The Federalist Society

Did the Law Cause Columbine?

Transcript

August 13, 1999

George Nicholson, Troy Eid, Ann Beeson, Michael Horowitz, James Rapp, William F. Kilpatrick, J. Harvie Wilkinson III

APPEARANCES:

JUDGE GEORGE NICHOLSON (Court of Appeals, State of California)

PANELISTS:

MR. TROY EID (Discussion Leader) (Chief Counsel to Colorado Governor Bill Owens)

MS. ANN BEESON (National Legal Department, ACLU)

MR. MICHAEL HOROWITZ (Senior Fellow, Hudson Institute,Former General Counsel, OMB)

MR. JAMES RAPP (Author/Editor-in-Chief, leading 7 volume treatise, Education Law)

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 Society’s August 13, 1999 press conference entitled, "Did the Law Cause Columbine?"

P R O C E E D I N G S

[9:00 a.m.]

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 situation.

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 next April.

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 these issues.

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 tragedy.

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 the years.

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 in practice.

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 violent.

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 cafeteria.

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 cause Columbine?"

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' rights.

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 federal funds.

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 for students?

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 be?

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 in 1964.

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 education.

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 you.

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 convictions.

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 day.

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 required.

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 another career.

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 itself.

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 anywhere.

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 in America.

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 country.

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 emotional distress.

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 victims.

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 discipline.

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 of difference.

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.

[Laughter.]

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 process outcome.

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, more dollars.

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 systems.

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 the imagination.

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 sites.

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 to them.

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 of issues?

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 those battles.

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 school setting.

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 difference.

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 radical.

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 issue.

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 guests.

[Whereupon, at 11:00 a.m., the meeting concluded.]


The Federalist Society