLU asks the school board to clarify and revise the district's Nondiscrimination Policy Regulations and ensure that the policy applies only to conduct or to speech that would clearly endanger the health or safety of a member of the school community or cause substantial disruption of the educational process.
The ACLU also asks school officials to admit that they are wrong and commit to conducting future discussions about race among its students.
"This project might have become what some are wont to call a "teachable moment"- teaching about prejudice and racism, about the tenets of the First Amendment, about how to use truth to change what is bad in society and in our hearts," said Satlow. "And, we might ask, if not now, when?"
The ACLU's letter follows.
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February 26, 2001
Boulder Valley School District Board
Education Center
6500 Arapahoe Road
Boulder, CO 80303
Dear BVSD Board:
I am writing on behalf of the Boulder County Chapter of the American Civil Liberties Union at the request of David Thielen, who asked for our assistance on the removal of his eight-year- old daughter's science project from Mesa Elementary School's recent science fair. She is in the third grade at Mesa.
As described below, this action was a violation of Ms. Thielen's First Amendment rights of free speech and expression, particularly her rights of scientific inquiry and academic freedom. On behalf of Ms. Thielen and all other students, faculty and staff whose First Amendment rights are threatened by the unconstitutionally overbroad language of the District' s Nondiscrimination Policy Regulations, we request this policy be clarified and substantially revised so that incidents of this nature do not occur in the future. We understand that at last Ms. Thielen has been given a certificate for her participation in the science fair and that her teacher and school and have made sort of an apology to her, and we thank you for that, but there is a larger issue here.
As we understand her project, entitled, "Does Skin Color Make a Difference?," Ms. Thielen showed two dolls, a black Barbie and a white Barbie, to adults and school children. Her expectation was that most people would choose the white Barbie "because they are used to seeing Barbies that are white." She asked, "Which one is prettier?" of 15 adults, then switched the dresses and asked the same question of another 15 adults. Most of the adults picked the doll wearing the purple dress, regardless of skin color. She performed the same test with two groups of 15 children each. Most of the children picked the white Barbie, regardless of which doll wore the purple dress. The race of those surveyed was not stated.
Her project was removed from the fair by school officials just after she put it up, before it went on public display, apparently at the instance of or with the support of the school principal and with the support of the director of elementary education for the BVSD. We understand that the school and/or district may have requested that Ms. Thielen change the statement of her conclusions to downplay her data if she wanted to keep the project in the science fair. This is no less censorship for allowing the presentation but requiring a different form of expression.
In his letter to parents of February 20, 2001 explaining why the science fair project was withdrawn, Greg Thompson, principal of Mesa Elementary School, said the project was "racially insensitive and could cause offense to...students of color," and that there was a "real potential for emotional hurt and intellectual confusion." It is not clear whether any students of color ever saw the exhibit, and there is no mention of current or past incidents of disruption or racial discrimination at the school to support his fears.
It is ironic that this experiment was suppressed by the school in the name of protection of the rights of members of minority groups. In fact, freedom of speech has historically been a bulwark for minority groups and viewpoints against the tyranny of the majority for those "speaking truth to power" and seeking to persuade the majority of its error.
It is especially ironic that the experiment performed by this young girl mimicked, without her knowledge, the pioneering research done by the great psychologist and scientist Kenneth Bancroft Clark (1914- ). His research on the self-image of black children played a pivotal role in the historic 1954 U.S. Supreme Court case Brown v. Board of Education, which ended legal segregation of public schools and began the dismantling of "separate but equal" public education in the United States. As C. Vann Woodward points out in The Strange Career of Jim Crow, it put America on a path different from South Africa's.
In his study cited in Brown v. Board of Education, "Effect of Prejudice and Discrimination on Personality Development" (Midcentury White House Conference on Children and Youth, 1950), Dr. Clark studied the responses of more than 200 black children who were given a choice of white or brown dolls. From his findings that the children showed a preference for the white dolls as early as three years old, Dr. Clark concluded that segregation was psychologically damaging.
Ms. Thielen correctly used the scientific method: She had a hypothesis, developed a plan to collect data to test the hypothesis (an experiment), collected the data, compiled the results and, even though it partially disproved her hypothesis (that adults as well as children would mostly choose the white doll over the black), reported the results.
The message of Ms. Thielen's project was not racist; it did not even conclude that the students who preferred the white Barbie were racist, just that more of them liked that doll. It is the school that speculatively put the spin on the results. Barring the project from the fair pretends that children of color do not know that prejudice and racism exist.
The ACLU has consistently fought racial discrimination in public schools and fully supports the district's policy that there be "no discrimination, harassment, or violence against anyone in the school system." But, as the U.S. Supreme Court said in Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969), "it can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." A school may not prohibit speech on the "mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Tinker, 393 U.S. at 509. As a federal appeals court recently stated, "the Supreme Court has held time and again, both within and outside of the school context, that the mere fact that someone might take offense at the content of speech is not sufficient justification for prohibiting it." Saxe v. State College Area School District, ___ F.3d ___, 2001 U.S. App. LEXIS 2179, No. 99-4081 (3d Cir. Feb. 14, 2001) (page numbers not yet available).
Discomfort is the price we pay for the protections of the First Amendment, for free public discourse and the marketplace of ideas. This should be especially true in the public schools: School is the place where you are allowed to make mistakes, in the classroom, halls, playground, assembly and newspaper. There should be more freedom in school, more tolerance for error, not less.
We assume that there is no rule in this district or in the school restricting science projects to the hard sciences and barring social science projects from school science fairs, or the project would not have been approved by Ms. Thielen's teachers in the first place. Please provide copies of any district rules for science fairs and of Mesa Elementary School 's rules for its science fairs. Also, please state any rule on which the school based its decision to bar the project and any rule on which the district is now relying to support the decision if it defends the action of the school.
Principal Thompson's letter stated that removal of the project was consistent with specific sections of BVSD's Nondiscrimination Policy Regulations. As you may recall, in a May 25, 2000 letter to the board and in subsequent discussions with district counsel, we detailed the overbroad language of proposed revisions of the policy regulations and warned that, even with changes made at our request, the district was entering dangerous territory and that we would be watching how they were applied. This incident demonstrates our fears were well founded.
Now we can more specifically demonstrate how the district's Nondiscrimination Policy Regulations violate the First Amendment. A similar and arguably better justified school district policy was held to be unconstitutional on February 14 by the U.S. Court of Appeals for the Third Circuit in Saxe v. State College Area School District, cited above. Ruling on a facial challenge brought on behalf of religious students who feared that they would be punished for confronting other students for their sexual orientation, the court noted that "Tinker [cited above] requires a specific and significant fear of disruption, not just some remote apprehension of disturbance."
The court's opinion in Saxe is a primer on First Amendment issues in public schools. Saxe makes it clear that expression may not be prohibited or punished solely because of the perception of the listener or viewer: There is "no question that the free speech clause protects a wide variety of speech that listeners may consider deeply offensive, including statements that impugn another's race or national origin or that denigrate religious beliefs."
Significantly, the court in Saxe carefully distinguished the 10th Circuit' s recent opinion in West v. Derby Unified School District No. 260, 206 F.3d 1358 (10th Cir. 2000), where the court upheld the suspension of a student who drew a Confederate flag in class, in violation of the school district's "Racial Harassment and Intimidation" policy. The court noted that the school district had actually "experienced a series of racial incidents [including "hostile confrontations" and "at least one fight] ..., some of which were related to the Confederate flag." 206 F.3d at 1366. The West court relied on "the history of racial tension in the district" and distinguished it from a "mere desire to avoid discomfort and unpleasantness." What is necessary, the court found, is "a well-founded expectation of disruption-especially one based on past incidents arising out of similar speech."
BVSD's Nondiscrimination Policy Regulations are far more general than those in either Derby or West and cannot withstand scrutiny under the First Amendment.
The Saxe court criticized the school policy in question for punishing "not only speech that actually causes disruption, but also speech that merely intends to do so," by covering speech "'which has the purpose or effect of' interfering with educational performance or creating a hostile environment" (emphasis added). Similarly, the BVSD Nondiscrimination Policy recognizes that complaints "may arise from actual or perceived situations and circumstances." Introduction ¶ 1. Violations include making "demeaning remarks (such as by name-calling, slurs, or jokes)," Definitions ¶ 4a, or displaying "visual or written material with the purpose or ... effect of demeaning the race, ethnicity, national origin, gender, sexual orientation, age, disability, or religion of any individual or group." Definitions ¶ 4c (emphasis added throughout). As with the school code in invalidated in Saxe, the BVSD policy restricts speech and other expression based on content or perception, without any showing of disruption or of severity or pervasiveness.
The Saxe court noted: "No one would suggest that a school could constitutionally ban 'any unwelcome verbal ... conduct which offends ... an individual because of' some enumerated personal characteristics," such as "the characteristics of a person's religion." It found the "hostile environment" prong of the school policy wanting because it "does not, on its face, require any threshold showing of severity or pervasiveness [and] could conceivably be applied to cover any speech about some enumerated personal characteristics the content of which offends someone," without "a realistic threat of substantial disruption."
For now, we ask that the BVSD board clarify the district's Nondiscrimination Policy Regulations. No school official or, just as important, student, parent or teacher should be left with the illusion that the schools are allowed to prohibit expression in such circumstances. Beyond that, we ask that you rigorously review the current policy to ensure that it applies only to conduct or to speech that would clearly endanger the health or safety of a member of the school community or that clearly and imminently disrupts the educational process, as we urged last May.
This is the kind of incident that dismays the friends of public education, among whom we count ourselves, and delights its enemies. The school officials' decision and their attempt to defend it elevates political correctness over truth. What about Ms. Thielen 's feelings and the lesson that those in power have the right to decide what the individual may think and say or that race is too sensitive a subject for students to discuss on their own? This project might have become what some are wont to call a "teachable moment"-teaching about prejudice and racism, about the tenets of the First Amendment, about how to use truth to change what is bad in society and in our hearts. And, we might ask, if not now, when?
Based on the school's and district's statements about how they teach about racism and diversity, we would expect to see this project used in educational discussions at Mesa and other schools throughout the district, giving lessons on race as well as on the First Amendment and the rights of free expression. Instead, we have heard that at least one school principal who wanted to use Ms. Thielen's project display was prevented from doing this by district officials.
Of course discussion is not enough. As stated above, we want district policies to be changed so that First Amendment violations like this do not happen again. As in the past, the Boulder Chapter of the ACLU is eager to work with the district to achieve these goals.
Although a lawsuit is not planned now, we are very concerned and do not rule out this step. The case will be referred to the Colorado ACLU for litigation if our concerns are not fairly considered. We await your response.
Sincerely,
Barry Satlow, Chair
cc: George Garcia, Superintendent
Sue Armstrong, Executive Director ACLU of Colorado