 Thanks so much for joining us on Think Tech Hawaii, and it's fundraising season again, so for those of you who appreciate and support us, please do go to thinktechhawaii.com, find the donate button, click on it, and if you are so moved, help keep us going. Today, educational censorship up against free learning. We have seen huge increases in not only book bannings, but in educational gag orders and educational gag legislation coming out of the Republican Party. Today, to discuss that with us, we have two esteemed law professors and a very experienced mediation, arbitration, and business consultant and professional. Okay, so we have Tina Patterson in Germantown, Maryland, mediator, arbitrator, recently returned from the gathering of mediators and arbitrators for the American Bar Association section of dispute resolution, as is David Larson, the immediate past chair of the ABA section of dispute resolution, and a professor at Mitchell Hamlin School of Law in St. Paul, Minnesota, and Ben Davis, visiting professor of law in Charlottesville, Virginia at Washington and Lee, and professor emeritus, retired from the University of Toledo School of Law, and extensive experience practicing in Europe as well before that. So, ladies and gentlemen, we're looking at a history where in 2021, besides book bannings, there were 54 GOP bills proposed for educational gag orders to prevent teachers from teaching entire subject matter, from critical race theory to LGBTQ choices to other thing. That number jumped in 2022 to 137 in the first not even full eight months. Now in 2023, in the first six weeks, we have 84 GOP educational gag legislative proposals. What's going on? Do you know you want to start us off? Thanks, Chuck. I think what's going on is literally a shutdown of the ability to learn, the ability to explore, and the ability for us to teach our children basic skills. You gave the highlights, but it's more than that. When we start talking about our teenagers, it's talking about reproductive systems, it's talking about how we engage with one another, and I think David's going to talk a little bit more about this. It's the institutionalization of these things. I'll pause there because I don't want to steal David's thunder, but it's not anything I've seen before. I mean, books have been banned in the past, yes. I remember ordinary people catcher in the ride, but now it's on a different scale altogether. So David, where is this politically institutionalized censorship of learning and teaching coming from? Well, I think it's part of a broader political strategy that the Republicans are saying, we're going to take control of the state legislatures and we're going to implement the policies we're comfortable with until we can somehow get power back at the federal level. Because we don't have that now. So I think it's part of that strategy. We're going to institutionalize. We've always had debates about the appropriateness of different learning materials. There's nothing wrong with that, to have that kind of a debate. And I think what's frightening about it is getting institutionalized. The Santas keeps signing bills down in Florida. And a couple of days ago, I was looking at his website and as he signed the Senate Bill 266 and he said, quote, we are ensuring that Florida's institutions encourage diversity of thought, civil discourse, and the pursuit of truth for generations to come. So that's what he says this legislation is intended to do. So if you look at Senate Bill 266, it prohibits programs, majors, minors, curriculum, general education core courses, based on theories that systemic racism, sexism, oppression, and privilege are inherent in institutions of the United States. Those two statements are completely antithetical. You can't say that I'm going to ensure diversity of thought and a search for truth and then specifically prohibit discussion of different ideas and theories. So we've got this situation going on where it's we're muzzling people. We are seeing statutes written with a certain amount of vagueness intentionally, so that legislatures can back off a little bit legislators and say that I'm not censoring anybody. People are censoring themselves. So you write the legislation vaguely prohibiting certain things and nobody really knows what it means. That same Senate Bill calls on presidents to review their procedures for disciplining faculty. So it's right there. The threat's there that we're going to prohibit you from doing these things. We are reviewing our policies and procedures for disciplining you if you happen to do it. And it's really a very aggressive censorship strategy. And you're right. And the punitive measures that are being attached to these things are not only the censorship and withdrawals of funding for schools, but terminations and sometimes even criminal penalty for teachers who even engage in those communication. Yeah. So I have two theories on this. I'll throw them out for you. One is if anyone remembers those old Republican consultant named Lee Atwater who discussed the Southern strategy. And so this progress over time in the strategy where you couldn't do the kind of George Wallace 50 stuff, but you had to come up with new words and things that were a little more sort of theoretical, but you're basically doing it to pull on the same heartstrings in the American people to get yourself voted in. So today, the Lee Atwater version 2023 is the word whoop. I'm against whoop. And so that is all about triggering the same kind of stuff that essentially was always trying to be triggered as part of Republicans getting domination in the majorities. There's also the gerrymandering part. But I think that I look at it as that. The other thing is it's decoupling the state system by essentially creating what I would call a separate and unequal trap for certain topics in education. And by creating those at the state level, there will be some comment about do is don't worry because there are federal requirements that are applied that are going to, you know, apply federal law, but essentially it's trying to decouple state commitment to this broad vision of education to create really separate track, unequal track for certain things and to use the budgetary power of the states to enforce that in terms of the marketplace of books being presented, the marketplace of hiring people, the potential for firing people, all those kinds of things are being used to create this separate and unequal track. And, you know, what's painful, at least we're doing to this right now in Ohio, is that you look, I just saw a letter that was done yesterday by the Inter-University Council made up the 14 presidents of the 14 public institutions here in Ohio. And rather than being full-throated to support for academic freedom, they're in the corner, we're going to work with you legislature, you know, please can you change the words like this a little bit, maybe this over here, this thing, can you just emphasize our federal responsibilities as opposed to highlighting, I mean, let's do it like they do it. They say, let's do it like, here's some language that they're doing in Florida, right? Why don't you do it like they do it in Florida, right? And I'm like, look, you know, you guys betray those principles in the whole of the 19th century, most of the 20th century, and you would think in the 21st century, you would be backing academic freedom and diversity and all that stuff. But instead, you're doing this little dance. And I'm, you know, I said to him, look, I think you back it up or you stand down because it's just not possible that you can have public educational institutions in favor of a separate and unequal system. It's just not possible in 2023. At least that's the way I think of it. So, but that's what's going on. The old Lee Atwater Southern strategy being played out across the country and the creation of a separate and unequal track for certain things, which creates fear. I know people have told me they're in fear. And I said, no, you shouldn't be in fear for who you are in this country. No one should be in fear who they are. And I'm standing with you, person who is trans. I said, I'm standing with you, you know, they don't want to do anything. No, I brought the book because they can feel it coming down the road. It's going to be after them. I said, no, we're going to stand on this. We're not going to be bullied on this because so that you don't get bullied on that. I will do it again. You know, I got a letter in the editor in the local newspaper up there in Toledo, Ohio, where I read the riot at. Do what I can. You do what you can. You fight. Well, you fight and you speak out. You know, so many things can happen at the lower levels of government. But don't forget that the people who are serving on these local school boards and the lowest levels of government are your neighbors. You probably know them and you probably run across them and talk with them. So take advantage of that opportunity to talk with them about these things. Have your voice heard. It may be much easier to have your voice heard at this level because you have your rubbed shoulders with these people, maybe routinely. So you might feel you can't get to your senator and you may feel deterred from doing that because it seems so hard. But it isn't at the local level. I would think that most people look at school boards and there's probably at least one person whose name they've heard before on their local school board. And when these kinds of things are happening, when we're getting the point of literally banning books, I was reading one report from a law librarian who was so uncertain about what was going to be prohibited that she took the yellow crime tape and took it around some of the bookshelves to keep the kids out away from the stack of the books until she could figure out what was going on. So if you see that going on, you've got to talk to people that are making these policies to say that it's out of control, that it's really frightening. And if you want kids to be engaged in education, it's got to be relevant to them. It's got to speak to them. And some of the books that are being banned are the very books that are speaking to different kids. And you take those books away and you're going to have kids that are not only alienated by other pressures in society, but even in school, that they're not going to find the kind of reinforcement and support and education that they should be able to find. Yeah, I'm going to back up to something you said. And then it goes with what you mentioned, Tower of the Pen. We talk about reaching out to our local legislators, reaching out to our school board, but there's nothing like an op-ed. And when people say, oh, I can't write, sure you can. Some of the things that catch us most in terms of the media are full page ads or a community that has decided to take out an ad position. We typically talk about the negative, but Ben is a perfect example. Write the letter to the editor. Write the letter. Let the editor know you have a different opinion. If there's five or six people that you know that are willing to sign or at least respond to the letter to the editor, do it. If you're not sure how to write a letter to the editor, one of the programs I'm aware of is called the op-ed project. And they work with people on how to develop letters to the editor or what they call op-ed. But write that letter, write the school board, write your council member. I don't like this. I don't want this. Write the library. The library gets funding too. No, this book is not going to be banned. There's absolutely nothing wrong with this book. And then you're right. Let's let this narrative about trans, who's trans, who's not trans, let people be people. They're not committing a crime, let them be. Well, yeah, I'm going to jump on what you said, Tina. And as I'm sitting here in Charlottesville looking at this stuff going on up in Toledo, you know, and where there is really a slur against the faculty, the staff, and the institution where I spent 18 years of my life that's being propagated. You know, I was like, well, what is the rest of the College of Law faculty saying about this? Or the staff there? Or what are the professors at the whole university saying about this and the staff? Or what about the alumni or having the school that they want to be dismissed? What are they saying about it? I mean, I'm sitting here in Charlottesville, Virginia. But you know, but I'm saying, well, you know, all you folks who've had all that invested in you and you're watching these people talking about this thing, this and that, about where you went to school. You know, you can make posts on Facebook about, I don't like that guy or something like that. But what are you doing to say, hey, this is not right. And contact your state senator or your state house and representative person or the president of the university, you know, trust me, I remember being at something as a private citizen. And lo and behold, all these people said, I was so crazy by the question and answers I did in 2012 in the Q&A. One true the vote wrote a thing. Law professor goes berserk at true the vote made it. I was asking questions, you know what I mean? I mean, and I saw it. And so, you know, I called my dean and said, hey, if you get any noise, just let you know this king's coming out. People wrote my dean saying, I'm so shocked by this law professor and how he acted at the true the vote meeting. And I found out that this whole thing went up through the board of trustees, we're on the margins of a board of trustees meeting. Some people were talking about, what's this thing about that law professor? Fortunately, general counsel, mayor friends, he said, you know, don't worry about that's nothing, that's fine. I got called into the dean's office and the dean asked about that. I said, yeah, I went to a true the vote meeting to see what they were about. I used to be a poll watch, the private citizen. And I heard that they were intimidating motor. And he said, oh, you're doing that. Did you do as a representative of the university? No, I was going as a private citizen. I got nothing to say to you. I said, okay, but do me a favor. The next person who writes me about me, please ask them, what's the name and address of their employer. So I can write to the employer. I mean, this is the kind of intimidation that this is all about. And you know what, people bend, but you know, they got little kids, they got, they got to pay for school, you know, they got to, they got kids in college, you know, they don't want to make wins, you know, they don't want their donors who sit there and be racist, and they got to suck up to them to try to get some money. I mean, it's all kind of stuff that goes on. But you know, it's nice thing about being emeritus is like, you know, well, I'm just going to tell you what I think. But I'll tell you, I know how fear is trying to be put in people's hearts. And that's all that this is about. And unless you stand now, you're going to be standing, you're going to be in worse later. That's why I was happy to see Penguin Books is suing the Sanctis in Florida. And parents from Florida suing the Sanctis. I was happy to say also that Disney suing the Sanctis. I mean, that's what they got. That's what you got to be. That's what you got to be now, man, because these people are just really trying to put in place a separate and unequal. And I'm just, I am so done with that. As a human being in the 21st century, I am so done with it. It's just not fair to decent people everywhere. For nice people who want to have their kids have a good education, and don't be caught in some political games with somebody trying to run for president. I mean, it's just nonsense. Sorry. Well, you know, there's a there's a moment that's around the corner now. That's going to be one of these flashpoints where you're going to stay quiet or you're not. And that's when we get the affirmative action decision from the United States Supreme Court. Now, that's going to be a moment in history where speak now or forever hold your peace. You know, schools and institutions are going to have to decide what they're going to do in the face of this opinion that probably is going to impair their ability to attract the diverse student body. And we're, you know, we've begun talking about it at our law school. And I think everybody should start talking about it, how they're going to respond. Because it's probably going to be pretty devastating in terms of what we've been permitted to do in terms of affirmative action in the past. I think we're going to get a really destructive opinion. And now we're going to do a strategy for responding to that. But what we can't do is just not respond. It's going to have to be going to have to be outspoken, aggressive and logical. Because, you know, what's being done is just not logical. It makes no sense to go back in time. So before we made all the advances we did in terms of civil rights, inclusion and diversity, and we're not we're not there yet by any means. So the idea that we're going to start retracting or retreating now, it just makes no sense at all. But I take it one step further, logical and rational. So what we're hearing right now is bordering on irrational, as far as the justifications, the stories, irrational and fear-based. And then to your point, you said, you know, stand up. I think about the old saying, if you don't stand up for something, you'll fall for anything. So stand up. Speak up. David, like you, I'm very concerned about this upcoming discussion regarding affirmative action. There are many of us who, we don't talk about it, but we know if the school didn't have an affirmative action policy, we probably wouldn't have gone to school. And, you know, to have this discussion at this day and time, it's hurtful. But it's also, it seems like the pendulum is swinging again. This conversation takes me back to conversations that I heard my parents and grandparents talk about in the mid 20th century. This is, you know, what do we tell our children? What do we tell the ones that are infants now? It's just disgraceful. And it's not a white black issue. This is literally being rational and logical. What would a logical, rational person do? You know, that's kind of, that's sort of what's happening with some of this legislation. It's like in Florida, you can't talk about systemic racism, systemic sexism. And the idea is, I think that if kids aren't exposed to this idea, they will never question it. They'll never question the fact that there may be institutions in the country that are inherently racist or sexist because they've never been exposed to the concept that it's possible. And I think that's the goal of some of this legislation is to kind of prevent that kind of critical thinking. Yeah, I agree. It's dumbing kids down. Okay. I mean, that's the thing for me is that it's dumbing kids down. And I think the effort should be to raise kids up to be critical thinkers that will, you know, solve the complex issues that we have coming forward. You know, I mean, it's just pitiful. And I'm doing was talking with my neighbor and she was talking about, you know, here in Charlottesville, how among blacks and whites has been a feeling that the atmosphere has changed since the last 10 years and so over, or particularly since that united the right kind of event that happened in 2017 in terms of just sort of the what's allowed to be said and what you hear, right? So, you know, what, what Tina's hearing from her parents and reminding them of the mid, sick mid century stuff. People are feeling it. People are feeling it. And the thing I say to people is, well, wait a minute, man, back in the day, there was Governor Lester Maddox, there was Governor George Wallace, there was Governor Ross Barnett, there was Governor Faubus, and people were out in the streets fighting him nonviolently. So, what's the big deal with this guy, Governor DeSantis, or the guy in the wine in Ohio and these guys? I mean, I mean, people were out in the streets with those government. And, you know, and, you know, I understand that, you know, people get a little nervous back in the day. Those people worried about getting fired from a job if they went out and protested about not being able to vote. And as to the affirmative action case, you know, let me tell you folks, Brown versus Board of Education was came down on May 17, 1954. That's a, there's a picture of this black lady with her little daughter with the newspaper on the steps of the Supreme Court. That's a classic iconic photo that was taken on May 18. That little girl is just like a year or two older than my sister and me today. And so the arc of our life has been in a life in that post-Brown experience. Every place that I have ever worked, I've been one or every place where I had an education or ever worked in the United States, I was one of one or two or maybe three blacks. This entire 67 year in places which have lots of white, that's how limited what's gone on has been. When Bakke came down, it was considered to be a failure at the time. They teach it now in law schools like Bakke was a success. It wasn't a success back in 1976. It was a failure because they gave up on the rationale of dealing with the history and talking about going with the diversity. So now we're talking about affirmative action being up. It's just one more of these things along the line. But you know, I'm into the history. I just found out last Friday, the name of the enslaved mulatto woman who had six children with president William Henry Harrison. Her name was Delicia. And one of those children was an ancestor of mine named Oliver Harrison. And when William Henry Harrison moved from Berkeley plantation to Grossland, he had a couple more kids. Those kids were free because they were in Indiana. But when he was trying to clean up his act to become president, he sold her to an enslaved North Carolina had had six kids with her. That's real history, folks. That's real history that's out there that they're just trying to hide from. I've talked to both Grossland and Berkeley and the comment somebody said is their little opaque on these things. You know what I mean? But I've got people in my family do the work and they've done the work and the DNA and all that stuff. So yeah, you can hide it, but you can't run from it. Okay. And then any wrap up remarks? Tina? I've already said it stand up. You'll fall for anything to stand up. David. Yeah, just real quick. This is going to be for another program. You know, it's really unfortunate that we've called programs affirmative action because really they are remedial action and you just can't have an affirmative action program that's never been legal. There's got to be a factual predicate. It's got to be an imbalance and a traditionally segregated job category. So it's a remedial based program. It's not an affirmative program and it's been mischaracterized to its detriment. The only thing I've been adding, I've been using a phrase recently, I call it the Delta. It's the Delta is between how high a black could rise and how high a white person could rise, going back to that delicia in 1815 and everything through. But there are many deltas in our society about people who came over on immigration. There's lots of different deltas in the society between how far someone could rise. And I just, that's the one I'm focused on because the disparities are so stark. So, you know, when they start talking about affirmative action is bad and all that stuff, I'm like, Hey, man, let me just take a look at the Delta. Where's the Delta? Where's the infant mortality rate? What's the maternal mortality rate? What's the health crisis rate? What's the incarceration rate? What's the Delta? Those are focused on the Delta, not on the jive, if I would say. Sorry, it goes so long. So, great questions for exactly as David just said and Tina replied for more sessions. Come back, rejoin us. We'll be back in a couple of weeks and leave at that point. I think if I remember right, Ben will be in charge. So, Oh my goodness. Please, please make sure you all are available. Okay. Thank you all with a lot. Best wishes. Thank you so much for watching this video. 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