Two Updates (more to follow)

Curmie is, as noted on the Facebook page, way behind in his writing. Here’s a first salvo, with updates on a couple of stories I’ve discussed earlier. There are more updates to come, but let’s keep the posts of manageable size. We’ll take the cases in chronological order of the original posts.

We start, then, with a case I’ve actually written about three times: first in May of 2010, then in November of 2011, and most recently in May of 2012.

The offending garments.

The short version of the events: five students at Live Oak High School in Morgan Hill High School in California wore clothing with American flag designs to school on May 5 (Cinco de Mayo), 2010. Although there were no substantive problems by lunch-time, the Assistant Principal, Miguel Rodriguez nonetheless told the boys to turn their shirts inside out, go home, or face suspension. They refused. After the fact, Rodriguez invoked the “potential for disruption” argument that is the only loophole available in what is otherwise an open and shut 1st Amendment case.

He also claimed that he hadn’t seen any students wearing Mexican flag apparel, although news reports at the time make it clear that numerous students were in fact doing so. Indeed, whereas Rodriguez’s actions were arbitrary, petulant, and almost certainly unconstitutional, he—like generations of cops and other violators of civil liberties before him—dutifully consulted his lawyer, found out what wildly distorted version of his actual mindset might get him off the hook, and proclaimed that as his motivation all along.

The boys’ parents sued a month or so later—not for damages, but just to prove a point—only to have their case rejected by federal judge (and serial prevaricator) James Ware. They tried again, but (and here’s where we get to stuff I haven’t discussed before) this February their appeal was denied by the 9th Circuit Court of Appeals.

Needless to say, although I still think the boys were and are “right little assholes” (my term in 2011), they also have the stronger case, at least in common-sense terms. As I wrote in 2011,

… the whole “potential for disruption” argument is now, and frankly always has been, little more than an excuse for intellectual cowardice. It’s what gets controversial speakers uninvited from college campuses. It’s what justifies the worst excesses of “political correctness.” It’s what craven administrators, mayors, and police chiefs hide behind when they really, really, really want to censor speech (cf. the #Occupy folks) but know they have to circumvent that pesky First Amendment somehow.

Or, as someone with considerably better legal credentials than mine—Eugene Volokh—puts it:

This is a classic “heckler’s veto”—thugs threatening to attack the speaker, and government officials suppressing the speech to prevent such violence. “Heckler’s vetoes” are generally not allowed under First Amendment law; the government should generally protect the speaker and threaten to arrest the thugs, not suppress the speaker’s speech.

Volokh then describes the exception to this principle as expressed in the 1969 Supreme Court ruling in Tinker v. Des Moines Independent Community School District, and says the 9th Circuit “might be” right in purely legal terms to use this as the guiding authority.

More importantly, however, he adds the following note:

… even if the judges are right, the situation in the school seems very bad. Somehow, we’ve reached the point that students can’t safely display the American flag in an American school, because of a fear that other students will attack them for it—and the school feels unable to prevent such attacks (by punishing the threateners and the attackers, and by teaching students tolerance for other students’ speech). Something is badly wrong, whether such an incident happens on May 5 or any other day.

And this is especially so because behavior that gets rewarded gets repeated [emphasis his]. The school taught its students a simple lesson: If you dislike speech and want it suppressed, then you can get what you want by threatening violence against the speakers. The school will cave in, the speakers will be shut up, and you and your ideology will win. When thuggery pays, the result is more thuggery. Is that the education we want our students to be getting?

This is indeed the lesson that will be learned, that the heckler’s veto works. This is why exceptions must be rare, and why, irrespective of the legalities of the case, justice took a shot to the solar plexus in this case.

Next up: schools that force students to divulge Facebook passwords or open their accounts the prying gaze of school officials. I didn’t write about the specific case in question here, but I talked about the phenomenon in May, 2012 in a case in Geneva, Illinois in which busybody administrators, responding to rumors which had nothing to do with school and nothing to do with violations of the law, demanded that a 7th-grade girl open her Facebook page for their delectation.

Riley Stratton

This update is about variation on the same phenomenon at roughly the same time—except for a different girl, a different Midwestern state, a different sorry excuse for school administrators. This time it was then-6th grader Riley Stratton in Minnewaska, Minnesota who was subjected to the humiliation of having her private social media posts pawed over by both school and police officials. (N.B., her friends’ posts were, of course, also subject to scrutiny, although their authors weren’t even suspected of wrong-doing.) 

First, she was given an in-school suspension for posting, from home, that she hated a “mean” hall monitor. She was 13, remember. That kind of response happens. Then, having been punished for something that is none of the school’s damned business, she took to Facebook again to wonder which alleged friend had narked on her. Another punishment from the school. And finally, the mother of a male friend got her skivvies in a twist that her son and Riley had engaged in an on-line conversation about sex. Naturally, it couldn’t have been innocent, or the same conversation they could have in person, or instigated by the boy, so school officials, who have more prurient interest than their charges, the brains of a banana slug, and the moral courage of overcooked linguine, demanded—in the presence of a sheriff but not of Riley’s mother—all her passwords so they could get their rocks off peeping at an adolescent girl’s secrets.

Yeah, yeah, sure. It was all for the best of intentions. “The school’s intent wasn’t to be mean or bully this student, but to really remedy someone getting off track a little,” quoth Superintendent Greg Schmidt. If you want to see someone who’s off track (and more than a little, at that), Mr. Schmidt, look in the fucking mirror, you voyeuristic asshole. What students—any students—say on social media is NONE OF YOUR BUSINESS unless it significantly affects the operation of the school per se: a threat of violence, for example. This obviously doesn’t qualify. Butt out.

What’s new is that young Ms. Stratton (or her parents) enlisted the help of the American Civil Liberties Union, sued (or at least threatened to do so), and got an out-of-court settlement. Here are the details, according to the ACLU’s press release:

As part of the settlement the School District agreed to change its policies to better protect students’ privacy and train its staff on the new policy to ensure it is correctly followed. The School District also agreed to a $70,000 settlement which will be divided between the Strattons, for damages, and the ACLU-MN to cover case costs and support future ACLU-MN efforts to protect the civil liberties of Minnesotans.

“We are pleased with the settlement and hope this sends a clear message to other schools that it is bad policy to police students behavior on social media,” stated Charles Samuelson, Executive Director of the ACLU-MN. “There may be times when it is appropriate for schools to intervene, but only in extreme circumstances where there are true threats or safety risks.”

The consummation devoutly to be wished here is that maybe, just maybe, some other school district somewhere will collectively think twice before callously and self-righteously invading the privacy of its students. Curmie isn’t holding his breath, but stranger things have happened.

More updates forthcoming…

Sorry: Patriotism Is Not Welcome Here

It has been too long since I posted here, and much has happened in the interim. I do want to talk about the #Occupy movement, both in theory and in practice, but that post will require more time than I have tonight, and I want to get something posted (among other things, I promised someone who included me on their blogroll that I’d post at least once a month… a promise I technically didn’t quite keep, as it is).

Anyway, one of the stories that attracted little attention amidst the horrific actions of police across the country and the antics of whoever happens to be the current GOP Flavor of the Month, is the follow-up to an incident I outlined a year and a half ago. Here was my take at the time:

In Morgan Hill, CA, a group of five boys wore American flag clothing—bandanas, shirts, shorts—and were told that such apparel was inappropriate. So far, it sounds like something from my youth: in those halcyon days, clothing featuring a flag motif was often worn by protesters against the Vietnam War, and, because such designs tended to be found on the seats of jeans, or in other places where the symbol might touch the ground or otherwise be defaced, we were forbidden to wear anything with an American flag. Now, of course, such apparel is considered patriotic.

Anyway, these guys show up at school wearing this stuff and the Head Moron Assistant Principal tells them they’ve got to take it off, go home, or face suspension. You see, it was Cinco de Mayo, and expressions of American patriotism were deemed insensitive to Hispanic students. OK, I’ll say this once: Give me a damned break.

A month or so later, the boys’ parents filed suit: their lawyer spelled out what they wanted: “‘We’re not seeking money damages, we are asking the court for an order that the school acted unconstitutionally by restricting the students first amendment rights. And we are also asking the court for an injunctive relief, indicating the school is forbidden from practicing those policies in the future,’ said Attorney William Becker.”

All things considered, that was a pretty reasonable demand, given the state of the American judicial system, in which suing people for the most insignificant of slights has become de rigeur.

Now comes word that the suit was dismissed by federal judge James Ware (yes, that would be the James Ware whose nomination to the Court of Appeals in 1997-98 was derailed by evidence that he is a serial liar. For the record, he was appointed to his current post by Bush I and subsequently nominated to the Court of Appeals by Clinton: he is, then, a non-partisan incompetent). The defendants—the school district and the (now former) Principal and (still, apparently) Assistant Principal—argued:

• that the claim against the district was banned by the 11th amendment

• that free speech rights don’t apply in this case because the school officials suspected the potential for “disruption”

• that the plaintiffs offered no evidence they were discriminated against

• that the school’s dress code provides “adequate notice of what attire is prohibited”

OK, I’m not a lawyer, so I look at what makes sense, not what legal precedent might be. The fact that “the Ninth Circuit has consistently held in California, because of the manner in which funds are dispersed to school districts by the state, school districts are agencies of the state for sovereign immunity purposes” tells me only that the Ninth Circuit may well have been home to some rather dim bulbs over the years.

More importantly, the whole “potential for disruption” argument is now, and frankly always has been, little more than an excuse for intellectual cowardice. It’s what gets controversial speakers uninvited from college campuses. It’s what justifies the worst excesses of “political correctness.” It’s what craven administrators, mayors, and police chiefs hide behind when they really, really, really want to censor speech (cf. the #Occupy folks) but know they have to circumvent that pesky First Amendment somehow.

Which brings us to the most colossally, stupendously, mind-meltingly inane part of Judge Ware’s cretinous decision:

Defendants have provided a non-discriminatory basis for asking Plaintiffs to remove their American flag attire. Defendants have put forth significant evidence demonstrating that Plaintiffs were asked to change clothes in order to protect their own safety. Plaintiffs have not offered any evidence demonstrating that students wearing the colors of the Mexican flag were targeted for violence. To the contrary, the undisputed evidence shows that Plaintiffs were the only students on campus whose safety was threatened that day, at least to the knowledge of Defendants. In addition, Defendant Rodriguez [the Assistant Principal] has testified that he did not see any students wearing the Mexican flag on their clothing during the day. He also testified that he did not see any students with Mexican flags displayed on their person until he saw photos in the newspaper in the days following Cinco de Mayo.

Ware therefore dismissed the “equal protection” argument. Please, someone, tell me that Ware is indeed the stupidest federal judge in the country, because if he isn’t, then all is lost. Let’s parse out what passes for argument here. Basically, it boils down to this:

“You have freedom of speech unless you do something completely inoffensive—as evidenced by the statement at the time that the students are free to wear American flag clothing any other day of the school year—that some over-sensitive jackass who disagrees with you might use as a pretense for violence. In that case, of course, it is not that student’s right to commit a felony that ought to be curtailed, but your 1st Amendment rights to free expression. Moreover, since the Assistant Principal can’t be expected to do his damned job and know what’s going on in the school, he can claim that your self-evident claim to unequal treatment doesn’t really hold because he didn’t see what everyone else in the school saw... and what appeared in the local media.” [I think he’s bucking for a job in the UC-Davis administration.]

Seriously, what would happen if the roles were reversed: if it were the Hispanic students who were prevented from expressing their ethnic pride on this trumped-up holiday little celebrated in their ancestral homeland because of the threat of violence from a gang of Anglo punks? How condescending would the “for your own protection” pabulum sound? How stupid would suppressing the inoffensive in order to pander to the potentially violent seem? How outraged would the left-leaning punditry (other than moi, bien sûr) be?

I have little doubt that the plaintiffs in this case are right little assholes, and quite possibly racists. But anyone who thinks Judge Ware would have ruled the same way had it been the “minority” students whose rights were being infringed is stupider than he is. And that’s saying rather a lot.