The Breakfast Table

Re: Calvin and Hobbes influences the "Bong Hits" decision

tonto_goldberg — Thu, 20 Sep 2007 13:02:36 GMT

CaLawyer:
a bright line drawn in the wrong place is better than having an invisible line that nobody can discern.

I would submit to you that a bright line drawn in the wrong place encourages more constitutional mayhem, while an invisible line only illustrates that the Supremes failed or declined to address the issues.

Re: What "school evironment"?

trapdoor — Thu, 28 Jun 2007 11:29:16 GMT

It is true that one may not just walk into a school and "hang out" there, but that doesn't mean it isn't a form of public forum. Isn't one of the values that our schools are supposed to be teaching is tha each idea can find its own place in the marketplace of ideas? That would indicate that schools should be areas of open exchange of such ideas -- fora, by any definition.

I don't want this to break down to a discussion of specific issues, such as the way Christianity is treated in public schools today, I'd rather stick to the more general issue of free speech in public schools (even though speech IN THE SCHOOLHOUSE is at best an addendum to SCOTUS misguided ruling -- the student was of legal age and was NOT in the schoolhouse). I could provide examples of such discrimination, you could probably provide counter examples, and the debate would not move forward the larger topic of free speech.

I have the temerity to believe, based on talking to recent graduates of the high school I attended, that actual education -- in terms of the knowledge of actual facts, etcetera, is somewhat diminished compared to when I attended the school 25 years ago, when free speech (at least as exemplified by the ability to wear my JD t-shirt) was more open. In the same way the institution could have suffered death by a thousand cuts, as you describe, instead free speech is suffering death by a million cuts. Apparently, you and SCOTUS are unaware of the danger to society this presents. If not stopped, it can lead over a century or so to the loss of all liberty in this "land of the free.""

Students in school are already deemed to not have fourth amendment rights, were already limited in their use of their free speech rights on campus, and now are also limited in the use of their free speech rights OFF campus. So what we're going to have is multiple generations of people who have grown up without the experience of these freedoms -- how are they going to respond to authority later in their lives? I would argue that they will be docile to authority, because that is what they have been trained to be. While docility is a great trait, it isn't a trait that is great for fighting tyranny. "The only thing needed for the triumph of evil is that good men to do nothing," -- Edmund Burke.

Docile people do nothing, but I suppose they're respectful. (Frankly, I've never understood how wearing a suit shows "respect." Mostly, it shows you can afford a suit. Better a good lawyer in rags than an evil one in a suit, but that, too, is outside the scope of this conversation.).

Re: What "school evironment"?

CaLawyer — Thu, 28 Jun 2007 01:43:25 GMT

The trouble with saying "its a school, not a public forum" is that a school is, in fact, a public forum -- all educational venues are public fora.

Sorry, but no, they are not. I can't simply walk on to a K-12 public school campus and hang out there. I can't go into a classroom and demand that I be heard. I don't have the right to dictate what gets said in a classroom, or to even be there.

Viewpoint discrimination is a genuine problem, because even if the social value you want taught to your children is the one that says "gay is OK," that may not be the value desired by another parent.

But so what? The problem is that no matter what is taught, some parent is always going to object. I honestly believe that the public schools go to great lengths to avoid "teaching" anything that rational people are likely to find objectionable, or for which there is honest disagreement. Not everyone, though, is reasonable. The gay issue is a good example. You would think that no one would object to a school teaching tolerance for gay people. Given that gay students are routinely taunted, humiliated, bullied, terrorized, and even assaulted by other students, it seems like a mighty good idea for a school to try to instill some basic respect for the worth of all people, gay or straight. And yet, many people still object, claiming that to teach that it's not okay to denigrate gay people is to somehow promote the "gay agenda".

I could go on. Some people object to the teaching of evolution because they believe that to do so denigrates religion. Some people object to a literature class assigning kids to read The Adventures of Huckleberry Finn, claiming that the book perpetuates racist sterotypes. And of course some people object to teaching basic facts about human sexuality, claiming that if you merely point out to kids that condoms, when used properly, go a very long way towards preventing pregnancy, this will someone encourage kids to have sex. Just as a "heckler's veto" cannot be permitted, a few irrational parents cannot be allowed to "veto" a community's educational needs for its children. If the school district's cirriculum does not reflect the values or educational desires of community, then the community can elect a new school board. But you don't get to undermine the educational process on a school campus. If the school promotes a message of tolerance and respect for all people, you don't get to go on campus and promote a contrary mesage of intolerance and hatred.

Although I'm not among them, the fundamentalist Christians are right when they say our schools teach tolerance for anything but Christianity.

I'm surprised you've bought into this red herring argument. If virtually all of the students, teachers, and administrators of a school are Christians, do you really think there will be will be a lot of intolerance of Christians on campus? Maybe it's different where you live, but my observation is that it has historically been the small minorities in a community, not the large majorities, that suffer the "intolerance" of the community, since people generally don't discriminate against themselves. In an overwhelmingly majority Christian community, teaching "tolerance" for Christianity seems, to put it mildly, quite unnecessary. It would be kind of like if they decided that the overweight, handicapped, socially ackward, and and foreign kids were told in school, "Now, children, it is important that you show proper respect for the pretty and popular kids, because they're people too. We shouldn't tease them for being so perfect" If I were one of those kids, I would think to myself, "Wait a minute. I think they've got it backwards. We're the ones who get picked on. Why aren't they teaching respect for us?"

Well, I wouldn't have much credibility if I were to suggest that your Jack Daniels T-shirt, in and of itself, caused you and your contemporaries to "fail to become educated". However, I am sure you are familiar with the phrase, "The Death by 1000 Cuts". When institutions fail, it isn't usually due to one singular event. An institution fails because it slowly bleeds to death.

Our schools aren't doing very well, not as well as they should anyway. I believe that a large reason is a lack of respect by students (for which I blame the parents). A teacher, even an excellent one, cannot teach a classroom full of students who have no respect for the school, the classroom, or the teacher. So I think it's important for a school to demand some degree of respect from its students, since it's futile to try and teach students if you don't have that respect. And it doesn't seem unreasonable to me for a school to demand, at a minimum, that students not wear clothes that advocate or promote values contrary to the mission of the school. Since schools activel strive to discourage kids from drinking, it would seem to me that prohibiting the wearing of T-Shirts that contain the product logs of alcoholic beverages is reasonable. Not because kids wearing Jack Daniels shirts will cause the system to collapse, but because it's disrespectful to the institution. As a lawyer, I'm expected to wear a suit when I go to court. Not because the judge enjoys the way I look in a suit. It's because the judge is demanding that I show respect to the court, and the way you show respect to a court is by wearing a suit.

Re: O'Conner, Standing, and other thoughts

pryoslice — Wed, 27 Jun 2007 23:25:31 GMT

Foobs:
On an aside, I think the flaws of the current court can be analogized to the infield fly rule. The infield fly rule exists because otherwise a strict following of the letter of the law would mean a manifest injustice. The belief that judges exist, not merely to apply the law, but to know when to break the letter of the law to pursue justice is one that the current court seems to reject (I will assert, however, that it was one that some earlier courts abused).

Consider this. You're suggesting that the Supreme Court correct manifest injustices in existing law by issuing decisions in some cases going against the existing law on the books. How does that compare with the infield fly rule? That rule is part of baseball rules, adopted by the sport's legislative body. If they decided to repeal that rule tomorrow, for whatever reason, would you advocate that baseball umpires continue to enforce it? Should they decide on the spot the the law is manifestly unjust and run the game by whatever rules they think are right?

The analogy of judges to umpires that some conservatives make is not as bad as it sounds. Both must follow the letter of the law whenever possible. The issue, brought up in the Breakfast Table discussion, is that the actual constitution can be vague and open to interpretation? So is the infield fly rule. I believe it require the umpire to decide whether the infielder does, in fact, in the umpire's judgment, have a reasonably easy catch to make. However, that the only decision the umpire should make. And deciding which side of the vague constitutional lines case facts lie on is the job of the justices. I'd like someone to point out problems with this analogy without arguing for judicial nullification.

O'Conner, Standing, and other thoughts

Foobs — Wed, 27 Jun 2007 18:46:13 GMT

Their are two types of findings that must be made in a court of law: Findings of fact (what happened) and findings of law (what the law has to say about the facts).

The primary purpose of lower courts is to make findings of fact. In the question of the law they are to be guided by the the relevant laws as directed by the higher courts (the Supreme Court is also to guide the legislature and executive with its legal findings). This is the same as to say that the higher courts decide issues while the lower courts decide cases.

that is the essential problem with O'Conner: she provided rulings that were useless to the lower courts and the other branches of the government. She decided cases, not issues, which means she and the court were not fulfilling their function.

That is also the problem with the requirements for standing. It means that the Supreme Court is deciding a case not an issue, as it often means that the ruling is due to something peculiar to the case and not dependant upon the principle (which is an excellent way for the S.C. to shirk their job while giving the illusion of doing it).

In summary: O'Conner was a bad Justice and the current standing rules make for bad Supreme Court work.

On an aside, I think the flaws of the current court can be analogized to the infield fly rule. The infield fly rule exists because otherwise a strict following of the letter of the law would mean a manifest injustice. The belief that judges exist, not merely to apply the law, but to know when to break the letter of the law to pursue justice is one that the current court seems to reject (I will assert, however, that it was one that some earlier courts abused).

Re: What "school evironment"?

trapdoor — Wed, 27 Jun 2007 18:19:46 GMT

The trouble with saying "its a school, not a public forum" is that a school is, in fact, a public forum -- all educational venues are public fora. Viewpoint discrimination is a genuine problem, because even if the social value you want taught to your children is the one that says "gay is OK," that may not be the value desired by another parent. Although I'm not among them, the fundamentalist Christians are right when they say our schools teach tolerance for anything but Christianity.

I sympathize more with the students than with any school administrator. When I was in high school I regularly war a black "biker" t-shirt on which the Jack Daniels label was emblazoned. Today, this would be considered disruptive and barred from the school -- did I or my contemporaries fail to become educated? I think not. Similarly, we don't improve education of people who are going to be citizens of a free society by teaching them conformity during their formative years. When I was 18, I got along fine with the man who was my high school principal -- but I didn't want him dictating how I thought, what political or religious views I held or anything else outside the matters of "does he show up for class? does he study? is he making good grades?"

Although some schools have special problems -- the need for uniforms to end disputes over inner city gang paraphernalia for example -- the schools need to dictate messages or viewpoints should be limited. "Values" education is supposed to take place at home, not at school. If a kids parents, aunts, uncles and cousins are all regular bong users, it isn't up to the school to determine for the kid that marijuana use (or the regular attendence of Methodists services) is right or wrong.

And no one in this discussion has answered my primary question -- if the school administrator's authority extended to the "Bong" message, being displayed by a legal adult off school property, where does that authority end? I once covered a school board meeting where the officials were discussing disciplining kids who had been involved in fist fights outside school property and not during school hours. In that instance, calmer (I won't say wiser) heads prevailed, and the insect authority of the superintendent couldn't be brought to bear on the two young disputants. The fact that the matter was considered at all, both for the individual case and as a matter of policy, shows that my question is not offered lightly. Elected officials, appointed officials, even in a small-town school board will always try to extend their authority -- it appears they now have the assistance of the Supreme Court to do so.

Re: Calvin and Hobbes influences the "Bong Hits" decision

CaLawyer — Wed, 27 Jun 2007 15:42:20 GMT

Dahlia-

Thank you for responding. I love your writing, even though I frequently disagree with your analysis. I am honored that you have responded to something I've written.

I'm afraid I wasn't being entirely "clear" when I criticized the ruling for a lack of clarity. The decision is perfectly clear. Messages that appear to advocate drug use = bad. We all get it.

What is not at all clear is how a school administrator is to approach the next wisenheimer kid who decides to advocate something that is contrary to what the school (and the community supporting the school) is trying to discourage. As a lawyer for a government agency (but not a school district), I find myself in sympathy with people like the principal in this case who honestly and in good faith try to do the right thing, but who are getting no meaningful guidance whatsoever from the courts, and who are subject to being sued every time they offend a student or his parents. As you well know, the law in this area was such a mess that the Ninth Circuit not only found that the student was in the right, but that no reasonable principal would have thought otherwise. There are only one of two conclusions to be drawn from this: Either the Ninth Circuit justices are a band of robed renegades, or the Ninth Circuit was acting in good faith but this area of the law is such a muddled mess that they reasonably concluded that the law was so settled that the principal couldn't have been acting in good faith. I will give the benefit of the doubt to the Ninth Circuit and posit that the law is a mess. And this decision does little if anything to help clean it up.

Here in Southern California, there was a case that made its way to the Ninth Circuit where a kid wore a t-shirt bearing biblical text condemning homosexuality. It was in response to some kind of school-sponsored event or program to encourage tolerance of gays and lesbians. The principal sent the kid home, and of course, the kid sued (Because post-Tinker, any content-based suppression of speech on campus is at least arguably a First Amendment violation). The Ninth Circuit narrowly ruled in favor of the school, and some conservative justices predictably went nuts. They claimed it was "viewpoint discrimination". And they were right. It was viewpoint discrimination. To which I say "Good!". In my mind, a school damn well better discriminate against certain viewpoints. I don't send my kid to a "marketplace of ideas" to be educated. I send them to a school. I want them to be taught certain civic values. For example, I want them to be taught that slavery was, and is, wrong. If someone wants to put forth the notion that the United States ought to go back to enslaving people, he has every right to communicate that idea the public square, on the streer corner, online, in a newspaper editorial, and in any public forum. But he shouldn't have the right to do so on a school campus, the sole purpose for which is to educate minors.

You may disagree with that, but know that if you do, you have no principled basis on which to prevent the kid from wearing his anti-gay T-shirt. You cannot credibly assert that such a T-shirt is per se a "disruption" because that would amount to a heckler's veto. Someone peacefully wearing a shirt that advocates a message that many people find "offensive" is not a disruption.

That is why I, for the first time ever, find myself in complete agreement with Justice Thomas, who would overrule Tinker. It's a school, not a public forum. People are here to learn and to be taught civic virtues, and you're not allowed to interfere with that. Beautiful.

Once again, thank you for reading and responding to my post.

CaLawyer

Re: Calvin and Hobbes influences the "Bong Hits" decision

Prairie Lawyer — Wed, 27 Jun 2007 13:58:06 GMT

I am not a strict constructionist, but I do believe that, as we learned in constitutional law, courts decide individual cases and controversies, and serve best when they do so. Regardless what kind of "broad policy" Justice Thomas (or Justice Souter, or any Justice) would approve, that approval if issued as a majority opinion has the force of law. History is littered will ill-conceived attempts at judicial policy-making tailored to one set of facts (a case) and subsequently awkwardly applied to other sets of facts like an ill-fitting precedential suit. I like bespoke opinions. They limit the damage.

Re: Calvin and Hobbes influences the "Bong Hits" decision

Dahlialith — Wed, 27 Jun 2007 09:33:01 GMT

Cal:

The snow goons point is fabulous but I am not sure the opinion is quite as unclear as you say. Alito and Kennedy refused to sign off on the "educational mission" theory on the grounds that it gave schools too much latitude to suppress speech. That means -- this was Alito's concern -- schools can't punish speech that isn't politically correct, like religious speech. You're right that limiting the ban to illegal drug advocacy is nutty; presumably there are not 5 votes for bans on serious political drug advocacy. It does leave Meth Hits 4 Moses open to debate as it does my hypo from yesterday, "Man I would be sooo high right now if they legalized pot."

Maybe in a year or two Alito and Roberts will be brave enough to overrule everything that annoys them and caselaw will be clear again

Re: What "school evironment"?

LaserBlast — Wed, 27 Jun 2007 04:43:55 GMT

Interesting legal arguments aside, mere ordinary common sense (in shockingly short supply on the current Court) would make it apparent right away that this young man was merely being frivoulous, with no underlying sinister drug message whatsoever. What is non-frivoulous and very, if subtly sinister, is the subverision of our democratic process by former Chief Justice Rehnquist. He's currently having a good laugh somewhere quite warm at the impact of Bush v. Gore, which led to Bush's appointments of Roberts and Alioto. The ramifications will be felt for years, considering how young our two proteges are. Beyond the bitterness I feel about all this weeks decisions and the others that are sure to come, is the realization that he got away with it.

Re: What "school evironment"?

Madd_Libby — Wed, 27 Jun 2007 04:27:36 GMT

He was with the other students that did that.

This is where my disagreement stems. He was on a sidewalk. There were other students AND OTHER PRIVATE CITIZENS PAST SCHOOL AGE on the same sidewalk on the same part of the Olympic torch running route. He'd gathered at that spot because he knew that many residents of the city would be there, as would be the news cameras. He wasn't there because he was trying to meet up with friends.

This would be like saying, the class is taking a trip to washington DC. X is going to be the educational purpose of the trip. Person Y decides not to go on the trip with the school, but is in DC at the same time for personal reasons. If Person Y happens to observe a motorcade along the same strip of sidewalk as the students on the trip, is he now under school supervision and rules?

Re: What "school evironment"?

Textualist — Wed, 27 Jun 2007 01:58:59 GMT

<<1. If he was 18 at the time, he was not a truant. And if the school voluntarily excused all absences for this particualr purpose, he was not a truant.>>

He was 18 and that would make him tardy but not truant.

<<2. Who else would a student normally associate with, but his fellow students?>>

The purpose of the release was to see the torch pass. He was with the other students that did that. How does it differ from a field trip with an opt-out provision?

<<You seem to suggest that the school has authority over the students whenever a school official just happens to be present, whether or not the event is sufficiently related to education.>>

A school official didn't just happen to be there. It was across the street from the school during normal school hours in which the students were released to watch the torch pass and the teachers were "sent" with them in a supervisory role. I somehow doubt if someone was hurt in part due to neglect of the administrators that the school would not be held liable in a case like this.

As the court noted:

"The event in question occurred during normal school hours and was sanctioned by Morse as an approved social event at which the district’s student-conduct rules expressly applied. Teachers and administrators were among the students and were charged with supervising them. Frederick stood among other students across the street from the school and directed his banner toward the school, making it plainly visible to most students. Under these circumstances, Frederick cannot claim he was not at school."

Re: What "school evironment"?

sanchito — Wed, 27 Jun 2007 01:18:24 GMT

1. If he was 18 at the time, he was not a truant. And if the school voluntarily excused all absences for this particualr purpose, he was not a truant.

2. Who else would a student normally associate with, but his fellow students?

3. Does it really matter that the school administrator was there? School is out on Sundays, presumably to allow religious individuals to attend church without competing constraints. So if the school administrator went to church with the kid and didn't like what he said (or displayed) there, should the kid be disciplined by the school? You seem to suggest that the school has authority over the students whenever a school official just happens to be present, whether or not the event is sufficiently related to education.

4. The school is responsible for what happens on its campus or at events solely sponsored by the school (perhaps along with other schools), i.e., althletic events, proms, rallies, etc. I would have agreed with the decision had the conduct occurred at school or at an event that schools normally put on by themselves with the specific purpose of advancing education or entertaining the students. That wasn't the case here. And the student's subsequent drug use is IRRELEVANT! The issue here is free speech, even if he was advocating drug use. I happen to think that he probably was advocating drug use, but it really doesn't matter. He could have just as easily been making a political statement about what some see as absurd drug laws and religious fanaticism in this country.

Re: What "school evironment"?

Textualist — Tue, 26 Jun 2007 23:38:52 GMT

Madd_Libby:

So, if I am to understand the court's ruling correctly, a United States Citizen without a High School Diploma doesn't have full access to his rights if he his near other people who also do not have their diploma. Even if the company of the other people was not sought out by this citizen, and he was excersizing his right to peacably assemble on a public sidewalk, simply because the sidewalk was in view of a school official?

Spectacular.

Your hypothetical pretends that Frederick was just some guy without a diploma that happened upon some students by some cosmic force. In fact, he WAS a student AT THAT SCHOOL, AT A SCHOOL RELATED FUNCTION WITH HIS FELLOW STUDENTS. It would be strange, to say the least, if he could get out of following the code of conduct for HIS school by being truant (i.e. breaking the law).

Re: What "school evironment"?

Madd_Libby — Tue, 26 Jun 2007 23:25:45 GMT

So, if I am to understand the court's ruling correctly, a United States Citizen without a High School Diploma doesn't have full access to his rights if he his near other people who also do not have their diploma. Even if the company of the other people was not sought out by this citizen, and he was excersizing his right to peacably assemble on a public sidewalk, simply because the sidewalk was in view of a school official?

Spectacular.