The MacNeil/Lehrer NewsHour

Intro JIM LEHRER: Good evening. Leading the news this Thursday, Panama military leader General Manuel Noriega was fired. Secretary of State Shultz said in Jerusalem the time was ripe for new Arab/Israeli peace talks. Israeli soldiers shot and killed two Palestinian protestors on the West Bank. And the U. S. economy grew at a health rate in the last quarter of last year. We'll have the details in our news summary in a moment. Robin? ROBERT MacNEIL: After the news summary, the campaign finance reform fight that has snarled up the Senate. We have a debate. Then, two lawyers discuss the fallout from the Supreme Court ruling on Flynt, Falwell and the First Amendment. Next, the state of American high schools. Education Secretary Bennett discusses his criticisms with two education experts. We close with an essay by Clarence Page on black history.News Summary LEHRER: Panama's military leader General Manuel Noriega was fired today. President Eric Delvalle replaced Noriega as head of Panama's army. Noriega has been indicted in the United States for alleged involvement in drug trafficking. Last night, President Reagan called for Noriega's resignation and the return to democracy in Panama. It is not yet known what response Noriega will have to today's action. Robin? MacNEIL: Secretary of State George Shultz flew to Israel today with hopes of starting a new peace effort, saying things had to change. On his arrival at Ben Gurion Airport, Shultz said this:

GEORGE SHULTZ, Secretary of State: Recent events have underscored a clear and crucial fact. The status quo in the region is not a stable option for any of the parties. At the same time, the status quo must not be changed in a way that would endanger Israel's security. MacNEIL: Before his arrival in Israel, Shultz said some outside force might be involved in the current unrest, but the underlying problem was a large number of people in an occupied area who do not have the basic right of governance. The Secretary's arrival coincided with more violence. Israeli troops shot dead two Palestinians during disturbances. Soldiers arrested 100 Palestinians suspected of lynching an Israeli collaborator yesterday. LEHRER: The U. S. economy, it turns out, went out of 1987 with a bang. The Commerce Department reported today the economy grew at a 4. 5% rate the last three months of the year. That is the best growth rate in almost two years. The department's figure measures the total output of goods and services, and is called the gross national product. MacNEIL: A Conrail engineer convicted of manslaughter in a 1987 train crash called today for random drug and alcohol testing of railroad workers. Richard Gates admitted smoking marijuana shortly before the train he was driving hit a crowded Amtrak train near Chase, Maryland, last year, killing 16 people and injuring 175 others. Today, he testified before a Senate hearing on drug testing for transportation employees.

RICHARD GATES, former Conrail engineer: I believe that random drug and alcohol testing is the appropriate response to an industry wide problem. My experience has led me to believe that testing based upon reasonable suspicion standard is not effective. I say this because I believe that standard provides little if any guidance for those actually in the field. Furthermore, the discretion inherent in this standard means there's little uniformity in its application. LEHRER: The nation's public schools are no better off now than they were a year ago, despite the expenditure of nearly $170 billion. That was the disappointing word today from Education Secretary William Bennett in another of his annual reports on how the schools are doing.

WILLIAM BENNETT, Secretary of Education: Last year, national spending on public elementary and secondary education increased by over $11 billion. The test scores did not go up. This year, spending is expected to rise by $10 billion. What will we have to show for it? We're paying top dollar to educate our children. But we're sure not getting top return. Not yet. These very substantial and ever increasing dollars have not yet given us the results that our children deserve. LEHRER: Bennett also said more money should go to teachers, who now receive less than half of the total spent on public education. MacNEIL: South African church leaders today called for a nationwide services on Sunday to protest the government's latest crackdown on the opposition. The new restrictions precede a series of elections in which government candidates face strong challenges from right wing extremists. We have a report from James Robbins of the BBC.

JAMES ROBBINS, BBC: Public protest against the bannings has to be muted. Women of the Black Sash Organization, which escaped the new curbs, mourned what they called the final death of democracy, draping the headquarters building of several of the political groups effectively silenced. At Wits University, students no longer know how opposition is to be organized. It seems the churches more and more will be their only political voice. But in elections, it's the whites, not the blacks, who count. Standerton goes to the polls next week, and in this rural community, fairly typical of South Africa, B. W. Bothe and his government look like liberals. Some of the old apartheid is still in place, but many voters think it's all too shaky. Tonight in Standerton, President Bothe's attempt to rally support was ill fated. Rainstorms forced his helicopter to turn back. After two hours, the faithful were still waiting. At the rival conservative meeting, party leader Dr. Andries Treurnicht seized his moment, portraying the president as the liberal, the new restrictions as a stunt, too little, too late. The poll next week will show if the right wing will continue to dictate the future for South Africa. LEHRER: The rioting continued today in South Korea. Thousands of demonstrators battled police in Seoul and eight other cities. They were protesting the inauguration of the new South Korean president, Roh Tae Woo. Roh became president Thursday. He is a former army general who won the presidency in elections last December. MacNEIL: In East Germany there was a farewell ceremony today for Soviet troops withdrawing nuclear missiles under the medium range treaty with the United States. In the town of Bischofswerda, hundreds of people waved flags in an orchestrated ceremony at the train station. The train was loaded with containers said to carry parts of dismantled SS 12 missiles. A similar withdrawal was reported from Czechoslovakia. LEHRER: A U. S. army private was given a bad conduct discharge today for defecting to the Soviet Union. A military judge in Ft. Dix, New Jersey, returned the judgment against Pfc. Wade Roberts. He was stripped against all military benefits, but was not sentenced to prison. The judge found him guilty of being absent without leave, rather than the more serious charge of desertion. Roberts left his post in West Germany last February with his girlfriend. He returned to West Germany the following November, saying he did not like the life in the Soviet Union and was afraid he might be trapped there. MacNEIL: That's our news summary. Ahead on the NewsHour, campaign finance reform, Hustler and the First Amendment, the trouble with high schools, and black history. Running on Money LEHRER: The big, strange filibuster in the U. S. Senate is the story we go to first tonight. And some story it is. Many senators are outraged, some senators have been arrested, Republican senators have accused Democratic senators of turning the Senate into a Banana Republic. Democratic senators have accused Republican senators of forsaking their responsibilities as U. S. senators. Campaign financing is the alleged cause of it all, because it is a campaign financing reform bill offered by the Democrats that the Republicans are trying to talk to death. A coauthor of the legislation, Senator David Boren, Democrat of Oklahoma, is with us now, as is one of the key filisbusterers, Senator Mitch McConnell, Republican of Kentucky. They are with us from Capitol Hill. Senator Boren, how would you characterize what is going on in the U. S. Senate right now? Sen. DAVID BOREN, (D) Oklahoma: Well, I would say it's mainly a struggle for principle, it's a struggle and a very important issue for this country. And that is, will we allow the cost of campaigns to continue to skyrocket out of sight? Campaign spending's gone up 500% in the last ten years. And we're now at the point that it costs the average candidate for the United States Senate $3 million to run a successful race. And that means that every senator that serves has to raise about $10,000 every single week, week in and week out, for six years, to raise enough money to run for election or for reelection. We don't think that's right, and we think it's distorting the process. It's a threat to the integrity of the election process, and we think something should be done about it. And so that's why this issue has aroused so much interest out here over the last few days. LEHRER: In shorthand form, if possible, Senator, tell me what your bill would do about this problem. Sen. BOREN: Well, our bill would tackle both problems. First of all, it would put voluntary spending limits on how much candidates can spend running for office. So that we can stop this upward spiral and campaign costs. Under the Supreme Court decision, we have to give candidates incentives in order to accept those voluntary spending limits. The second thing it would do is reduce the proportion of contributions that can come from special interest groups, from political action committees and others. Because not only is too much money going into politics, but it's also coming from the wrong places. Almost 200 members elected to Congress last year received over half of all of their campaign money, not from the people back home at the grass roots, but from special interest groups, mainly controlled here in Washington. So too much money coming from the wrong places and we need to tackle both problems. LEHRER: Senator McConnell, why are you and your fellow Republicans so opposed to this? Sen. MITCH McCONNELL, (R) Kentucky: What this is all about, Jim, is a struggle for partisan advantage. The Democrats want to put a limit on how many individual contributors you can have in campaigns, and thereby snuff out that form of participation. Because they don't do as well with small cash contributors as we do. So they want to put a cap on how many people can contribute their dollars to campaigns, and leave relatively uncontrolled the so called soft money. That is the in kind contributions on behalf of labor unions and others, principally given to Democratic candidates. So what this is about is a struggle for partisan advantage. And we have said that we will not today, not tomorrow, nor ever, agree to a bill that not only limits the number of people who can participate in politics, but also puts the Republicans in a position of being a minority forever. That's just not going to happen. LEHRER: Senator McConnell, do you agree with Senator Boren's characterization of what the problem is -- that there's too -- you heard what he said, I won't repeat it. Sen. McCONNELL: No, I don't. As a matter of fact, we're not spending too much in politics. You've got to remember that under the post Watergate campaign finance reforms, there's a limit on what individuals can contribute, and full disclosure. So the reason we're able to spend more in campaigns is because more people are participating. The participation in politics is going way up. In addition to that, it's important to note that the campaigns in which there's a good deal of spending are the campaigns in which there is good competition and high voter turnout. So we're trying to deal with the problem that isn't a problem. One thing that is a problem, however, is the question of special interests in politics, the so called PAC's. Many people on my side of the aisle, and no a single senator on the other side of the aisle, are willing to eliminate PAC's altogether, just terminate them. If anybody out in America's concerned about campaign finance reform in terms of special interests, they're thinking about PAC's. And S 2, the bill of my friend from Oklahoma, Senator Boren, doesn't do much about PAC's. It has a modest limitation on the aggregate amount that they can contribute. But we'd be willing to see them gone tomorrow, and that's what we ought to be doing in this campaign reform legislation. Sen. BOREN: Well, Jim, I have to disagree with my good friend. Surely he knows that I'm one of the few senators -- I think there are only three or four of us left in the Senate -- that don't accept any pact contributions at all. So he's not going to get any quarrel from me. The fact is that as we try to negotiate, we've talked about trying to make this fair, no one wants a partisan advantage. This is an American problem. And I think if we keep on spending more and more -- incumbents usually raise more money than their challengers. That's what's going to keep this party in the minority forever. We ought to get together, quit thinking of this in partisan terms. The issue is clearly this. He said -- when we were trying to negotiate, those who were opposed to the bill said there's one thing we won't negotiate about. We will not agree to even consider putting limits on total campaign spending. And that's the nub of the difference. We just think that all of this spending's not good. Senators are out raising money when they ought to be dealing with the people's problems. Sen. McCONNELL: Jim, can I respond to that point? We have an example before us of the kind of system that Dave Boren is talking about. It's the presidential system. It has a system of limitation on spending, and public finance. What has it done? It's made a cheater out of every major candidate for president since 1976. One out of four dollars in presidential races has gone to lawyers and accountants, and it's turned running for president into essentially an accounting and strategy decision in terms of how to get around the law. If we apply that kind of system of spending limits and public finance to 535 different races, senate and house, the Federal Election Commission'll soon be as big as the Veterans Administration. Sen. BOREN: Well, there's nobody suggesting that. And I have to say in all honesty I think that's a straw man. We're not advocating the presidential system, we're not advocating any kind of automatic public financing. What we're saying is there ought to be limits on how much you can spend. And I would challenge my colleague to answer me how it is good for the country. I was sitting there watching the pages who serve on the Senate floor, thinking that if they decided to run for the Senate twelve years from now when they're old enough to run, that at the current rate, instead of costing $3 million, it's going to cost them $15 million to run a successful campaign. I don't think they ought to have to compete on that basis. We ought to compete on ideas and ideals. And the people shouldn't have to sit back thinking about how would I raise $15 million if I wanted to serve -- I don't see how that's good. How's that helping the country to pump more and more money into the process? LEHRER: Senator McConnell? Sen. McCONNELL: Yes, well of course that hasn't happened, it isn't going to happen. The only thing that's driven the cost of campaigns is the cost of television. And one of the proposals that I've advocated and my friend from Oklahoma's willing to accept, is a meaningful discount rate for advertising for political candidates during the last 60 days of the general election. That's dealing with the real problem. You don't deal with the problem by putting a clamp on how many people can participate in the process. And so we have a fundamental difference here about how to get at it. And I think we'll have to revisit this issue on another day with a measure that is not designed to tilt the playing field in the direction of one party vs. the other. LEHRER: Gentlemen, I think you have at least convinced me that you have a fundamental difference. Let's go now to what's going to happen. Now, there's supposed to be a closure vote to stop the filibuster tomorrow. Is that right, Senator Boren? Sen. BOREN: That's right. There'll be a vote at 10:00 o'clock in the morning. We already have a majority of the people in the Senate for our bill, 52 people have authored the bill. The Harris poll says that over 90% of the people in the country think campaign spending is going up too much and they want something done. The question is will the minority -- once again -- and I don't use this in a partisan sense, because there are some Republicans like Senator Kasselbaum and Senator Stafford, Senator Chaffee, who have been supporting these efforts -- will the minority be able to keep us from voting. That's all we want is a chance to vote when we have a clear majority in the Senate that wants to move ahead with reform, then we can consider Senator McConnell's amendments. But we don't know why they're afraid to let us vote. LEHRER: Senator McConnell, why a filibuster? Why require a two thirds vote on something like this? Sen. McCONNELL: You know, we feel strongly in this country about protecting minority rights. The United States Senate, from the beginning of our country, has been a body in which minority rights have been respected. And anytime in this body that you have a significant number of senators who feel strongly about an issue, the rules provide for an opportunity to prevail. And filibusters have been conducted by both liberals and conservatives on issues that they felt strongly about over the years. We feel strongly about this, we think it's important for America that this law not be changed in the way that S 2 would change it, and we will prevail, I confidently predict, in the morning. LEHRER: Gentlemen, let me ask you both this question: Are you concerned at all as United States Senators about the image that has been projected in this last 24 hours? Republican senators running down the hall to keep from being arrested by Capitol policemen, Democratic senators ordering Republican Senators to be arrested and brought into the chamber, does that bother you, Senator? Sen. McCONNELL: Absolutely. We're getting right up to the edge of civility here. Right up to the edge of chaos. And I hope we'll pull back from that, don't you, Dave? Sen. BOREN: Well, I hope we won't have this happen. I was sorry that those on the other side walked out so we wouldn't have a quorum to conduct business. I think we ought to stay there and conduct the business. But what worries me even more is I hope it won't divert our attention away from what the fundamental issue is. And that is, are we going to do something about this system this year so that when I go to give graduating addresses to high school seniors I won't have to tell them that if the campaign spending increases at just the same rate, no escalation, just this next ten years what's happened at exactly the same percentage as the last ten years, they're going to have to think about how to raise $15 million if they want to be U. S. senators someday. I don't want to have to tell them that. And I hope that all this controversy over cops and loss of sleep and arrests will not obscure what's happening. And let me tell you, however the vote comes out, this issue's not going to go away. We're going to keep on after it, after it, after it, because we're trustees of the Constitutional system, and we can't let our highest offices be put on the auction block for sale. Sen. McCONNELL: There's no question that the issue is not going to go away. We are going to pursue it on our side of the aisle with true campaign finance reform that includes disclosing and limiting the so called soft money that the Democrats don't want to disclose or limit. To deal with meaningful broadcast discount rates, deal with political action committees. In short, to deal with the real problems in campaign finance, not a measure that is designed to benefit the Democrats and destroy the Republicans. LEHRER: Gentlemen, we have to leave it there. Senators Boren and McConnell, thank you very much for being with us. MacNEIL: Still to come on the NewsHour, Hustler and the First Amendment, the trouble with high schools, and black history. Free Speech Fallout MacNEIL: Next tonight, we explore the significance of yesterday's big Supreme Court decision. By unanimous vote, the court reaffirmed and extended its rules covering free speech. The decision overturned a jury's $200,000 award to the Rev. Jerry Falwell for emotional distress over a Hustler Magazine parody that portrayed him as an incestuous drunk. The decision was written by Chief Justice William Rehnquist, who said that ''graphic depictions and satirical cartoons have played a prominent role in public and political debate,'' and that ''although the cartoon was doubtless gross and repugnant in the eyes of most people, the First Amendment protects even vehement, caustic and sometimes unpleasantly sharp articles. '' Although the court decided the legal issue, it did not end the argument between the Rev. Falwell and Hustler Magazine publisher Larry Flynt over the article.

Rev. JERRY FALWELL: I very much understand the concerns of the court regarding First Amendment protections. And I respect those concerns. I was aware from the beginning it was a very tenuous issue. I personally feel that there are limitations to the First Amendment. And had the court ruled in our favor, I think that there would have been no limitations on respectable and legitimate media. Larry Flynt is not respectable or legitimate media. I felt that just as there is a rule, a law against yelling fire in a crowded theatre when there is no fire, there should have been a limitation to what Mr. Flynt and other sleaze merchants can do in hurting people maliciously and intentionally and falsely. LARRY FLYNT, Hustler Magazine: I think it's a victory not only for me, but it's a victory for everyone. Because if they would of decided that Falwell could collect damages and not prove liable, and all they have to prove is infliction of emotional distress, well, he could sue anybody. Political cartoonists, and some of them have problems today, but (unintelligible) even the ones that were (unintelligible), they would all get (unintelligible), and take the witness stand and say, ''You know, I realize I'm not liable, but I haven't slept for three months, got my family all tore up, and I got emotional stress. '' What a (unintelligible) like that would (unintelligible) it's absolutely unbelievable. MacNEIL: Joining us now are the Rev. Jerry Falwell's attorney Norman Roy Grutman, who argued the Hustler case before the Supreme Court, and Floyd Abrams, a New York attorney who has argued many First Amendment cases before the court. Mr. Grutman, this ruling is being hailed today as a great victory for First Amendment advocates. You were on the losing side, how do you view the ruling? NORMAN ROY GRUTMAN, Falwell's attorney: I share with Floyd Abrams and any sensible American a great belief and pride in the First Amendment. But I believe that the First Amendment is not monolithic, so as to keep protection only to the interests of the media. I deplore the fact that the court saw the case as they did, deciding unanimously in favor of Hustler, since I thought that there was ample protection already carved out for the media. And yet they could have protected public figures against the kind of vile abuse which was called an ad parody only by lawyers, but which Mr. Flynt admits was created by him for the sole purpose of -- as he put it -- assassinating the reputation of Jerry Falwell, knowing that what he said was false. I think that this is to the impoverishment of America, because there now is no protection for public figures against media attacks. And that means that those people willing to enter public life are going to have a lower and lower level. People will not want to become political candidates, or they're going to be subjected to this kind of abuse in their private lives. In looking at the roster of lackluster people running for president now, I wonder if the republic survives who will we have the next four years? Larry Flynt for president? There are so many deterrents and so many bad things about this case, I'm sorry that the courts said that because they couldn't draw lines, some bright line that in red would differentiate those cases that could be protected from those that could not, they decided as they did. And I think that that's a decision which I deplore, but I think the question is closed for the next generation. MacNEIL: Mr. Abrams, from your point of view, does this decision impoverish America, the republic? FLOYD ABRAMS, attorney: I don't think so. I think it's a welcome ruling by the court. I think it's a marvelous opinion in fact. It seems to me that it's one thing to say the First Amendment is not absolute, we have liable law, we have privacy law. If you make a false statement of fact about a public official, you can be held liable for it if you knew it was wrong or had real doubts about it. But the idea of saying that even if you did not make a false statement of fact that you could still sue on a theory of what you said was really so outrageous and intended to harm someone emotionally, that you ought to be able to recover, is just what the court rejected. And I think just what it should have rejected. I think it's a very important thing that we not have to draw lines between Herb Block portraying Richard Nixon crawling out of a sewer as he did for many years -- MacNEIL: The cartoonist in Washington -- Mr. ABRAMS: -- the cartoonist in the Washington Post -- Abraham Lincoln, caricatured as an ape for many years, while he was president, and the awful things they are sometimes that Larry Flynt does. If a law can't draw a line to make it predictable, to make it work, to allow publishers to know what they're allowed to do, then they shouldn't draw at all. And I think that's what the court said. MacNEIL: Mr. Grutman, one piece of analysis today in the New York Times, of this decision, said that what you were trying to do, and the lower courts bought, was to do a kind of end run on the First Amendment. Mr. GRUTMAN: No, the First Amendment protects reputation. That is to say the rights involved in what harm you may suffer in the way other people view you. But for 150 years, in the common law of the United Kingdom and ourselves, it was protection for your own personal injury where someone intentionally injured you by making a statement knowing that it was false and for the calculated purpose of injuring you, and that statement was sufficiently outrageous, the law until yesterday offered redress. The media now has had carved out around it an indice which says, as CBS said last night -- I was startled at people like Dan Rather and Morley Safer said -- the irresponsible press, the Larry Flynts, the people of the world who ought to have been deterred, and surely the Falwell case presented a picture -- short of seeing the Virgin Mary and Jesus in a light emitting diode in copulation on a billboard, I cannot conceive of anything more outrageous, so that people could have said is the jury did, the district court, the court of appeals, this kind of behavior is so bad that no civilized person ought to have to tolerate it. Instead what the Supreme Court did was they painted a fresh coat of gilding on the Constitution in the name of Larry Flynt, which is used by the press to say, ''We, the press, the media, who create public figures, are now in a position where we can trash anybody with impunity. '' MacNEIL: But isn't there a distinction here, which the court drew, between statements which are untrue, which the publisher expects to be believed by the audience, and those satirical, or in this case, a parody, which are not expected to be believed, not expected to be taken seriously. Mr. GRUTMAN: The idea that this was an ad parody not to be taken seriously was admitted by Larry Flynt in this case, not to be his purpose in publishing it. It was put on by lawyers in minuscule type. And the jury decided that the fair way in which they should be viewed, it looked so real that if it looked like my sister and walked like my sister and sounded like my sister, it looked like a real Compare ad. Up until yesterday's decision, Rev. Falwell had a justifiable right to assert his grievance against Flynt for doing something which Flynt said in a videotape deposition he knew was false, and he published it solely with the intent of injuring Jerry Falwell. Garry Trudeau or Herb Block or political cartoonists and commentators, have ample breadth within which to make their caustic criticisms of public figures, but this kind of an intrusion of that type was until yesterday something that deserved redress. MacNEIL: But Justice Rehnquist, Mr. Abrams, who wrote the opinion, the new Chief Justice, who has not been known as the most liberal justice towards First Amendment cases, actually wrote that he was worried that cartoonists and others would not -- might suffer from restriction if the decision went the other way. Mr. ABRAMS: Yes, I think what he was saying was we have a word, the word is outrage. What shall one do with it? If you say that because something really is outrageous, really, really is outrageous, a jury is affronted by it, an individual feels terribly harmed by it, what have we said yet? We've just used words. And the problem -- Mr. GRUTMAN: (unintelligible) reasonable care -- MacNEIL: Just let him finish -- Mr. ABRAMS: Yeah, but in the First Amendment area, it's especially important to use words with precision so we can predict in advance what we can print and what we can't print. There is no way -- and that is what Chief Justice Rehnquist said -- there is no way to write an opinion which affords any predictability if what you say is that the concept here is this outrageous, ''Enough!'' so that we are shocked enough so that we shouldn't be allowed to print something. That doesn't tell me anything. MacNEIL: What about Mr. Falwell's point? We just heard him say that if his side had won there would have been no limitation on what he called ''respectable and legitimate media. '' Mr. ABRAMS: Well, first I don't think it's true. But let me answer it in a broader way first. The First Amendment can't just protect the respectable and legitimate media unless the courts are prepared to define what the respectable media is. We don't live in that sort of country. We pay a price. I understand. We always paid a price of allowing more speech because we think more speech is a good thing for people to have. The price tag of that is having people that are irresponsible speak and not respectable speech. Generally, throughout our history, we've paid that price willingly. And I think what the court did yesterday is just a continuation of that unwillingness to say, We're going to say who is respectable, we're going to say who is outrageous. That is something this country has not done historically and ought not to. MacNEIL: Want to react to that? Mr. GRUTMAN: Yes, I think that we deal every day in the law in drawing lines. It's not an all or nothing proposition. But that's what the court has made it so far as public figures are concerned. There surely -- until yesterday, the Supreme Court said deliberate, calculated falsehood does not enjoy constitutional protection. Deliberate, calculated falsehood is precisely what was admitted to have been done in this case, although lawyers dressed it up under all the majestic words of the First Amendment, and so it has now been declared that anybody who's a public figure either has to get out of the kitchen or this goes with the territory. I -- MacNEIL: What about that? Before this case came, and probably one of the reasons this case attracted a lot of interest in what the court might do, there has been in some circles anxiety that since the Sullivan Rule, under the New York Times case years ago, that there has been much less protection for public figures than there was in the past. You don't only -- well, you tell me -- you don't only have to prove that something was false, you had to prove that the people knew it was false when they published it and that they did it recklessly and no regard for the (unintelligible). Very hard -- Mr. ABRAMS: That was the law day before yesterday, and it is the law today. Nothing has changed. MacNEIL: So what -- you're saying and Mr. Falwell's saying public figures don't have any protection? Mr. ABRAMS: Well, they do have protection, they have less protection than public officials do elsewhere in the world. Because we have a First Amendment that people don't have elsewhere in the world, because we treasure our speech more than most countries do elsewhere in the world. But the law is that public figures may sue, we make it hard for them to win. They have to prove that something was said which is a false statement of fact, and that it was made with knowledge of falsity, or with serious doubts about truth or falsity. That's what the courts have said. I don't think we've seen any diminution in the quality, notwithstanding what Mr. Grutman said earlier, in the quality of people that are running for office, or held themselves out for office, certainly not because of New York Times against Sullivan. And I think it's a good idea that we've had it and we should continue to. MacNEIL: You mentioned the piece on CBS last night. Morley Safer said in that piece that this is going to result in a whole lot more publication of scurrilous material. What is going to happen to the marketplace in your view now? Mr. GRUTMAN: In my view, I think Mr. Safer was absolutelycorrect. I think we're going to see more scurrilous and irresponsible attacks by the irresponsible press, the National Enquirer type of publication, or Hustler Magazine or others,directed at public figures. Not about them as political figures, but about their private lives, and you will see the most outrageous things. I must say that if you take a look at what the court has done -- MacNEIL: Public figures have successfully sued -- Mr. GRUTMAN: No, they have not. MacNEIL: -- magazines -- for instance -- Mr. GRUTMAN: Westmoreland failed -- MacNEIL: -- Carol Burnett -- Mr. GRUTMAN: That is an aberration. If you trace the pattern, it is my view as a lawyer who has tried many of these cases both for plaintiffs and defendants, that the appellant judges have killed the tort of liable. They have made it absolutely dead and buried it as far as public figures are concerned, by investing it with all kinds of technicalities: clear and convincing evidence, truth of falsity and all these various other things. They have now taken the tort of the intentional infliction of mental distress by media and they have buried that. And so as we sit here, I can only say in conclusion that I think the question's closed, but we'll have to wait -- MacNEIL: We still have half a minute -- is there going to be a huge opening of floodgates of material like this as a result of this decision, and will it embolden what Mr. Falwell called the respectable press? Mr. ABRAMS: I don't think so. I don't think on a practical level it will have that sort of effect. If this case had been lost, if Mr. Grutman's client had won, I think we would have seen a different press in America because we would have had an explosion of lawsuits against satirists, parodists, cartoonists, comedians, people that make fun of other people and understand when they do it that people may be hurt. We didn't have that. We're not going to have that in this country. It's a good thing. MacNEIL: Mr. Abrams, Mr. Grutman, thank you both for joining us. Debatable Education LEHRER: Education Secretary William Bennett went to his wall charts again today to report on the nation's schools. It is the subject of our next focus segment. It will be conducted by Judy Woodruff. Judy?

JUDY WOODRUFF: It was a gloomy picture Secretary Bennett painted, gloomy in terms of test scores, in terms of willingness to reform, and in terms of taxpayers getting their money's worth. And it said for the second year in a row there was no improvement in standardized test scores, graduation rates and other measures, despite some $170 billion in public school spending. We will talk with Secretary Bennett and with two education experts after this background report from correspondent John Merrow. JOHN MERROW: Bennett unveiled what has become known as the Wall Chart at a press conference this morning. The state by state comparisons indicate that the dropout rate has gotten slightly worse. Sec. BENNETT: Students drop for all sorts of reason. Students drop out of school because of drugs, students drop out of school because they get pregnant, students drop out of school because they see better opportunity elsewhere. The thing I suppose which we feel the education reform movement must address more specifically is a lot of students drop out of school because it's boring, it's uninteresting, because nobody knows their name and nobody seems to care about what they're doing. MERROW: The school reform movement caught fire when this report appeared in April 1983, with its grim warning that public schools were about to drown in a rising tide of mediocrity. Less than one year later, in January 1984, President Reagan and Secretary of Education Terrel Bell presented state by state comparisons for the first time. TERREL BELL, Secretary of Education, 1984: Between 1972 and 1982, test scores of college bound high school seniors went down an average state, and only in the District of Columbia was there an increase in the SAT test scores during that time. MERROW: Politicians, reporters and the general public reacted enthusiastically, jumping at the chance to compare graduation rates, standardized test scores and spending per student. In the years to follow, Bell and his successor William Bennett, have improved date collection and added new categories. The first chart had only 38 categories. Now there are two charts and 69 categories. Former Secretary Bell recalls being called a traitor and a fifth columnist by some educators when the first wall chart appeared in 1984. Secretary Bennett's gotten his share of criticism as well. Why the anger? Both secretaries say it's because educators don't like close scrutiny and don't want competition. For their part, educators and some testmakers as well complain that the Wall Chart drastically oversimplifies the complex business of schooling. One test maker told Congress that using SAT scores for group comparison, which the Wall Chart does, is ''neither appropriate nor scientifically valid. '' The criticism hasn't had much effect. The annual Wall Chart press conference has become a major media event, and an opportunity for Secretary Bennett to praise what he approves of and to take a poke at what he does not. Sec. BENNETT: The blob refers to that part of your educational budget which is nonessential, non classroom personnel. And we see in a lot of states that whatever enrollment, the blob increases. We saw it in a review of Chicago, we saw it in a review of California. If the number of students increase, the size of the blob increased. If the number of students decreased, the size of the blob increased. Like the blob in that old movie, it grows whatever happens.

WOODRUFF: Secretary Bennett joins us now live here in the studio. Secretary, thank you for being with us. What do you think was the most significant thing that came out of your report today? Sec. BENNETT: Well, I think probably the fact that we do not see any marked improvement in the scores of our students taking these two important examinations. WOODRUFF: And how discouraging is that to you? Sec. BENNETT: Well, it's very discouraging to me, because as we said we are now spending record amounts on education, $170 billion on elementary and secondary education. We're spending twice as much in real dollars as we spent 20 years ago, and the results are not as good as they were 20 years ago. Not as good by a long shot. That's very depressing. We are in a period of educational reform. The American people have paid and paid and paid for education. They're expecting better results. They should be getting better results. Now, there is one or two bright sides to this story. More students are taking the SAT and ACT exam, which is good, because that suggests more students are interested in going on to college and with more test takers we didn't see a decline. Second, we have seen an improvement in scores of minorities and in blacks in particular. But those scores too are still way too low. WOODRUFF: Well, on the test scores, John Merrow just referred to the criticism that using these for group, to measure group performance is ''neither appropriate nor scientifically valid. '' Now, this is what some of the critics have said. How do you respond to that? Sec. BENNETT: Well, I think that they're looking at the results and they're deciding they don't like the procedure. The rather snippy comment that was made, I would respond to by saying by any reliable index at all, whether we use the Wall Chart or whether we use international comparisons, you will see that our performance is not what it should be. We concede the imperfect quality of the Wall Chart. It's bound to be when you're measuring anything that big, comprising that many students. But it's the best instrument we have. We've proposed a better instrument, a better base for a future wall chart, or report card from the National Assessment for Educational Progress, proposing to spend about $25 million to have a better test so we'll have better results. But if people don't like the results based on the data we used for the Wall Chart, they can pay attention next week when the international associations release their studies comparing American students. The news is not good. WOODRUFF: Who is to blame for the situation not getting any better than it has overall? Sec. BENNETT: Well, it all depends. A lot of us are to blame. I think principally, the problems are these, Judy. We do not teach the curriculum in high school that we should. If you take the recommendations of the nation at risk, the kinds of courses that student should take, a small minority of our students are taking those courses these days. We proposed a curriculum, James Madison High School, a small minority of students are taking those courses today. And if you take those courses, chances are your scores will go up by about 50 points on the SAT. Second, I think we are limiting access to the teaching profession for many qualified people, because of licensing rules that don't make sense. And third, and most generally, we don't have accountability in the system. If you do a good job, you tend not to be rewarded. If you don't do a good job, you tend not to pay any penalty. We need more accountability. WOODRUFF: Mr. Secretary, stay with us. The test scores that Secretary Bennett focused on measure who is best prepared to attend college. But there are many other sorts of tests given to public school students from the earliest grades all the way to high school. And these test results show something different, far above average performance by many school districts around the country. That has provoked Dr. John Cannell, a pediatrician and school reformer. He charges those scores are too good to be true. Dr. Cannell joins us from Public Station WSWP in Beckley, West Virginia. On the other side, defending the public schools and their testing program is Gordon Ambach, executive director of the Council of Chief State School Officers. He was formerly superintendent of the New York State Public Schools. Dr. Cannell, exactly what kind of test scores are you referring to? Dr. JOHN CANNELL, Friends of Education: Well, I'm referring to the actual report card that the teachers and the principals and every school system in every state uses. Those are the Stanford Achievement Tests, or the Metropolitan Achievement Tests, or the Comprehensive tests of basic skills, or the Iowa test of basic skills. These are nationally normed, commercially available achievement tests that are used. Every teacher and every principal and every superintendent in this country knows whether the children they're teaching are above average, or below average and whether or not they've improved over the years. And these test scores give a very different picture than what Secretary Bennett's talking about. WOODRUFF: What is it about them that you find so hard to believe? Dr. CANNELL: I became very suspicious of them when I noticed -- and I'm a general practitioner, not a pediatrician -- but I became suspicious when I noticed many of my patients who were very behind at grade level, did very well on their standardized test scores. And then Kentucky released their test scores, and they were above the national average. And I wondered if Harlan County, Kentucky could be above the national average, who was below? So I called one of the test manufacturers and I pretended to be -- I shouldn't have done this -- but I pretended that I was an educator, and I asked, I wanted to buy their tests. And I was concerned about being below average. And the woman I talked to just laughed and basically guaranteed me everybody's above average. But much more importantly, she told me when I expressed concern whether or not my scores would increase, she said something that I didn't understand, and she said, ''You're not going to switch questions every year, are you?'' And I said, ''Well, of course not. '' I didn't know what she was talking about, but I was suspicious and our organization, the Friends for Education, conducted a survey, and we obtained the test scores from all 50 states. These Iowa Test of Basic Skills and Stanford Achievement Tests, and we found something very, very interesting, and that was that every state in the union is claiming to be above the national average. And that 70% of the children tested with these commercial achievement tests are testing above the national norm. And that about 90, even 95% of the school districts in this nation think that they are above the national norm. And so Secretary Bennett is concerned that our schools haven't improved, our schools think they've improved, our teachers think they've improved. They think they've improved a lot. They think they're all above average. How good does he want us to be? We're all above average. WOODRUFF: Let's bring Dr. Ambach into this. How could that be, Dr. Ambach, that all the schools, all the states say they're above average, most of the districts think they're above average? Dr. GORDON AMBACH, State School Officers Council: Well, I'm not certain that all of them say they're above average. But you can have a large portion of the school districts -- WOODRUFF: Well, that's what Dr. Cannell just said -- Dr. AMBACH: Yes, I know that, but I'm not sure that's correct. But you can have a great many school districts and a great many states that are reporting above average when they're talking about norms which in fact were set at an earlier time. Dr. Cannell's problem is that he's worried about too much success. The fact of the matter is that we've had an increase in performance of students. When you relate that fact to earlier norms it's clear in the testing business that you can find your students have in fact improved in performance because related back to earlier years they're scoring at a higher level. WOODRUFF: But what about the point that most of the districts are saying they're above the average? How could that statistically be? Dr. AMBACH: It can statistically be. Let me give you an analogy with the Olympics. If you take the 1980 ski jump, and the average was 80 meters, but then you take '88, and the average is 85 meters, you've -- and you've got all of the skiers jumping more than 80, you've got more of them over that average of 80, that you had back in '80. WOODRUFF: What about that, Dr. Cannell? Dr. CANNELL: Well, that implies that there's actually been some real improvement. And there hasn't. I mean, our children don't know how to read any better than they did ten years ago, and our children, 80% of young black adults in this country can't read a bus schedule, can't balance their checkbook, can't use an almanac. The norms that Mr. Ambach was talking about are very interesting. You see, you can buy any norms you want. You can buy local norms, national norms, low socioeconomic norms, high socioeconomic norms -- WOODRUFF: Wait a minute, are you saying that each district can decide which norm it wants to use, is that it? Dr. CANNELL: Any school district that uses these tests can determine beforehand whether they're going to be above the average or not by selecting the norm they want, and secondly, if you use these tests and you don't change questions every year -- and very few districts change questions -- if you don't change questions, you're guaranteed to improve. Because you see, Judy, these questions are the same year after year. In Maryland this year, the third and the fifth grade teachers in Maryland are administering the same test questions that they've administered for five years in a row. The kids don't see the questions twice in a row, but the teachers do, and it's the teachers who are being tested. WOODRUFF: Dr. Ambach, I want you to respond to that, and then I want to go to Secretary Bennett. What about that point that the questions are not changing? Dr. AMBACH: We're talking here about tests used all over the nation, and not just in some district in Maryland or some district in New York. And the issue is not whether in one school they have used the same form three or four times, but what's the general practice across the country. And the fact is there are multiple forms of tests, and they get normed back to earlier year, and what the doctor's really been finding is that on those references back to the earlier norms, in fact the youngsters have been learning more in the recent years. It troubles him. I'm not sure why it should trouble him. Now, should the tests be continually renormed? Yes. But that's not to deny the point that there's an improvement. WOODRUFF: Secretary Bennett, which side do you come down on? Sec. BENNETT: Well, look, it seems to me there are others way out -- Dr. Cannell has identified a very serious problem, I think. And there are two things we can do. First of all, we can have, make a better effort at truth in testing. One of the things that we wanted to do, prompted by Dr. Cannell's work, is to issue a kind of consumers' guide to tests. If students are improving over time on the same tests, that may be cause for some comfort. But if it turns out that the teachers have had that test for five years, they know what the test is going to be -- WOODRUFF: So they're teaching for the tests -- Sec. BENNETT: -- they teach specifically to the tests, then our comfort and our confidence has to be qualified certainly. I'm also sensitive to the point, and agree with the point, that we put out something like our Wall Chart, which is based on different tests than the ones Dr. Cannell is criticizing, and some people will seek to take cover by saying, But look, we use this test, Stanford Test, and our kids are doing better. Let me suggest a way out of it, in which I think we all agree. We propose, I mentioned earlier, the National Assessment of Educational Progress Test, which will be given around the country, which would not suffer from the kinds of problems Dr. Cannell's identified, which Gordon Ambach I believe is a strong supporter of. And we would have a reliable index for how kids are doing around the country, as well as in each state and in each district. WOODRUFF: But that's just a proposal at this point? Sec. BENNETT: Yeah, but I think we can get it. And it's clearly something we need. It's the same kind of test, or based on the same kind of norms that SAT and ACT are, but it would involve kids from different grades. That's the way out of this thing. WOODRUFF: Dr. Cannell, what's your assessment of the Wall Chart, particularly the reference that the secretary's making to the SAT, the ACT's, the college entrance tests? Dr. CANNELL: Those tests are interesting, because only half the children who take them are allowed to be above average. And you can't get hold of the test questions in advance. In fact, if you do, it wouldn't help you because they change them every year. But my point is that this again, this is the educator's Wall Chart, these standardized commercially available tests are what the educators think is accurate. And how can Secretary Bennett ask our education to improve when teachers in Alabama are sitting there saying it's not our problem, we're above the national average. And in Arkansas the same thing, all over the country they're saying the same thing. Sec. BENNETT: Well, there's two things. First of all, I can, as I did today, tell them to ponder, indeed to chew on the results of the Wall Chart. This should qualify people's confidence. Second, we can put out our guides testing so the public can better understand how to interpret those results. WOODRUFF: Dr. Ambach, are we putting too much emphasis on tests over all, is that possible? Dr. AMBACH: Well, it could be a possibility, but I think the most important part of the Wall Chart, and the whole discussion of testing right now, is that we are in much better shape than I believe the Secretary thinks we are. He had two Wall Charts today. One which is a five year span and one which is a two year span. Now, the five year span shows SAT's going up by 13 points, ACT's going up, advanced placement enrollments going up, and you can corroborate these changes by the standardized tests, the criterion reference tests in the different states are going up, the (unintelligible) results over the last several years have gone up. It's not a single indicator. We've got lots of evidence of increases. Is it enough? No. Not at all. But the trend is in the right direction. It's part of the reform effort, and it needs to be pushed. WOODRUFF: You get a quick last word, Secretary Bennett. Sec. BENNETT: The trend is in the right direction generally, but it's been flat for the last three years, and it's still 75 points what it was 24 years ago. WOODRUFF: All right. Gentlemen, we're going to have to leave it at that. Dr. Ambach, we thank you for being with us. Secretary Bennett, and Dr. Cannell in West Virginia. Thank you all. Black History Month MacNEIL: February is the month when the achievements of blacks in American history get special attention. Tonight, we welcome a new essayist, Clarence Page, columnist for the Chicago Tribune, who offers some thoughts on those achievements.

CLARENCE PAGE: For some of us, history is a thing of the past, admired like we admire great statues in a park, pushed into the background of our daily lives. To others, history is here and now, all around, in the present. Look for example at that traffic signal, suspended like a silent sentry. It has a history. Or those street lights overhead, ready to turn night into day. Those are a part of history, too. How about those electric powered elevated trains moving along their tracks like silver snakes. All of these inventions have a history. And all of their histories involved black inventors. The first electric traffic signal, for example, was patented by Garrett Morgan in 1923. It was Granville Woods who invented the third rail system, to power electric trains. Thomas Edison invented the light bulb, of course, and Lewis Latimer improved it and paved the way for the insulation of the first electric street lights. We know these inventors were black because in those days patents were labeled according to the race of their owners. Many aspects of American life were so labeled. Whites, Negro, Colored, Colored Waiting Room, Colored Restroom, Colored Water Fountain. Such plainly visible signs of legal segregation are gone now. They're a part of history, too, a sad part. Visible barriers are not acceptable in the melting pot of today, even if some invisible barriers remain. It was to remove those invisible barriers that a black scholar named Carter Whitson founded Negro History Week in the 1920's. He wanted to change the thinking not just of whites, but also of blacks. If you can control a man's thinking, he wrote, you do not have to worry about his actions. You do not have to tell him to stand there or go yonder. He will find his proper place and stay in it. You do not have to send him to the back door, he will go without being told. Why bother with history? Sportscaster Jimmy 'The Greek' Snyder recently showed us how embarrassing and costly an ignorance of history can be. His widely covered locally misinformed views on athletic superiority, racial breeding and big five, showed how an unbound view of black achievement can lead to wild notions about black history. But when old traditions are broken, new history is made. Before Doug Williams, only white quarterbacks played the Super Bowl. This time, when the crowd cheered, visible barriers fell, and another hero entered the annals of black history. American history. Other victories are less visible, less celebrated. But the victories of black history teach an important lesson about the durability of the human spirit, the resiliency of the human soul. Across the nation this month, Black History is receiving special visibility. This exhibit, for example, in Chicago's Museum of Science and Industry, gives visibility to black scientists and mathematicians. Some people might call this special treatment. Maybe it is. Some might say that everyone should be regarded the same, that we should be colorblind when we recognize achievements. Well, maybe not. It is often said justice should be blind, but history should have its eyes open, wide open. One cannot be colorblind to history without being culture blind, too. Black America's past should be studied, but as an integral part of America's past. Not to stir anger or to set us apart, but to help us to face our future, eyes open, together. Recap LEHRER: Again, the major stories of this Thursday. Panama's military leader General Manuel Noriega was fired today by the country's president. It is not know whether Noriega will abide by that order. Secretary of State Shultz met with Israeli leaders in Jerusalem and said the time was ripe for new Arab/Israeli peace talks. Israeli soldiers shot and killed two more Palestinian protestors on the West Bank and wounded four others. And this afternoon, a U. S. Army helicopter crashed and burned near the town of Chico, Texas, northwest of Ft. Worth. At least 8 passengers were killed and several others severely burned. There were at least 19 people onboard. Good night, Robin. MacNEIL: Good night, Jim. That's the NewsHour tonight. We will be back tomorrow night. I'm Robert MacNeil. Good night.