“The First Amendment Doesn’t Apply If I Actively Misread It”

Occasionally, a public official—a superintendent of schools, perhaps—says something that makes him look like a grown-up. Until you understand the circumstances or read further, that is.

Chip McGee: Not a Constitutional Scholar

Here’s Bedford, New Hampshire school superintendent Chip McGee, commenting on a flurry (get it, flurry?) of tweets from Bedford High students who, shall we say, took issue with his decision to re-open school a day earlier than they’d expected following a major snowstorm: “Kids said some very funny, clever things. And some kids stood up and said, ‘Hey, watch your manners.’ That was great. And some kids—a few—said some really inappropriate things.” So far, so good, yes? A perfectly reasonable commentary on the fact that sometimes high school kids act like adolescents. I know, crazy, right?

And he even starts the next paragraph intelligently: “It’s been a really good exercise in issues of students’ right to speech, on the one hand, and students’ and teachers’ rights to an educational environment that’s conducive to learning. Kids have the right to say whatever they want about me.”

Why yes, yes they do. Ah, but ol’ Chip is a school superintendent, so we can’t expect a full two consecutive paragraphs of sanity. And the old Frank and Nancy Sinatra song, “Something Stupid” wafts through Curmie’s mind: “and then [he] had to spoil it all by saying something stupid like…” Well, not “I love you,” as the song would have it, but this drivel:

However, this does not mean students should expect to be able to make inappropriate comments on social media without consequences [even though the tweets were sent outside of school].

The First Amendment right means you can say what you want, (but) it doesn’t mean that you are free of repercussion. It can’t disrupt what we’re doing in school ... If something disrupts school, and it (occurs) outside school, we not only can take action, we have to.

Once again, Curmie, ever a fan of brevity, contemplates a single word rejoinder. Something to do with equine poop would seem most appropriate. But there may be those who don’t quite understand why, as Patrick at Popehat observes, “Actually, the First Amendment means that students do have the right to say that Chip McGee is an appalling dildo-bat from the privacy of their homes, even on social media, without governmentally-imposed consequences. [Obvious typo corrected; emphasis in original.] 

And, like it or not, a school superintendent is a government official. What that means is that Mr. McGee has the right to be butt-hurt if he wants to be, and he is within his rights to respond in any otherwise legal manner as a private citizen. He could, for example, choose not to hire one of the offending students to babysit or to leave a crappy tip for another at the Pizza Hut; he might even omit a superlative in that letter of recommendation he was writing for another kid. What he cannot do, by any reasonable interpretation of the First Amendment, is to impose penalties on students in his capacity as superintendent for off-campus activity that is in itself not illegal. And that, of course, is precisely what he did. (Exactly what penalties were imposed is unclear—possibly suspension of up to four days, but the school is hiding behind legalisms, as if it really cares about either student privacy or the law.)

That is, if students were to plan a riot, to organize the sale of illicit drugs, or indeed actually to defame Mr. McGee (as opposed to calling him a poopoohead), then he’s within his rights to punish the students involved. Otherwise, no. Here’s Curmie netpal Jack Marshall, lawyer and ethics blogger, on the subject:

The students are absolutely guaranteed of speech without “repercussion,” if the speech is off school grounds and the repercussion is from a school official who takes offense. The school has no authority to punish students for what they post on Twitter, from their homes, none at all, unless it relates directly to action at school itself, such as organizing a school disruption. A student opinion of the superintendent or his decisions? That’s 100% protected speech….

No merely insulting or uncivil tweet is going to disrupt school, and if that’s Chip’s claim, he has a rather tough burden of proof to demonstrate it. Nor does a public school—that’s the state, you know— have the right to effectively censor speech by punishing content. If the speech isn’t libelous or a credible threat, Chip McGee’s remedy consists of asking to speak with the Tweeter and express his hurt and disappointment, or perhaps consulting with the student’s parents, who do have a right to limit online speech when their children are the speakers. As an educator, he might explain to the student that insulting authority figures you must relate to on mass social media is neither wise, civil, nor a good habit, and suggest that an apology is in order. He may not, however, abuse his power and position to constrain the free speech of those students and others by inflicting punishment. [Minor typos corrected; emphasis in original.]

The more perspicacious Curmiphiles will note, perhaps, that Curmie’s favorite blog sites—Popehat, Ethics Alarms, Instapundit—got that way by being always interesting and usually right (“right” in this context means “agreeing with Curmie,” of course: we all have a bit of the Humpty Dumpty about us). They may also notice that Curmie doesn’t really have a lot to add, especially since he’s written about precisely this kind of overreach on numerous occasions in the past: here, here, here, and here, for example.

But we do indeed need to be reminded that the superintendent of schools is likely to be an idiot, that the First Amendment really does apply to high school kids, and that the merely inappropriate is different from the legitimately censorable. There are limits to free speech: incitement, slander/libel, and the like. But there is not constitutional right to warm fuzzies, and Chip McGee is no more or less entitled to freedom from butthurtitude than everyone else.

Curmie is a native of New Hampshire, and knows first-hand that it can get cold there in the winter. Maybe Curmie Award contention will keep Superintendent McGee a little warmer at night. Nah, probably not.

What the Hell Is It with Utah High Schools and Shoulders?

When Curmie took a Costume Design course forty years or so ago, he read an already iconic short treatise by James Laver entitled “The Shifting Erogenous Zone.” The idea was that each era creates a new site for our prurient gaze, with fashion choices (the bustle, the miniskirt, etc.) simultaneously catalyzing and underscoring that change in popular perception. In terms of how this concept plays out in the fashion choices of today’s young women, most of us have pretty well acknowledged the shift of attention from the breasts and midriffs of only a few years ago to the yoga pants-clad backsides of today. That’s because most of us don’t live in Utah, where the source of all adolescent male lasciviousness is girls’ shoulders. Yes, shoulders.

Last year, the idiots in charge of Wasatch High School copped a Curmie nomination for Photoshopping yearbook pictures of high school girls without as much as informing them they were doing so. As Curmie wrote last August:

…a lot of girls’ photos were altered by the administration, probably illegally and certainly unethically. Equally importantly, a fair number of photos showing precisely the same kind of clothing weren’t altered. What that means, if nothing else, is that a lot of girls violated the policy as it could be interpreted by voyeuristic idiots like Wasatch County School District superintendent Terry E. Shoemaker. Seriously, if the examples that have been made available to the public are anything to go by—if they are even accurate but isolated examples—then the problem isn’t with the girls, it’s with the drooling middle-aged men like Shoemaker who get turned on a little too easily by the sight of a little adolescent skin….

….what got the old boys’ hearts a-palpitating wasn’t cleavage (there’s only the slightest hint of that in any of the allegedly offending photos) or a tattoo; it wasn’t a bare midriff or the glimpse of an undergarment… it was <gasp> shoulders. Yes, shoulders. That’s what got awkwardly covered up by the censorious asshats who dropped out of the Photoshop workshop after the first lesson and couldn’t even make their absurd editing look competent.

This year, we get a variation on the theme of perceived shoulderly sensuousness at Lone Peak High School, about 45 minutes’ drive to the southwest of Wasatch.

This dress is just a little too risqué

for the good folks at Lone Peak High School. 

I mean… shoulders!!!

There, 15-year-old student Gabi Finlayson was humiliated by being made to wear a coat over the beautiful dress she had chosen to wear to the Preference Dance earlier this month. The dance, by the way, seems to be a major event in the school’s social calendar, and the dress had been purchased for precisely this occasion on a family trip to Paris. The offense? It’s those damned sexy shoulders again.

Curmie need hardly point out that the Principal in the case, one Rhonda Bromley, makes an utter fool of herself in several discrete ways:

First, there’s the all-too-predictable whining to the press that students knew the rules, which of course were shipped via FedEx directly from Mount Sinai and accompanied by an autographed 8”x10” color glossy photograph of Moses himself. Gentle Reader, that’s a photo of the allegedly offending dress a little higher up this page. No serious person of the 21st century thinks there’s anything wrong with it; anyone with decent eyesight and an IQ above room temperature would be proud of a daughter, a niece, a student, who selected that dress for the dance. It’s well-styled and conservative, and Ms. Finlayson looks great in it. Indeed, anyone who suggests any impropriety on her part has the brains of a speed bump and is fit for no other career than high school principal (or, to be fair, state legislator); the apprentice fry cook at Big Bubba’s Burger Barn has to meet higher intellectual standards.

Second, there’s the hollow protestation that “students were not embarrassed when their dresses were deemed inappropriate.” There is a single-word response to this claim, one that is redolent of bovine feces. Of course teenaged girls were being quite intentionally humiliated for insufficient frumpiness. I said in the previous paragraph that young Gabi looked great. Alas, that seems to have been precisely the problem.

Next, we might notice the text of the policy itself: “Formals, backless dresses and/or tops may not extend beyond the bottom of the shoulder blades. Girls’ dresses and tops must have a 2″ minimum strap on each shoulder. Shawls, boleros and other shrugs are acceptable if worn over the dress at all times. Cleavage covered.” Um… don’t look now, but that dress sure looks to me like it very well might meet even those ridiculous standards. Because there’s no cleavage visible at all, and those straps sure do look to be pretty damned close to 2”. You’d certainly need a personal grudge and a micrometer to argue otherwise. Gabi says her dress is compliant, and I see no reason to dispute her claim. Nor does anyone at the school rebut her observation that “There were a lot of dresses that were very short, very tight, a lot more exposing or revealing than mine.”

Finally, there’s the whole matter of why such a stupidly restrictive policy exists to begin with. Gabi’s mom, Kristi Kimball, wonders, “How have we gotten to the point that we look at shoulders as if they're somehow pornographic? As if they are this shameful thing?”. That’s a really good question, Ms. Kimball. The answer certainly has something to do with an administration too stolid, too craven, and/or too imperious to stand up to the puritanical and ragingly sexist demands of a community that hasn’t yet decided whether “Father Knows Best” meets their standards of decency.

The school unquestionably (and unquestioningly) seeks to define male irresponsibility as an inevitable derivative of female allure. Remember the kerfuffle at Wasatch last year, when sleeves were inexpertly Photoshopped onto girls’ photos, but the same yearbook included shots of open-shirted boys with cutlines like “studs doing what studs do best”? Curmie is not normally a slippery-slope kind of guy, but this hypermasculinist phenomenon really is only a couple steps away from “I’m sorry I punched you in the face, but you know I don’t like my underwear folded that way.”

None of this is intended to suggest that girls are always innocent victims. Some of them do indeed dress or behave inappropriately for the occasion, and some reasonable standards of propriety do not come amiss. But this girl on this occasion doesn’t come close to crossing that line. School officials are terrified of adolescent sexuality, and in their tiny minds, it’s not occasionally, but always the girl’s fault. Boys can’t be expected to control their primal urges when glimpsing… you know… (whisper) shoulders, after all.

Gabi herself is right, if perhaps reductive: “Maybe instead of teaching girls they should cover themselves up, we should be teaching boys that we’re not just sex objects that you can look at and derive pleasure.” Curmie suspects that the real problem here, as far as the school was concerned, is that one of their students could think, let alone articulate, such a thing. They couldn’t allow one of theirs to enter that scary new (i.e. 15-year-old) millennium, and they felt an overwhelming desire to humiliate her publicly… she needed to be taught a lesson, after all.

So, let’s review the bidding, shall we? There’s a stupid dress code which exists primarily to blame adolescent male hormonal overload on girls, thereby insulting boys and condescending to girls, but other than that, Mrs. Lincoln…. The policy was then enforced inconsistently and indeed capriciously. Teenaged girls were quite blatantly shamed in front of their friends: the only question is whether this was intentional (probably), or whether the school officials in question are simply stupider than snake spit and couldn’t predict the inevitable outcome of their actions (conceivably). Oh, and despite the fact that the dress code seems to have been written in 1962 by middle-aged cloistered nuns with insufficient dietary fiber, the dress was compliant, anyway, just as many of the outfits shown in the original, undoctored, photographs submitted to the Wasatch yearbook last year were clearly dress-code complaint. (And just as yet another Utah teenager was almost certainly compliant in Tooele the first time Curmie wrote about stupidly-enforced dress codes in Utah.)

I suspect Curmie will have to speak reeeeeeeeeeally slowly to Principal Bromley about this, as she seems to be a little slow on the uptake, but even if you’re going to have a repressive dress code, you’re still only allowed to enforce its provisions, not whatever your most prudish employee decides the standards ought to be.

Gabi looked marvelous. You look moronic.

The good news is that I promise not to complain about what you choose to wear to accept your quite likely Curmie nomination.

2015's First Curmie Contender: Because Alabama Kids Shouldn’t Know Alabama History

Surely no History Club ought to be interested in this, right?

Well, it didn’t take long for the first Curmie contender for 2015 to emerge. In DeKalb County, Alabama, Superintendent Hugh Taylor decided unilaterally that the high school’s history club couldn’t attend a local showing of the film “Selma.”

This is problematic at a lot of levels, but let’s just pick a couple. We start with optics. To be sure, reality trumps perception, but it would be difficult to invent a scenario with a worse appearance in political terms than having a white administrator in a majority minority district in Alabama cancel an optional outing to see a movie about one of the seminal moments in this country’s civil rights movement as we near the 50th anniversary of those Selma to Montgomery marches—and to squeeze the announcement neatly into the three-day window between the film’s Oscar nomination for Best Picture and the national holiday honoring the film’s central character, Dr. Martin Luther King, Jr.

The rationale Taylor’s decision looks pretty shaky, too. He expressed concerns over obscene language, “racial profanity,” and placing teachers in the position of playing parents. Curmie’s eyebrow just reached skyward, Gentle Reader, his opposite eye squinted, and his olfactory senses detected the presence of bovine fecal matter.

Curmie hasn’t seen the film yet, but does not doubt the presence of potentially offensive language in the screenplay. But we must remember that this is a history club event, not a class. No students are being forced against their will to go on this outing, and there would seem to be no issues that couldn’t be solved with a simple parental consent form whereby parents would acknowledge the potential for offense and grant the accompanying teachers (who would appear ready to handle the responsibility) the authority to deal with any situations that might arise.

Note also that the problem isn’t that the film presents an ahistorial perspective, à la “JFK.” It may be the film isn’t historically accurate, but that’s not the objection.

So it’s difficult to argue with the Reverend James Stanton, an African-American man who lived through the civil rights movement, and whose daughter is one of the students denied the opportunity to see the film with the history club. Rev. Stanton suspects that administrators have “something that they are not wanting exposed or the children not to know about. I don’t believe it is just about the profanity.” Usually, Curmie would view such claims with more than a little skepticism, but Taylor’s explanation just doesn’t seem very credible.

Of course, even if Taylor shut down the field trip for precisely the reason he stated, that wouldn’t make the decision a good one, merely an honest one. Real education is crippled by inoffensiveness. The entirety of human history is littered with offensiveness: war, disease, poverty, racism, sexism, slavery, brutality. Thomas Hobbes famously described the life of man as “solitary, poor, nasty, brutish, and short”; there are times Curmie wonders if ol’ Tom wasn’t a bit of an optimist. Certainly if we were to strip away from the study of history all items that might conceivably offend someone, there would be nothing left.

What’s really offensive is the suggestion that art and history alike should be reduced to nice, polite platitudes that discreetly paper over the reality. MLK was not, is not, a hero to millions because he faced no obstacles, but precisely because he did. He was cursed, spat upon literally and figuratively, and subjected to every racial insult his boorish antagonists could imagine. But he persevered, and whereas the world and nation we inhabit is far from a post-racial utopia, it sure as hell is a lot more transparent, more tolerant, and more just than the one Dr. King sought to transform.

And so we’re left with a white administrator condescendingly (in both senses of the term) protecting black folks from the unpleasantness of the past. Or is it the white folks he’s really protecting? The foregoing question, Gentle Reader, borders on the rhetorical.

Curmie Flashbacks: Florida State and Mustang

Curmie contenders don’t ever seem to go away. Already in 2015 there have been two stories relating to previous Curmie Award contestants.

On January 10, the Tallahassee Democrat published an op-ed by Lakey, outlining the further adventures of the Charles Koch Foundation in attempting to infiltrate and essentially buy the Economics Department at Florida State University. (The essay was subsequently expanded and published by the FSU Progress Coalition, and then picked up by the Crooks and Liars website.)

Charles Koch, the de facto head of Florida State University.

Curmie first wrote about this ongoing saga back in May of 2011 in a piece called “Koch Whore.” I picked up the story again briefly a week later, comparing my responses to those of Stanley Fish in an essay entitled “Academic Freedom: What It Is and Isn’t.” Dean David Rasmussen was then nominated for the inaugural Curmie Award “for allowing Charles Koch’s foundation to have veto power over faculty hires in exchange for a grant, then claiming there are no repercussions to his program’s academic integrity as a result.” Rasmussen finished second in the balloting that year—to the Kentucky teacher who punished a 9-year-old autistic child by shoving him into a bag intended to store gym balls.

In summing up Rasmussen’s performance, Curmie wrote:

Second-place finisher, and therefore de facto winner of the unofficial Curmie: Higher Education Division award, is David W. Rasmussen, the Dean of the College of Social Sciences at Florida State University, who tried to justify his decision to allow representatives of the Charles G. Koch Charitable Foundation to have veto power over faculty hires in exchange for a substantial grant. His argument that “it seems to me it would have been irresponsible not to do it” proves he is utterly devoid of the ethical sensibility we ought to require of our educational leaders in particular.

And now, the situation is even worse, notably because of the fast-tracked appointment of John Thrasher as President at Florida State. As is too often the case of late (see: Glenn McConnell at the College of Charleston, Mitch Daniels at Purdue [Daniels had either appointed or re-appointed every Trustee who voted for him to get the gig!], John Sharp at Texas A&M, among others), Thrasher had no experience in education whatsoever at the time he got the job. What mattered to the politically-appointed Trustees was that he was a minion of Jeb Bush, and that he would be beholden to the right (get it, right?) reactionary ideologies and wealthy donors (or prospective donors). Academic freedom? What’s that?

According to Ray Bellamy and Kent S. Miller, a Faculty Senate committee reviewed the terms of FSU’s renunciation of academic integrity agreement with the Charles Koch Foundation and made some common-sense recommendations:

no more donor-funding hiring until a number of provisions are modified; the FSU Foundation should review its policies regarding gifts and update documents if necessary to ensure the autonomy and integrity of university’s academic mission; and review the role of the faculty in shared governance and primary responsibility of the faculty for the curriculum.

These guidelines seem to have been ignored. It is clear that the Koch Foundation both wants and receives veto power in hiring decisions. Both they and their ass-kissers at FSU are too clever to make that explicit, of course. But it is difficult to argue with Lakey’s analysis:

The 2013 contract says that the selection of Professorship Positions must go through normal university processes of hire but before the hire takes place the information on the candidate must be put past CKF and CKF is under no obligation “to provide funding” to their selection. This means that CKF still has veto power over who gets hired in the department with their money. It doesn’t take much to realize that this means the department must put forward someone CKF approves in order to get the position funded.  [Emphasis in original.]

Lakey also points out another part of the scam:

The Charles Koch Foundation offers funding for five professor positions but only funds these tenure-track positions for 5 to 6 years. That is exactly the amount of time it takes to gain tenure. At the time of tenure, CKF funding disappears and the 2013 agreement mandates that FSU agree “to assume full responsibility for the continued maintenance and funding of the Professorship Positions.” In other words, Charles Koch Foundation puts their people in and then the taxpayers are required to keep them until their tenure expires. Five years of CKF funding to guarantee a lifetime taxpayer position. What? This sounds a lot like stacking influence at taxpayer expense to me.

Sounds that way to me, too, Lakey. Of course, the power elite at FSU have long since stopped paying any attention to anyone not in their echo chamber—not to faculty, not to students, not to alumni, not to the general public. (There’s more on the broader story here and here. They care about two things and two things only: helping their wealthy friends and winning football games (even if their quarterback is more likely than not a rapist).

And so we move on to the great state of Oklahoma, where Hobby Lobby CEO and all-around asshole Steve Green tried last year to get an absurdly unconstitutional course on Bible approved for public schools. He probably violated state law to do it, but the leadership of the Mustang school district decided to buy into his little scheme to use public funds to proselytize high school students.

Curmie wrote about the… ahem… unholy alliance between and Mustang schools in April of last year. A follow-up on the illegalities involved came in July. The Mustang hierarchy earned (Dis)Honorable Mention status in the 4th Annual Curmie Awards.

And now comes word that an idiot Oklahoma Republican legislator (apologies for the multiple redundancies) has proposed a bill which would protect school districts from liability for… you know… blatantly violating the Constitution and “providing an elective course in the study of religion or the Bible.”

State Senator Kyle Loveless would have us believe that he believes in the separation of Church and state, but:

“I don’t see anything wrong (a provision) that gives local school districts the ability to study the historical aspects of the Bible. That’s my reasoning for the bill. It is not a forced class and this would not be a ‘Sunday School’ type course. We are not endorsing one religion over the other.”

With all due respect, Senator, that’s utter bullshit and you know it. I won’t say that no one would object to a course that really looked at the Bible in historical context or as a work of literature. I wouldn't, but I won't speak for others.  But surely you aren’t stupid enough to believe (or to expect the rest of us to believe) you’re not looking to sell one particular religion.

After all, Senator, you admit… or proclaim… or whatever that this bill was prompted by what happened in the Mustang district last year, and the textbook describes God as “eternal, “faithful and good,” “full of love” and “an ever-present help in times of trouble.” “When humanity ignores or disobeys his rules, it has to suffer the consequences,” it proclaims. Yeah, that certainly doesn’t sound like it’s promoting religion, unless you can, you know, read.

Luckily, state legislators don’t get to re-write or even re-interpret the U.S. Constitution according to their whim. I can’t imagine that we’ll see that course any time soon. The Koch addiction at FSU is the far greater threat.