The Courts Have Been Busy: Education Edition

Three court cases, all tied to education in some way, all of them (go figure!) showing the school to be at fault in ethical but not necessarily legal terms.  Let’s take them in chronological order by decision date.

First up: Sexual assault on the band bus.

In March of 2017, “Jane Doe,” then a junior at Oakton High School in Vienna, Virginia, traveled as a member of the school’s symphonic band to a music festival in Indianapolis.  As it happens, “Jack Smith,” a senior, sat next to her, said he was cold, and asked to share her blanket.  The blanket then covered them both.

As to what exactly happened next, there is some dispute, but Smith ultimately admitted to sticking his hand up Doe’s shirt and touching her breasts; he denies Doe’s allegations that he also put his hand down her pants and penetrated her vagina with his fingers or that he forced her hand onto his penis.  Doe claims that all of this was non-consensual, and told friends about the incident upon arrival in Indianapolis.

These friends then told school administrators.  What happens thereafter is a little confusing to sort out, but it is certainly noteworthy that, in the words of the decision of the 4^th Circuit Court of Appeals, “school  officials—including  Assistant  Principal  Michelle  Taylor, who accompanied the band to Indianapolis—took no action regarding these reports during the trip, and they did not speak to either Doe or her parents about what had happened on the bus ride.”

Doe subsequently was called into the principal’s office, where she described her experience.  After what appears to have been a rather cursory investigation, Principal John Banbury and Assistant Principal Jennifer Hogan decided that “the evidence that [they] had didn’t show that [they] could call it a sexual assault.”

OK, stop right there.  WHAT???  The boy admits he put his hand up the girl’s shirt.  Even if the rest of the allegation is fabricated, that’s enough, isn’t it?  So, the only question is consent.  This is an important point, of course.  It isn’t assault if Doe complied willingly.  She says, admittedly rather obliquely, that she didn’t “think it was consensual,” and school officials grant that such a statement suggests that consent was absent.  There’s nothing in the court decision to suggest that Smith argued that point.  Surely there’s enough there to suggest that it could (!) be called a sexual assault.

Moreover, Doe suffered some pretty significant after-effects of the incident, sought and received professional help, and was diagnosed with adjustment disorder with anxiety.  Her symptoms, which would be pretty damned hard to fake for a long period of time, lasted even after Smith graduated.  Her attendance record and grades both plummeted.  Curmie is neither a cop nor a psychologist, but this evidence seems rather compelling, does it not?

Things get a little more complicated here.  Doe clearly received accommodations from the school, or at least from individual teachers: she continued in band class by “sitting in a small private room by herself,” for example.  On the flip side, Principal Banbury admits to making a crude joke about the incident.

Anyway, Doe and her parents sued the school for “deliberate indifference” leading to a “deprivation of access to educational opportunities or benefits.” If Curmie understands correctly, this takes several forms: not offering assistance to Doe when the incident was first reported on the trip per se, not punishing Smith in any way (meaning, in effect, that he was allowed to continue in band but she, because of Smith’s presence, could not), the principal’s lewd joke, etc.

From the court decision again:

The jury found that Smith had sexually harassed Doe and that the harassment had been severe, pervasive, and offensive enough to deprive Doe of equal access to the educational opportunities or benefits provided by her school.  However, the jury also found that the School Board did not have actual knowledge of the alleged sexual harassment.

Again… what?

The fact that the school didn’t take the allegation seriously is evidence that they didn’t hear about a claim that any reasonable person would regard as a claim of sexual harassment as defined by Title IX?  Well, sort of.  The dissenting judge in this case argues that the school was not responsible for a single incident (as they would have been had a pattern developed), and that they did what they could to prevent further incidents, which is all that is required.

This may be true under the law (insert obligatory “Curmie isn’t a lawyer” statement here), but it sure seems that the school’s response was late, superficial, and half-hearted.  And the lack of any punishment for Smith suggests, well, indifference on the part of the school.  Count Curmie with the majority on this one.

Next: Extended choke holds are OK if they’re disciplinary (!?!)

The idea of legal precedent is, to use the grad school word, vexed.  It’s certainly a good idea to make the law consistent, so that similar events are treated the same way.  But when the precedent itself is faulty, all that happens is that injustice multiplies.  Yes, there are occasions in which the Supreme Court will overturn a previous ruling (Brown v. Topeka comes to mind), but such instances are rare, and can occur only at the SCOTUS level.

But really the reliance on precedent is little (if indeed anything) more than a “we’ve always done it this way” argument.  Regardless of the specific circumstances, such a position is sufficient to maintain the status quo in the absence of a demonstrably better alternative, but not to continue down the same path out of habit when there are such superior options.

All of which brings us to the case of T.O. v. Fort Bend, recently decided by the 5^th Circuit Court of Appeals.

Here are the basics: T.O. is a child with ADHD and ODD; he was therefore provided a behavioral aide and a Behavioral Intervention Plan.  One day in 2017, T.O. was acting up in class, and his aide removed him from the room and told him to stay in the hall until he had calmed down.  So far, so good, right? 

Enter Angela Abbott, a teacher who came upon the scene by chance.  Here’s the description from the court’s decision:

Although T.O.’s aide explained that the situation was under control, Abbott positioned  herself between T.O. and the classroom door while he yelled that he wanted to return to class. In an attempt to re-enter the classroom, T.O. tried to push Abbott away from the classroom door and hit her right leg.  Abbott responded by seizing T.O.’s neck, throwing him to the floor, and holding him in a choke hold for several minutes [emphasis added].  During that incident, Abbott yelled that T.O. “had hit the wrong one” and needed “to keep his hands to himself.”  She released T.O. after his aide asked Abbott “to release him...  because he needed air and she was holding him the wrong way.”

Ms. Abbott was, according to the court document, “never fired or disciplined in any way.”  Not surprisingly, T.O.’s parents were less than pleased at Abbott’s actions, and they sued her and the school.  But the court threw out the complaint because teachers have qualified immunity (the same concept that protects a handful of good cops and a plethora of bad ones), and the action occurred “in a disciplinary context.”

More specifically, there’s all this precedent [footnotes omitted]:

…we have consistently dismissed substantive due process claims when the offending conduct occurred in a disciplinary, pedagogical setting. For example, we dismissed substantive due process claims when a student was instructed to perform excessive physical exercise as a punishment for talking to a friend; when a police officer slammed a student to the ground and dragged him along the floor after the student disrupted class; when a teacher threatened a student, threw him against a wall, and choked him after the student questioned the teacher’s directive; when an aide grabbed, shoved, and kicked a disabled student for sliding a compact disc across a table and when a principal hit a student with a wooden paddle for skipping class.

Wait.  What???  Putting a kid in a chokehold for “several minutes” is permissible because all these other things were?  What if—stay with me here, Gentle Reader—those other things weren’t acceptable.  What if grabbing, shoving, and kicking a disabled student for sliding a CD across a table isn’t a good idea?  What then?

Surely it’s important for government employees—police, teachers, whatever—to have some limited authority to protect themselves, and to use some amount of physical force pre-emptively under certain circumstances.  But all of these examples suggest an egregious over-reaction that cannot be supported as ethical… of course, the court may be absolutely correct in legal terms (insert obligatory “Curmie isn’t a lawyer” disclaimer again), but the extent of qualified immunity protections must be limited somehow, if not by the courts, then by the legislature.  

Of course, this is Texas we’re talking about, and expecting the politicians to clean up the mess they’ve helped to create is rather like expecting a toddler to scrub the floor after dumping his chocolate pudding (or something else of that color and general consistency) all over it.

Finally: Schools can’t control students’ entire lives.

This one went all the way to SCOTUS, who rendered a pretty convincing 8-1 decision in the case of Mahanoy v. B.L., providing a clear indication that schools’ ability to control the off-campus activities of students is limited, and that off-campus speech (short of incitement, slander, or conspiracy) is protected.

B.L. was a freshman at Mahanoy Area High School in Pennsylvania in 2017.  She tried out for both the cheerleading squad and the softball team that spring; she was offered a spot on the J.V. cheerleading squad, but not the varsity.  It’s unclear what happened with softball, but she didn’t get what she wanted.

The following weekend, she posted on Snapchat a photo of herself engaging in the monodigital salute, with the caption “Fuck school fuck softball fuck cheer fuck everything.”  Not the most linguistically elegant of phrasings, to be sure. 

Be it noted: 1). the post was made from a convenience store, not school property, 2). B.L. used her own phone, not a school-owned device of any kind, 3). she was not in a cheerleading uniform, nor did she mention the school or any individual by name, 4). the post was made on the weekend on a platform on which posts are “live” for only 24 hours, so it’s unlikely school would have even been in session when the message was still available, 5). access to the post was limited to her Snapchat friends, not to the general public.

But, alas, one of those alleged friends narked on her, and because she had used profanity, she was barred from participation on the cheerleading squad altogether for a year.

Any rational being would follow something like the following thought process: she’s 14 or 15 years old; she’s upset; she’s venting to her friends; she’s not doing anything disruptive or illegal; she is not the first teenager to use phrasing derived from the Anglo-Saxon, nor will she be the last; she has 1^st amendment rights and doesn’t surrender them unless there’s a specific and significant reason why she should.

All this, of course, would be contingent on the cheerleading coach, the principal, and various other powers-that-be having a little maturity, a little discretion, and a little respect for both a student and that short document known as the Bill of Rights.  But, as you know, Gentle Reader, these are school administrators, and there’s a teenaged girl to push around… the temptation is irresistible.

B.L. and her family sued, and won at the Appeals Court level.

The right of students to say and do what they please when not on campus, representing the school in some formal capacity, or overtly attempting to interfere with the operation of the school is, or at least ought to be, inviolate as far as the school is concerned.  Obviously, this right does not apply to illegal activities, but it’s not the school’s business to enforce the law: that’s why we have police forces.

Curmie has been saying this for years, just in this iteration of blogging: we can start chronologically with Emma Sullivan, who tweeted in 2011 than Kansas Senator Sam Brownback “sucks,” capping it off with the hashtag “#heblowsalot.” She was ordered to write letters of apology to all and sundry.  (She didn’t comply.  Good for her.)  Most recently, there was Hannah Watters, a Georgia high schooler whose photograph of the hallways in her school during changeover (lots of unmasked, tightly bunched students during the pandemic), posted outside school hours, went viral, and who was given a five-day suspension for what can only be called fanciful reasons.

In between, there were stops in Illinois, Indiana, California, Minnesota, and New Hampshire.  Clearly, this isn’t a red state/blue state distinction.  The desire on the part of school administrators country-wide to control literally every aspect of their students’ lives (especially if those students might possibly say something uncomplimentary about those administrators or others in power) is nearly universal.  This is why SCOTUS’s ruling that students have 1^st amendment rights, too, (and the unanimity of the decision except for a very bizarre dissent from Justice Thomas) is so important.  There’s a lot there, but the most important part of their decision, from where Curmie sits, at least, is this:

…from the student speaker’s perspective, regulations of off-campus speech, when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day.  That means courts must be more skeptical of a school’s efforts to regulate off-campus speech, for doing so may mean the student cannot engage in that kind of speech at all.

Yeah, what they said.

Ah, Florida...

Curmie had a post underway, then postponed it because something else came along, and now he’s putting that project on the back burner because of this.  I first read about this story on Salon.com, but that’s an extremely left-leaning site, so I looked for other sources, because it couldn’t be this bad, right?  Right?

Well, Business Insider, that bastion of Commie propaganda, says pretty much the same thing in their story.  Florida is once again making its pitch to be the principal laughingstock of the nation.  I wish they’d stop, not because their idiocy affects me directly, but the Texas legislature really resents being out-stupided, and they’ll develop a scheme even more hare-brained (and repressive) than this. 

Governor Ron DeSantis
Censorious Asshat

Governor Ron DeSantis this week signed into law that requires the state’s public universities to survey their faculty, staff, and students about their political beliefs.  The Florida GOP wants to ensure an environment in which “competing ideas and perspectives are presented.”  

This is an absolute lie, of course.  All you have to do is look at the rhetoric of House Speaker Chris Sprowls, who may be even more reprehensible than DeSantis; he argues that Florida’s students need to be taught “about loving America” and “what our real history is and what our legacy is.” 

Well, our “real history” includes slavery; lies and broken promises to First Nations people; internment camps for Japanese-Americans; discrimination against Jews, Catholics, Muslims, women, homosexuals; the use of atomic weapons on civilians… the list goes on.  That’s not all our history is about, of course.  There were, and are, ways in which this truly is the greatest country in the world.  But we’re talking about university students here: they’re old enough and mature enough to know that George Washington didn’t admit to chopping down the cherry tree with his little hatchet.

A nation that can recognize and confront its failures to deliver the “liberty and justice for all” its rhetoric promises is inherently stronger than one which hides away its darker moments like crazy Uncle Elmo whom we never let out of the attic.  Sometimes the only way to disinfect the wound is to rip off the scab.  By the way, apparently Sprowls (and DeSantis, and most of the rest of the Florida GOP) believes that “loving America” is ideology-free.  Uh… no.

Of course, the entire idea of threatening to withhold funding from universities which might have disproportionately large numbers of (gasp!) Democrats is both sinister and doomed to failure.  Let’s face it, people will lie if their livelihood is on the line.  (There is, by the way, no guarantee of anonymity for those answering the survey.) 

And it is certainly true that universities (in certain departments at certain schools, at least) are indeed primarily staffed by folks who are more likely to be liberal.  The average university professor (if Curmie does say so himself) tends to be well above average in intellect and possessed of a good work ethic.  Such a person could make more money developing a new marketing campaign for Amalgamated WidgetCorp.  Crude but not altogether inaccurate generalization: capitalists tend to prefer money; socialists are more likely to seek to benefit the society at large.  Curiously, the former like their government-funded infrastructure and the latter would willingly be paid more.

More to the point, my politics are none of the state’s damned business.  That’s why we have secret ballots, after all.  If, and only if, my political stance shuts off legitimate debate, then that’s a problem.  But the presumption must be that I am operating in good faith until it is proved conclusively that I am not.  Forces on both sides of the political divide would rather make us prove innocence.  That is un-American. 

Ah, but Governor DeSantis has heard fears from “a lot of parents” that their offspring are being “indoctrinated.”  1). That’s because DeSantis and his cronies are screaming such nonsense from the rooftops.  2). What’s happening more likely than not is that the indoctrination happened when little Johnny or Suzy was growing up, and that what happens in the college classroom is in fact a challenge to that pre-existing indoctrination.

This is not to suggest, of course, that all faculty are blameless, or indeed that there aren’t threats to freedom of expression emanating from the left.  Of course, there are.  They’re real, and no one who’s been paying attention thinks otherwise.  But this bill is using an assault rifle to kill a guppy.  It can only lead to an increasingly high stakes battle with both sides moving away from the real issue for the sake of winning the argument rather than improving education.

It is also true that on Curmie’s campus, there are some faculty far further to the right than Curmie’s most liberal colleague is to the left.  One professor at this state university gave students extra credit for memorizing Bible verses (needless to say, this wasn’t a course in comparative religion).  The administration loved him. 

Moreover, this effort demonstrates a profound lack of understanding of the way universities work.  Diversity of perspective doesn’t require hiring both liberals and conservatives; it requires faculty who know what the hell they’re doing.  Curmie has taught plays that are very Catholic, very Jewish, very Buddhist, very Hindu, very atheist; he’s taught plays that advocate for monarchy, for democracy, for socialism, for capitalism, for anarchy.  Do I really need to tell you, Gentle Reader, that I’m not an adherent to all of these philosophies?

The same is true for the history part of my courses: I suppose that Curmie’s dislike for blowing up innocent people, or slaughtering them, or starving them to death… this could be taken as a political stance, but it would be kind of a stretch to call that a comprehensive philosophy, wouldn’t it? 

And whereas, as noted in a piece I wrote a month or so ago, students will know something of my politics when I refer to them by their preferred pronouns or suggest that part of choosing a theatre season is ensuring that there are qualitatively good and quantitatively enough roles for actors of different demographic profiles, that doesn’t mean they know where I stand on any particular issue except in the most general terms (cops killing civilians is sometimes but not always justified; what about this particular case?).  To the best of my knowledge, no current student even knows of the existence of this blog.

There’s also the matter of academic freedom.  Especially but not exclusively tenured faculty are, and should be, granted the ability to determine the content and structure of their courses.  The Florida GOP stratagem, of course, represents the first step toward subjecting higher education to the censorial powers of whoever happens to have the political advantage at a given moment.  Given the splintering of the American electorate and the intransigent extremism of both sides, that’s a terrifying prospect in the short term, and it won’t get any better if the blues instead of the reds are in power.

Finally, one is tempted to wonder at the rationale for requiring students to acquiesce to this violation of their privacy.  At least the desire to suppress the rights of faculty makes sense in amoral, utilitarian terms.  But the only possibility for studying the student body is to track changes over time, looking for the “gotcha” moment when the senior class is marginally more liberal than they were as freshmen.

Well, duh.  At least in certain ways, of course they are.  The classroom isn’t the only place that learning takes place.  Curmie had a couple of gay friends in high school, but they weren’t out to him at the time.  In college, I “knowingly knew” gay friends.  And there were more people of different races, religions, and, yes, political philosophies.  In the classroom, I learned some facts that challenged my beliefs and some that bolstered them.  That is what is supposed to happen.

Curmie emerged from college more liberal in some ways, more conservative in others, and certainly more skeptical of all pronouncements from either side.  This, too, is what is supposed to happen. 

It is only a matter of time before Governor DeSantis, Representative Sprowls, or one of their cohort declares the imminent arrival of Shari’a Law on American shores.  Newsflash: such enforced orthodoxy is already here; it’s manifested in this legislation.

Education Follies

Sometimes it’s the relatively minor stories that reveal the most about the direction we’re heading.  Curmie’s interest in education-related issues has been a cornerstone of this blog since its inception over eleven years ago.  Put these two ideas together, and you have the grounding for three stories that have come to light this week.

The first, to borrow a phrase from Stevie Nicks, is hauntingly familiar.  A decade ago, Curmie wrote about a valedictorian controversy at an Arkansas High School. The basic facts of the case: according to one scoring system, the valedictorian would have been a black woman; according to another system (the one the school’s rules demanded be used), the valedictorian was another student who, as you’ve already guessed, Gentle Reader, was white.  The school decided to name them co-valedictorians, but that wasn’t enough for the black student (or at least for her mom), who sued for exclusivity, claiming racial discrimination.  Sigh.

Now it’s a decade later, and we move to West Point High School in Mississippi.  It’s time to re-watch “Casablanca” and hear Sam sing “As Time Goes By,” because it’s still the same old story, a fight for love and glory.

Can you tell that Curmie
isn't taking sides in this one?

Once again, two different means of calculation (weighting or not weighting for advanced classes) presented different results.  This time, both the valedictorian and salutatorian were affected, but the race of the students is once again foregrounded.  As before, the white students— Dominic Borgioli and Emma Berry—should have received the honors according to the rules, but the black students—Ikeria Washington and Layla Temple—were initially announced as recipients of those designations. 

Parents of the white students had calculated the averages and determined that their children were the rightful recipients of the recognition.  This sounds petty and quite possibly racist except for one thing: they were right... or it appears so, at least.  The new-to-the-job guidance counselor whose calculations determined the winners had indeed used the wrong formula, or so claims the district’s superintendent, who, if it matters, is black.

As in the earlier case, the school not only screwed up, but communicated poorly (or not at all), so Ms. Washington and Ms. Temple were blind-sided by a Facebook post by Emma’s mom….  It’s easy to sympathize with all concerned, but there seems to have been a whole lotta pettiness going on across the board.  Oh, hell, Gentle Reader, just assume that virtually everyone involved who could have been a jerk or an incompetent was one.  Or read Jack Marshall’s summary over on Ethics Alarms.  That pretty well sums up Curmie’s view, too.

It may be of interest to note that had the Arkansas school from a decade ago and the Mississippi school from this year switched formulas, both valedictorians might have been different.  Or they might have been the same.  Had Curmie’s high school used the formula suggested by someone on the school board my senior year (giving extra points for advanced classes), I might have been valedictorian instead of finishing fourth.  Or not.  Even at age 17, I knew it didn’t matter.  Of course, the swag that went to the valedictorian would have been nice, but I kind of figured there would be more graduations, and possibly more honors, in my future.

Curmie could now launch into a critique of grading systems based on faux objectivity, but let’s face it: we all know that some courses are easier than others, some teachers are harder graders than others, some schools are more competitive than others.  Let’s just agree that these rankings matter only in the broadest terms (all four of these kids are really good students), shall we?

In thinking about today’s second story, Curmie is reminded of one of his favorite riddles:

Q: How many legs does a dog have if you call a tail a leg?

A: Four.  Calling it a leg doesn’t make it one.

Yes, Curmie has undoubtedly used that reference before.  Cope, Gentle Reader.

The Charlottesville, VA school system has decided that 86% of its students are “gifted,” a designation that even the program’s coordinator seems to acknowledge as “essentially meaningless in that it doesn’t provide anything different for students formally identified as such.”

This is roughly the same as the local burger joint selling two sizes of soft drinks: large and jumbo.  No, that small one: that’s a small.

As the above commentary on Curmie’s high school career suggests, I took a lot of advanced courses: Calculus, French 5, “intensive” English, and so on.  My guess is that about 10% of the student body took at least one course that would now be called part of a “gifted” program (we didn’t use that term back in the Dark Ages when Curmie was in school, but the concept existed).  Perhaps half that number took more than one such course.  Let me be blunt: that was too many.  

Fact is, there were some students in those classes who didn’t belong.  It wasn’t fair—not to them, not to the teachers, not to those of us who were being slowed down by their presence.  And that was in classes representing maybe 7-8% of the school population.  So… um… 86%?  This would be ridiculous in the extreme if it weren’t so terrifying.

Obviously, there’s an ulterior motive here, and it’s got literally nothing to do with providing quality education for any student, “gifted” or otherwise.  Part of the impetus is an apparent belief that gifted programs ought to proportionally represent the community.  Of course, this idea conflicts with the very notion of a meritocracy: is it reactionary to suggest that gifted programs ought to be restricted to students who are (wait for it) gifted?  Some of those students will be white, some Asian, some Latinx, some black. 

The proportions of those students ought to be determined by who can best do algebra (or whatever), not by race.  Call me back when the NBA institutes a rule that no more than 15% of its players can be black.

Moreover, if, as is apparently the case, this is just an exercise in Humpty Dumpty semantics: that words mean only what the gifted program coordinator says they mean (today).  Two things are clear:

First, that the truly gifted students in the school system will no longer have courses that will challenge them.  They’ll get bored, act out, and generally contribute far less of a positive nature than they would have.

Second, the percentages having flipped, the “bottom” 14% are now subject to more scorn, more ostracism, than previously.  It’s well-documented that virtually everyone seeks to be superior to someone.  If I’m in the 20^th percentile of my class, I’m now “gifted,” and Bobby over there still isn’t.  I’m still in the majority, but now I’m in the privileged class, and I’m going to strut about it.  And I’m by definition too stupid to realize that I’m a pawn in someone else’s socio-political machinations.

Finally—what the hell is it about schools in Utah?  For a state with such a relatively small population, their schools sure do make a lot of boneheaded moves.  Do they have special classes to lower the IQs of administrators? 

Over the years Curmie has written about idiots in Jordan, at Lone Peak High School, in Wasatch County, at the Nomen Global Language Center (a private school in Provo), and in Toole.  Now we can add Shoreline Junior High School in Layton to that collection of buffoons, charlatans, censorious prudes, and garden-variety idiots.  But this one takes on the additional baggage of being not only remarkably stupid, but also (apparently intentionally) cruel.

Curmie turns to the article in the Salt Lake Tribune, which sums up the situation:

The cheerleading squad at Shoreline Junior High took two official team portraits this year. 

The first photo included Morgyn Arnold, a 14-year-old student with Down syndrome who’d been working as the cheer team manager and knew all the routines by heart. The second photo included all the other girls, but was taken without Arnold, who was noticeably missing from her spot in the front row.

And it was that second picture without her that the school used on social media and in the yearbook.

Jordyn Poll, Morgyn’s sister (who had been a cheerleader, as well), notes that “It’s the SAME cheer team — SAME girls, SAME photo shoot, SAME poses, but one included all team members and one did not.  A choice was made on which photo to submit.”  Poll also writes that her sister “spent hours learning dances, showing up to games, and cheering on her school and friends but was left out. I hope that no one ever has to experience the heartbreak that comes when the person they love comes home from school devastated and shows them that they’re not in the picture with their team.”

The two photos.  

Curmie apologizes, but what fucking idiot(s) made the series of decisions involved here?  The girl was part of the team, end of discussion.  Someone (the school photographer? the team’s advisor? someone else?) decided to take two photographs to begin with.  Why?  Someone decided not only to choose the second photo for both the yearbook and on social media, but to leave Morgyn’s name out of the yearbook.  WHY?  Someone who made those decisions still has a job.  WHY??? 

According to the article, the school posted an apology on its Facebook page (which now shows “This Content Isn't Available Right Now”—one suspects they might have received a comment or two, since the story reached the New York Times).  And apparently they’ve launched an investigation.  Whoopee.  They know who wanted the second photo.  They know who submitted the Morgyn-less photo to social media and the yearbook.  What’s to investigate?  Were Curmie of a cynical disposition, he’d suspect a delaying tactic—keep a low profile under the storm blows over.  Hopefully, it will be the hurricane that keeps on coming.  That district needs a serious stupidechtomy.

Morgyn was crushed by not being included, but she doesn’t blame her friends on the team, and she’s forgiven the perpetrators of the travesty.  Her father seems inclined to be guided by his daughter’s kindness and generosity of spirit.  Much as Curmie would like to see the culprits (and any school district that would hire them) on the wrong end of a seven-figure lawsuit, perhaps the Arnolds are right.  But at the very least whoever made those decisions should have to pay to have those yearbooks reprinted, and the correct photo included.

Curmie Enlists in the MCAB Squad

Curmie isn’t a member of the ACAB (All Cops Are Bastards) brigade, although the vast majority of his experience with law enforcement at any level has shown these alleged defenders of the citizenry to be insufferable, self-important, assholes.  But not all… well, not quite all.  There was that one guy in 1981.  Oh, wait, that one in 2014, too.  I guess only Most Cops Are Bastards.  So sign Curmie up for the MCAB squad. 

The general topic of police (or other agencies acting as police) misbehavior has been on my mind in fits and starts of late.  To pick only a few:

• There have been multiple incidents on Curmie’s campus of the University Police Department doing outrageous things; no repercussions, of course.   
• There was the anniversary of the shootings at Kent State, already significant in Curmie’s life and made more so by his attendance at an NEH-funded institute on that campus a few years ago.  
• There was the Derek Chauvin trial: whether or not what he did was murder, whether or not it resulted from racism, it was certainly a cop more interested in being “in charge” than in doing the right thing.  
•  In the BLM-related protests that followed George Floyd’s death, much of the violence was actually instigated by law enforcement.  
• In Curmie’s Irish Theatre and Culture course, we’ve had recent discussions of two “Bloody Sunday” incidents in Ireland: one in Dublin in 1913 during the most significant labor dispute in that city’s history, the other in Derry in 1972, in which 13 people were killed and the incident immediately covered up by the authorities.  I was going to say the truth finally came out some 38 years after the event, but that’s not quite true.  Everyone already knew the truth; the truth was officially confirmed in 2010.

So now we come to another incident.  No one died, thankfully.  But the entitlement of the officer involved and the eagerness of his superiors to defend him, even outright lie for him, is staggering.  Alas, it is not, however, at all surprising.  It’s precisely what has happened time and again in this country and indeed around the world.  A cop does something demonstrably stupid, demonstrably illegal, demonstrably evil, and his superiors scurry to cover it up, blatantly lie for him, and hope it will all go away.

Trooper Dunn’s handiwork: Curmie bets his mama is proud.

On July 9 of last year, Nicole Harper was allegedly speeding (84 in a 70) on US Highway 67/167 in Arkansas.  State Police Senior Corporal Rodney Dunn broke out the lights and siren to have her pull over.  It’s significant that this isn’t some rookie; the guy’s been around a while; he knows better… or at least he should.

Ms. Harper then did precisely what she was supposed to do, according to the Arkansas Driver License Study Guide: “Pull  over  to  the  right  side  of  the  road-- activate  your  turn  signal  or  emergency flashers to indicate to the officer that you are seeking a safe place to stop.”  She pulls over to the right lane, slows down to about 60 mph, and looks for a safe place to pull over… but the shoulder is too narrow, so she continues down the highway, planning to pull over at the next exit, about a mile away.

This isn’t satisfactory in the testosterone-poisoned universe of Trooper Dunn, however.  He proceeds to implement what is euphemistically termed a “precision immobilization technique,” or PIT.  This is a manoeuvre whereby a cop intentionally rams another vehicle, causing it to go out of control.  This technique has caused literally dozens of deaths in the past five years; in one case an infant was thrown from an SUV.  Most police forces have sense enough not to try to endanger someone’s life for speeding.  The Arkansas State Police apparently do not rise to this level of understanding, which, after all, would require intelligence exceeding that of a kumquat.

According to Rick Giovengo, a former law enforcement officer who taught the appropriate use of PITs at the Federal Law Enforcement Training Centers, “The speed, the people in the car, the crime that’s been committed, those are things that all have to be taken into consideration by the responding officer before they do the pit.”  Let’s see… The speed: slowing down.  The people in the car: It was dark, so Dunn had no idea; could’ve been kids, could have been Harper’s grandmother.  The crime that’s been committed: Speeding.  Seriously?  The “tak[ing] into consideration”: never happened.

Predictably, Harper’s vehicle went out of control and flipped.  Ms. Harper was seriously injured, but she was more concerned about her unborn child (who, by virtue of luck alone, is now several months old and apparently devoid of ill effects from the incident).  Dunn insists that she should have pulled over immediately.  Harper said, correctly, that it didn’t appear to be safe to do so, and that she thought she was doing the right thing.  Had she, in fact, pulled onto the narrow shoulder, she would have been endangering Dunn’s life, not so much her own.

She was 100% correct, of course.  How do we know?  Because that what the Asshole Dunn’s dashcam shows!

Police spokesperson Col. Bill Bryant responded, sort of.  He wouldn’t address the specific incident at hand, but rather issued a generic statement, which included this:

Over the past five years, Arkansas State Troopers have documented a 52 percent increase in incidents of drivers making a conscious choice to ignore traffic stops initiated by the troopers.  Instead of stopping, the drivers try to flee....  The fleeing drivers pull away at a high rate of speed, wildly driving, dangerously passing other vehicles, showing no regard for the safety of other motorists, creating an imminent threat to the public.

Hey, wait a minute, Colonel.  I know you want to lie to get your guy out of trouble, but does your disregard for truth have to be quite so obvious?  In this case, it’s clear to anyone who can out-think a dead ‘possum that Ms. Harper was not trying to flee.  If she were, she’d have speeded up instead of slowing down.  (Is Curmie the only one who remembers the famous O.J. Simpson low-speed chase?  And that was for a murder suspect, not someone going a little over the speed limit.)  Ms. Harper was specifically not “pull[ing] away at a high rate of speed.”  As “for showing no regard for the safety of other motorists, creating an imminent threat to the public,” that was your guy, the one who intentionally put another person at risk of life and limb.

Oh, but the prevaricating prat Bryant isn’t done.  In a classic example of inserting a comment into a “no comment” response, he intones (well, it’s a written statement, since he’s too chickenshit to actually have to answer questions, so he didn’t literally intone), “In every case a state trooper has used a PIT maneuver, the fleeing driver could have chosen to end the pursuit by doing what all law-abiding citizens do every day when a police officer turns on the blue lights – they pull over and stop.” 

Bullshit.  We know this statement to be untrue, because we’ve now seen the video.  Ms. Harper did things precisely by the book.  And if you’re willing to tell a bald-faced lie about this one incident, you’re willing to do so any other time one of your guys gets caught doing something outrageous.

The only good new here is that a photo of Dunn on the ASP’s Facebook page has been pretty well savaged.  Curmie doesn’t normally endorse this kind of behavior.  Dunn and the ASP deserve it, though.

In a just universe, Dunn would be fired without pension and arrested for assault with a deadly weapon, reckless endangerment, and assholitude in the first degree.  Bryant would also be fired without pension, and with the proviso that he could never work in law enforcement again.  Harper would be awarded pots of money: enough that the people of Arkansas would rise up against the legislators whose Old West sensibilities and machismo machinations in not outlawing this dangerous manoeuvre (except, perhaps, if the driver is suspected of a violent felony as opposed to driving a little too fast) allowed this to happen.

Does this look like a just universe to you, Gentle Reader?

On Disagreeing, Then Agreeing, Then Disagreeing with SCOTUS

Curmie first read about Van Buren v. United States from the NPR article by Nina Totenberg, with the headline, “Officer Who Sold Police Computer Data Gets A Pass From The Supreme Court.” (I’m hoping Totenberg didn’t write that misleading and ill-constructed headline.) 

Generally, Curmie reads one article about a SCOTUS decision, nods, and moves on. Occasionally, there’s a topic I really care about, and once in a while one of the Justices says something intriguing and I want to know the context. The reason I wanted to know more about this case, though, wasn’t any of these, or indeed the clickbait headline (NPR should be better than that). Rather, based on the article, Curmie found himself agreeing with the dissent (no surprise there)… and therefore agreeing with Clarence Thomas and disagreeing with the three liberals. That is a surprise.  This phenomenon required investigation! 

The facts of the case are not in dispute. The police force in Cumming, GA, was warned to treat a certain Andrew Albo with suspicion. Then-Sergeant Nathan Van Buren ignored this advice and struck up a friendship with Albo; after some time he asked Albo for a loan. Unbeknownst to him, Albo recorded that conversation and claimed Van Buren was trying to “shake him down.” 

The FBI got involved, and set up a sort of a sting operation. Albo said he’d pay $5000 to Van Buren to find out if a woman he’d met at a strip club was actually an undercover cop. He provided a (false) license plate number, which Van Buren checked out, accessing the information through the computer in his squad car. The FBI then closed in, and Van Buren was arrested and subsequently convicted of violating the 1986 Computer Fraud and Abuse Act. Of course, Van Buren was also fired from the police force. 

Ah, but he appealed the conviction, claiming that the law applies only to hackers who have no legitimate right to the information on a computer, not to people like him who had legal access but abused that right for personal gain. It is an argument only a lawyer, and a rather slimy one, could love. And it worked, as SCOTUS vacated his conviction on a 6-3 vote. 

Totenberg points out that “much of the high court debate on the question turned on the meaning of the word ‘so.’ To say more than that would be a waste of the reader’s time.” That’s cute, and Curmie sees what she means, but when policy is determined by an interpretation of a single two-letter word (remember “is”?), it’s not really a waste of anyone’s time, albeit that the topic seems rather arcane. 

The full context of that problematic monosyllable is this: that, according to the CFAA, the term “exceeds authorized access” means “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accesser is not entitled so to obtain or alter” (emphasis added). 

So (see what I did there?), when I started reading the decision, I expected to find myself rejecting the majority’s opinion. I didn’t. In fact, the argument about “so” appeals to Curmie’s inner Grammar Nazi. The law shouldn’t be written to allow scumbags like Van Buren to slither through unscathed, but it just might be. Without “so,” he’s got no case. With it, though, the majority can reject the common, logical (“common parlance” in legalese) definition of “exceeds authorized access” because, by precedent, “When a statute includes an explicit definition of a term, we must follow that definition, even if it varies from a term’s ordinary meaning.” 

That is, if the law didn’t define “exceeds authorized access,” since everybody knows what that means, Van Buren would be cooked. But since it does, we can now quibble over “so,” meaning, presumably “in the described manner.” Van Buren did, according to the majority’s reading, have authorized access according to the narrow definition of the statute, it was his purpose that was illegitimate. 

The majority even suggests that the Government’s reading of the law would make criminals of virtually everyone, since we are technically not allowed to use the work computer for anything but work. Thus, checking the news, scrolling through Facebook (or Curmie’s blog) during a break, sending a personal e-mail: all of these would be rendered illegal. 

So (I did it again, see?) I was persuaded. And then I read the dissent, which concentrates on the word “entitled,” centering on the idea that such entitlement is defined circumstantially. If a valet takes access to a car to park it, he is entitled to do so; if he takes it for a joy ride, he is not. This, too, is a persuasive argument, and one Curmie understands. 

For many years, one of Curmie’s departmental service functions was to determine students’ eligibility for production work. Our standards were rather complicated, so the process began with having the administrative assistant running a computer-generated report. Students whose names were not on the list were automatically eligible, but there were a variety of reasons why someone whose name did appear would still be eligible. 

All of this means I had to examine the transcripts of a number of students. Sometimes, because I mistyped, or because there are two students with the same name, I opened the file of a student whose transcript I had no legitimate right to see. Would such a mistake, corrected within seconds, subject me to criminal liability if the government had its way? I doubt that anyone would go that far, but technically… maybe, as there does not appear to be anything in the CFAA about intent.  But certainly I have no right to scroll through student records just for the fun of it.

But if we’re to believe the Van Buren team, as long as I have legitimate access to the system, I can use it however I want without breaking the law? I read about a case (can’t remember enough details even to look it up) in which the ex-husband’s new girlfriend looked up the transcript of the ex-wife to use as leverage in a custody dispute. Seriously, this doesn’t break some kind of law? 

Here’s where Curmie repeats that he’s not a lawyer, and that he understands that what is legal and what is ethical are not identical concepts. The law is unquestionably poorly written, and as I tell students all the time, I can only judge what you say, not the best-case scenario of what I think you might have meant to say. Similarly, it’s SCOTUS’s job to determine what a law says; only in cases of extreme ambiguity should they be deciding legislative intent. 

If nothing else, Curmie is actually encouraged by the fact that whichever side of this argument we ultimately support, it pretty easy to see why the other side disagrees. Even Justice Clarence Thomas’s supporters will grant that his lines of thought are sometimes, shall we say, eccentric, and Curmie has thought of him as an intellectual lightweight since his confirmation hearings (leaving aside the whole Anita Hill controversy). But his dissent is well-reasoned and compelling, even if we end up deciding in the other direction. We can hope for little more from SCOTUS.

Another Set of Short Takes

1). From Canton, Ohio, the city which houses the Pro Football Hall of Fame, comes this football-related story: McKinley High School head football coach Marcus Wattley and six of his assistant coaches were fired recently for forcing a player to eat pork against his religious beliefs. 

Former Coach Marcus Wattley

On the face of it, this is the only possible outcome of an action that is stunning in its arrogance, cruelty, and prejudice. The player, who has not been named (although his father has been, so it’s not like it’s a secret), is a member of the Hebrew Israeli religious faith, and as such is strictly forbidden from eating pork, pork residue, or apparently even pork substitutes. The boy’s attorney argues that the coaching staff should have known that prior to the events in question, since the player had been present at previous player meals. 

What happened, according to the boy and his representatives, is that he was being punished for missing a voluntary strength and conditioning session. He was ordered in sit in the center of the gym and consume an entire pepperoni pizza; if he didn’t, his teammates would be required to do additional drills and he was threatened with the possibility that he couldn’t stay on the team. 

The school and district ran a “nearly weeklong investigation” into the allegations, including viewing surveillance videos before taking action. The account of precisely what happened is disputed by George Pattakos, Wattley’s attorney, and by five players who supported the coach at the board meeting which led to Wattley’s dismissal. They claim that the player was offered chicken nuggets instead of the pizza, but that he chose to pick off the pepperoni and eat the rest of the pizza. Of course, this would have left the “pork residue” mentioned above. 

They claim, further, that an assistant coach who wanted Wattley’s job had circulated an exaggerated and deceptive description of the events to school officials and the player’s family. Pattakos also accused the board of a “rushed” decision, and claimed the coach “was doing his best to teach an extraordinary athlete an important lesson.” 

Curmie doesn’t know what happened. He doubts Wattley’s description of the events but grants that there might be some validity to it. But should Wattley and his minions have been fired? Absolutely. Even assuming other options were offered, we still have a player subjected to the emotional distress of choosing between being humiliated in front of his teammates or risk being ostracized by them. It’s an old tactic employed by authoritarian jackasses to remind everyone that they’re in charge. As Curmie is wont to say, “if you have to tell me, it ain’t so.” 

But the real problem in Curmie’s mind is in a word that may have slipped past you at first read, Gentle Reader: voluntary. The boy was being punished for skipping a voluntary session. OK, we all know that these allegedly voluntary practices are in fact just as required as the mandatory ones; they’re only called voluntary so the football coach can dominate players’ time throughout the summer and still technically not violate the rules of the school or the athletic conference. 

It’s an absolute scam, and everybody knows it, but no one is willing to say anything because… football. But, and as they say in burlesque it’s a big but, the unwritten rule is that the only punishment a coach can levy against someone who skips one of these sessions is benching him—because who plays and who doesn’t is within the legitimate purview of the coach, even of an unethical one. Wattley overstepped even that line. He’s gone, and should be. 

2). Those of us whose Congresscritter is Loony Louie Gohmert have known this for a long time, but the wider world is now learning that he truly is dumber than dirt. His recent (I was going to say “most recent,” but his stupidity is prolific, and he’s probably moved on, already) escapade was asking a representative of the Department of Agriculture if, and I quote, “there [is] anything that the National Forest Service or BLM can do to change the course of the moon’s orbit or the Earth’s orbit around the sun?” in order to curb climate change. It’s probably worth mentioning that BLM here is the Bureau of Land Management, not the other BLM. 

When Curmie first read this, he thought this had to be Andy Borowitz or the Onion. Nope: there’s video. Of course, this plays to liberal opinion of Gohmert, and we need to be cautious of going too far down that path. And to be fair, there’s a follow-up that suggests that Gohmert might, might have been joking. He reacts to a befuddled response to his earlier question with “Yeah, well, if you figure out a way that you in the Forest Service can make that change, I’d like to know.” 

If Gohmert’s question was sarcasm, then we have discovered the best dead-pan artist since Buster Keaton. But we also have something a little more problematic than simply a single moronic Congresscritter, as it would suggest a strategy to identify all attempts at mitigating climate change are either useless or illusory. Certainly a little conservation, the use of solar or other “green” energies, tax incentives associated with purchasing fuel-efficient vehicles (or disincentives to buy gas-guzzlers), restrictions on air pollutants: all these are to be abandoned. I think I’d rather go with “stupid.” 

3. One of Curmie’s Facebook friends posted a meme recently that suggests it’s an “American History Quiz.” There’s a series of questions with two possible answers: “A. Black lives” and “B. All lives.” Among the questions: “Brought to America on chains at the bottom of ships,” “Counted as 3/5 human in America,” etc. You get the idea. 

Curmiphiles who’ve been following this blog or the Facebook page for any length of time know that one thing that really annoys me is when an otherwise useful point is undercut by intellectual sloppiness or laziness. Let’s leave aside the more complex arguments and look specifically at one of those question prompts: “Enslaved in America for over 400 years.” Um… none of the above is the correct answer. 

Exactly when the first slaves in the New World arrived is unclear, but the earliest date I’ve seen is 1526, although a revolt ended that colony in a matter of months. Other historians would argue that slavery probably followed soon after the first permanent white settlement in 1565. (The 1619 project chooses their eponymous date because it was the first date of slaves in Virginia. Don’t ask me why.) The Emancipation Proclamation was 1863; the end of the Civil War was 1865. 

So… choosing the earliest date for slavery starting and the latest date for slavery ending, and we get (wait for it) 339 years. On Curmie’s planet, 339 is less than 400. You want to say “over 300 years,” fine. “Suffered prejudice,” yep. “Enslaved for over 400 years,” no. And an objective error of that magnitude renders the rest of the argument, which is valid, less persuasive. 

4. <Mumblemumble> years ago, when Curmie was a graduate student at the University of Birmingham in England, he did his banking at the local branch of Lloyd’s Bank. The choice was, to be honest, one of convenience rather than considered choice, as it was located en route between my bed-sit and the university. 

Nadia Begum and Clifford Weedon 

If he could go back in time, he might make a different choice, as the bank fired a branch manager because she helped an elderly, visually impaired customer, open his mail. Yes, Gentle Reader, you read that correctly. She assisted a customer, and the banking conglomerate sacked her for her efforts. 

Surely there’s more to this than that, right? If so, Curmie can’t find it or imagine it. Nadia Begum developed a friendship with Clifford Weedon and helped him out. But that, apparently, is against the rules, which, to be sure, descended from the mountaintop, elbowing Moses and the 10 Commandments out of the way. 

Even in the torrent of negative press Lloyd’s suffered when the BBC told the story, they continued to sniff that “we have a colleague code of responsibility in place to safeguard both our colleagues and customers…. In this instance our standards were not met.” Curmie doesn’t know which they need more: a brain or a box of laxative. 

The good news is that Ms. Begum was headhunted by Octopus Energy, whose CEO specifically wanted “Nadia’s warmth and humanity.” The other good news is that Curmie will never again have to deal with Lloyd’s Bank. 

5. Curmie isn’t sure how this case made it as far as federal court, but at least the 3rd Circuit Court of Appeals got it right. Seven years ago, Emma Semler and her friend Jenny Werstler shot up heroin in the bathroom of a West Philadelphia KFC. Werstler, who was celebrating (if that’s the word) her 20th birthday, wanted a second shot, whereupon she overdosed, and died. Semler had fled the scene, leaving her friend to her fate instead of calling for help, so she’s no angel. 

But prosecutors decided that because Semler physically passed Werstler the drugs, she was guilty of “distribution,” which carries a minimum 20-year sentence. Five years after the event, she was convicted of that presumed offense. OK, anyone with an IQ over room temperature knows that law was intended to go after dealers and pushers, not addicts. 

But some crusading DA or ADA wanted to make a name for him/herself, and so the case found its way to the appeals court, which found, quite reasonably, in the words of Judge Jane Richards Roth:

The government would have us believe that if two drug addicts jointly and simultaneously purchase methamphetamine and return home to smoke it together, a ‘distribution’ has occurred each time the addicts pass the pipe back and forth to each other. Such an interpretation diverts punishment from traffickers to addicts, who contribute to the drug trade only as end users and who already suffer disproportionally from its dangerous effects.

Semler, who seems to have cleaned herself up after the death of her friend, was certainly a contributor to Werstler’s demise, but she was hardly a “distributor.” 

Whoever brought these charges and the judge who allowed the case to go forward and even prescribed a harsher sentence than the one required by law for distribution should be fired, disbarred, and probably arrested; every juror who went along with this charade needs to be wupped up ‘side the head with a 2x4. 

6. As it happens, Curmie has a Comment of the Day on Ethics Alarms, this one on the hype surrounding the casting of black actress Jodie Turner-Smith as Anne Boleyn in a new TV mini-series currently airing on the UK’s Channel 5. You can see Jack Marshall’s original post on the subject here.