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…

Updates and Sequels

Updates (in reverse chronological order of when I first wrote about the story):

My story: “Earthquakes in Ohio: Thank Your Friendly Neighborhood Fracker,” dated January 2, 2012.

Update: I wrote then about the area where my wife grew up. This week, there was a Mw4.8 earthquake here in East Texas. Oh, so coincidentally, there’s a fracking operation going not far away. OK, this could have been chance. There were minor tremors measured in the area before there was such a thing as fracking. But the report by the local television station does little to allay my suspicions: wow, there was a small quake as recently as 31 years ago (!), and the mouthpiece for the people responsible for fracking says it’s not a problem.

That would be one Ragan Dickens of the Louisiana Oil and Gas Association. Suffice it to say that Mr. Dickens is better at parroting Republican talking points than he is at geology, in which he has no apparent background. Here’s his smirking commentary, “If earthquakes are caused by fracking, then were those earthquakes in the 1800’s preemptive earthquakes because they knew fracking was coming? It's a silly comparison.” This argument, and I use the term loosely, is trotting out the old tobacco industry subterfuge. Today version: “Donna Summer just died of lung cancer, and she didn’t smoke. Therefore, cigarettes aren’t bad for you.” Only an idiot would buy such an argument. Only a sleazebag would make it.

Deputy Secretary of the Interior David Hayes has slightly better credentials, and his argument at least makes sense: “there is no evidence to suggest that hydraulic fracturing itself is the cause of the increased rate of earthquakes.” Keyword: “itself.” No, it’s the injection of waste-water from fracking operations that causes the quakes. From the same DOI report as the single sentence that gets quoted by fracking proponents (and lazy reporters from local television stations): “USGS’s scientists have found, however, that at some locations the increase in seismicity coincides with the injection of wastewater in deep disposal wells.” See, not fracking. Dealing with the inevitable results of fracking. Am I crazy, or is this a distinction without a difference?

Hence, the commentary of Ben McGee of the U.S. Geological Survey (you know, an actual expert): “Of course you have to have a fault present to have movement along a fault, but water or fluid injected into the earth in the vicinity of faults of in faults increase the likelihood that those faults will move.” Makes sense to me. It also makes sense to me to take a time-out before we go too far down this fracking road.

My story: “Stupidest Legislative “Money-Saving” Plan of the Month: The First Three Nominees,” dated October 15, 2011.

Update: Camden County, Georgia, has apparently abandoned the profoundly silly idea of employing prisoners as firefighters in a money-saving stratagem. A couple other Georgia counties have also considered but scrapped the idea. As Carroll County Commissioner Kevin Jackson puts it, “It’s not a good idea at all. We don’t need prisoners inside the homes of our citizens.”

Of course, there’s a dissenting voice: Bill Twomey of Sumter County, who thinks his county’s plan, underway for a couple of years already, is “a model program” despite objections from, say, the Department of Corrections. Remind me not to move to Sumter County.

My story: “Celebrating the Continued Health of a Mass Murderer,” dated August 20, 2011.

Update: Convicted Lockerbie bomber Abdel Baset al-Megrahi died this week in Tripoli. As might be expected, there’s a fresh round of indignation from the politicians, the pundits, and the populace. Families of the victims were especially outpsoken. Eileen Walsh, for example, lost three family members in the bombing. Her reaction to al-Megrahi’s death?

Good riddance to him and I hope he rots in hell.

I have no feelings apart from anger and disgust for this man. The fact that he was allowed to be with his family while he took two-and-a-half years to die makes me ill.

Because of him my mother died of cancer without most of her family around to comfort her.

I feel so betrayed by the Scottish government for what they did, and the British government played its part too. He should have died in jail.

Still, one father of a victim expressed his belief that al-Megrahi’s protestations of innocence were genuine. Jim Swire said, “'I've been satisfied for some years that this man had nothing to do with the murder of my daughter and I grit my teeth every time I hear newscasters say 'Lockerbie bomber has died. This is a sad day.”

It is unclear whether al-Megrahi’s death will help or hurt efforts to get to the truth. Some, like Eileen Monetti, who lost a son in the Lockerbie bombing, says that “Megrahi was a distraction that stopped us from finding out the truth. Now that Megrahi has died hopefully the Libyan government will give more information to the US and the UK about the bombing.” Of course, as Senator Charles Schumer points out, al-Megrahi’s death may have the opposite effect, allowing the American and British governments to continue to be, in Schumer’s words, “not forthcoming.” As far as I’m concerned , if there’s a little closure in this for the families, amen to that.

There is, by the way, an interesting article in the Wall Street Journal by Dr. Karol Sikora, in which he outlines his reasons for giving al-Megrahi only three months to live at the time of his compassionate release nearly three years ago. (It turns out by the way, that his report was not received by the authorities to factor into their decision; the doctor in charge, Andrew Fraser, clearly came to the same conclusions independently.) Dr. Sikora makes it clear that such predictions are guesswork—educated guesswork, perhaps, but guesswork nonetheless. He also makes the same point I made last August. In his words:

there have been significant advances since 2009 in the treatment of prostate cancer that has spread. These include drugs such as abiraterone, cabazitaxel, alpharadin and medivation, which Megrahi probably received and are still not widely available in the U.K. We judged his prognosis based on his treatment as an NHS patient in Glasgow at the time, when not even standard docetaxel chemotherapy was offered.

Whether one or more of these drugs extended al-Megrahi’s life, or whether it was simply luck, we’ll never know. But I’d like to think that this sorry piece of excrement contributed to prolonging the lives of, ultimately, as many people as he callously murdered. He didn’t do it on purpose, of course, but he was almost certainly a guinea pig for cancer treatments. All those chemicals will probably reduce his value as fertilizer, however. Pity, that.

My story: “A little respect, please, for our canine heroes,” dated May 26, 2011.

Update: Sadly, one of the few pieces of absolutely slam-dunk legislation, to list military working dogs as personnel rather than equipment, thereby facilitating their adoption subsequent to their service, continues to be tied up in committee. Just a couple of weeks ago, there was another television piece on the subject, this one on a local news show in Atlanta. The problem is that since these dogs are considered equipment, they’re routinely euthanized rather than even having the chance to be adopted. There are plenty of ex-servicemen and –women who’d gladly adopt their “best friend,” but not at the cost of thousands of dollars (the dogs are officially abandoned equipment, no longer the property of the government, so they can’t simply be loaded onto to plane that’s heading stateside, anyway) and mountains of red tape.

The article talks about dogs too aggressive or too sick to be adopted. Fine. That makes sense. But many dogs are perfectly adoptable but are put down, anyway, because Congress can’t get their collective heads out of their collective asses long enough to fix an obviously fixable situation. Have the military ship the dogs back to the States. Allow charitable organizations to help the dogs and prospective owners find each other. How hard is that?

Look, I get it that this isn’t the highest imaginable priority right now. But maybe, just maybe, it could be the kind of bill that would allow those on the left and on the right to see that the other guy isn’t really so bad; he just thinks we ought to have a different economic strategy than the one I like. And since this seems an intractable problem (this issue has been around since the ‘90s), maybe solving it would give us all a little confidence.

Senator Schumer took up the cause of one ex-marine and the dog she worked with in Iraq. That’s nice, but it isn’t enough. Fix the damned law, sir. (There is, by the way, a petition at change.org, but I can’t tell how old it is; there’s another at forcechange.com that looks recent.)

My story: “Antiphon Is Always Welcome at Our Tea Party,” dated October 28, 2010.

Update: Well, not an update on content, per se, but a note that I will in fact be presenting a paper at this summer’s Association for Theatre in Higher Education conference on using Antiphon’s Second Tetralogy as a teaching tool for discussions of Greek tragedy.

My story: “Two Cinco de Mayo stories (and a coda),” dated May 10, 2010.

Update: Three of the students sent home for wearing American flags on their clothing on the Mexican-American pseudo-holiday two years ago filed suit against the school. They lost last November, but announced in February that they intended to appeal to the 9th Circuit Court of Appeals. As might be expected, the case has attracted the attention of the First Amendment Center and of the American Freedom Law Center; the latter has in fact filed briefs (an opening brief and a reply brief) on the boys’ behalf. It should be noted that the FAC is primarily interested in education; they do not participate directly in litigation. The AFLC, on the other hand, is an advocacy group which purports to be about Constitutional rights and is in fact about advancing a right-wing and indeed anti-Constitutional agenda, as indicated by their support (for example) for the heinous “Islamic Law in America” conference, organized by batshit crazy Pamela Geller and dedicated to anti-Islamic propaganda under the guise of a fight against a completely non-existent attempt to impose Sharia law.

That doesn’t mean they’re always wrong, though, and I confess their argument in the case makes a lot more sense than the lower court ruling does. The plaintiffs in this case are increasingly acting like the “little jerk-offs” I described them as being two years ago (not least by suing over something so minor), but it strikes me that any reasonable reading of the Constitution supports them in this instance. This case will be interesting to follow as the 9th circuit weighs in. I wouldn't be surprised to see this end up at the SCOTUS, either way.

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.