Confucius and the Fourth Circuit

Twentysomething years ago, a few months after completing my PhD, I got a phone call from my mentor in Asian theatre, who, upon learning my job search wasn’t going as well as I might have hoped, asked if I wanted to teach a couple sections of the university’s Eastern Civilizations course. I asked if I was really qualified to teach such a course. His response: “You know something, and you can read.”

 

Based largely on his recommendation, I got an interview for the position. I made no attempt to conceal my ignorance of a lot of what I’d be teaching. But the department had struggled with grad students who had lost control of their classrooms, and I’d taught full-time for ten years before entering the doctoral program; I got the job. The head of the Eastern Civ program closed the interview with “There are some books in my office you’ll want to read before you start.” I knew something, and I could read. 

That’s relevant to my consideration of the recent ruling of the Fourth Circuit Court of Appeals in Porter v. Board of Trustees of North Carolina State University, in which a tenured faculty member claimed to have been punished for arguing against certain initiatives undertaken by his department. I’m no lawyer, so there’s some legalese I’m not so sure about, and I have no interest in chasing down all the precedents cited by either the majority or the dissent to see if they really say what these judges say they say. But I know something and I can read. 

More to the point, one of the texts I taught in that Eastern Civ course was Confucius’s Analects, which I had to get to know a lot better than I did previously in order to teach it to someone else. One of the central tenets of Confucian thought was his argument against having too many laws, as no one could possibly predict all the various special circumstances surrounding every dispute. Context matters; timing matters; motives matter. Confucius’s solution was to turn everything over to a wise counselor (like him) who would weigh all the relevant elements on a case by case basis. That’s not the way our justice system works, nor would it be practical, but it’s easy to see its appeal… in theory, at least. 

Significantly, Confucius’s reservations about laws’ inability to anticipate all the possible combinations of circumstances are the first cousin if not the sibling of what Jack Marshall of Ethics Alarms calls the “ethics incompleteness principle,” which asserts that there “are always anomalies on the periphery of every normative system, no matter how sound or well articulated.” 

An extension of this is that what is lawful and what is just are related but inevitably not identical concepts. The problem is magnified when it’s not just the law, but previous court decisions, that are ambiguous. Where, for example, does the First Amendment’s guarantee of free expression leave off and an employer’s desire for a congenial and (generally speaking) united workplace begin? Does it matter if the employer is a government agency? If it’s a university? If the alleged miscreant has tenure? If the place is just a little awkward as opposed to a war zone? Is academic freedom a relevant concern? The answer to the first question appears to be “well, it depends”; all of the seemingly disjunctive questions would appear to be best answered by “sort of.” 

The basic facts are these: Stephen Porter teaches statistics in the Department of Leadership, Policy and Adult & Higher Education at North Carolina State University. He claims to have been punished—not fired, exactly, but ostracized and placed in a situation which could likely result in his position being retrenched—for being outspoken about what he perceived to be an abandonment of “rigorous methodological analysis in favor of results-driven work aimed at furthering a highly dogmatic view of ‘diversity,’ ‘equity,’ and ‘inclusion.’” 

Porter says that three moments between 2016 and 2018 are at the center of his claim. The first came in the spring of 2016, when he objected to the addition of a question about diversity on student evaluation forms because he believed the question to be insufficiently researched. 

The second occasion was two years later, when he sent an email to departmental colleagues linking to an article in Inside Higher Ed which criticized a departmental search led by Alyssa Rockenbach. Porter appended the comment, “Did you all see this? … This kind of publicity will make sure we rocket to number 1 in the rankings. Keep up the good work, Alyssa!” 

In a subsequent meeting with Penny Pasque, then the department chair, Porter argued that Rockenbach had “cut corners” in vetting a candidate “out of a desire to hire a Black scholar whose work focused on racial issues.” (That candidate, by the way, had been fired from his previous position for financial misconduct.) 

That fall, Porter published a brief blog piece entitled “ASHE Has Become a Woke Joke.” His commentary concluded, “I prefer conferences where 1) the attendees and presenters are smarter than me and 2) I constantly learn new things. That’s why I stopped attending ASHE several years ago and switched to AEFP.” [ASHE is the Association for the Study of Higher Education; AEFP is the Association for Education Finance and Policy.] 

Finally, that fall, the department considered hiring a new faculty member. Pasque changed what was originally scheduled as a meeting of the HEPA (the Higher Education Program Area) faculty to discuss the candidate, and, with only a small number of faculty present in a virtual meeting, proposed that Porter leave HEPA. 

Feeling ambushed, Porter responded, “Give me a fucking break, folks. I was the one who said [the potential hire] should come. And now I’m the bad guy because I don’t want to leave Higher Ed for a non-existent program area.” This, of course, led to further tensions, including a reprimand for his language. Things escalated from there, and Porter was involuntarily removed from HEPA and de facto prevented from having advisees because of “lack of collegiality” and complaints from graduate students (that would be a grand total of two of the sixty grad students, by the way). 

Porter claimed his comments were protected speech, and that the university violated his First Amendment rights; he sued the university and several individuals. The university saw things otherwise. The Fourth Circuit, by a vote of 2-1, agreed with the university. Unsurprisingly, for different and predictable reasons, both FIRE (who had filed an amicus brief on Porter’s behalf) and Jonathan Turley disagreed. 

Here’s where my “knowing something” becomes relevant. Curmie has no opinion about whether the relevant precedent is Pickering v. Board of Education or Garcetti v. Ceballos, but he does know how universities operate. Let’s start with a couple of points that clearly work against Porter. 

First, the chances that he’s an asshole as opposed to merely someone whose political stances the administration doesn’t like is quite high. He says his response to that student evaluation question was “was amicable in tone, although perhaps embarrassing” to the person presenting the proposal. That’s clearly a subjective, self-serving, and retrospective view (not discounting the possibility that it’s also accurate). 

And sending a taunting email to a colleague who has been embarrassed in a national publication, especially when the anonymous source for the article is quite likely to be Porter himself, is more than a little unprofessional. Copying the rest of the department only aggravates the situation. 

Secondly, Porter’s blog post did indeed damage the reputation of the university, even if he has a point, since it led to a rebuttal from the president of an important professional organization in the field in her keynote address. The old adage of “don’t shit where you eat” is advice Porter does not seem to have taken to heart. 

And it’s pretty clear that Porter did little to mend the fences with his departmental colleagues when warned that failure to do so would have repercussions. 

But there are considerations in the other direction, too. (If there are lawyers reading this and Curmie is screwing up the legal arguments, please correct him.) First off, being a curmudgeon is (I trust, given my sobriquet) not illegal, and comments remain protected speech except in specific instances—sedition, incitement, slander, etc. (There’s another exception we’ll come to in a moment.) 

The fact that Porter is a tenured faculty member at a state university carries three (count ‘em, three!) protections. 1). Whereas most businesses have the authority to sanction employee speech (“you can say what you want, you just can’t do so and work for us”), there’s a specific exemption for university faculty, at least in certain circumstances. 2). Private enterprises, including universities, have at least some authority to maintain their own rules, provided they are clearly stated and equitably enforced, but state universities do not have this freedom. 3). Tenure brings with it the full degree of academic freedom, which has come to include the ability to criticize the decisions of their administration. 

The majority decision rests, apparently, on two foundations. One is that the presumed lack of chronological propinquity between the blog post and the department chair’s response, and between Porter’s outburst in the meeting and his removal from HEPA indicates that the latter is not a direct result of the former. Here’s where quoting Dr. Porter directly (from a different context) seems the appropriate rejoinder: “Give me a fucking break, folks!” Of course it was retaliation. The court’s argument that the time lapse means anything suggests an ignorance of both the way universities operate and, indeed, of human nature. (It also doesn’t speak well for Porter’s legal team.) 

The other argument is that Porter was speaking as an employee, and is therefore not entitled to the First Amendment protections he would have as a private citizen. (This is why Elon Musk had the legal right to fire that engineer who told him the truth instead of what he wanted to hear.) Indeed, Porter supposedly said he was “just doing [his] job” in questioning the student evaluation proposal. If nothing else, this comment elicited one of my all-time favorite lines in judicial decisions: in his dissent, Judge Julius N. Richardson writes, “Superman deflects praise by saying that he’s ‘just doing his job,’ even though the citizens of Metropolis never cut him a paycheck.” 

In fact, that episode could be interpreted either way. Yes, Porter was acting as an employee in one sense, but as a statistician with a particular interest in this kind of survey, he was employing his particular skills. Does this qualify as his “research,” which would make his speech protected? I’m gonna call this one a wash. 

The blog post would seem to meet the requirements of protected speech: it’s written as a private citizen, expressing an opinion on an area of public interest. (I’m interested, and I have no connections, positive or negative, to the organization in question.) Still, the blog does identify Porter as a faculty member at North Carolina State… or at least it does now; I presume it did when the essay was posted. Does that mean he was functioning as an employee? I don’t think so, but one could make the case. 

Finally, there’s the business about the new hire and the ensuing brouhaha. Here, there’s no question that Porter was uncivil, but he was certainly provoked. Curmie is pretty certain he never told colleagues to “give me a fucking break,” but substituting “damned” for “fucking” would increase the likelihood he’s uttered that sentence fairly significantly. 

Yes, Porter was “uncollegial” at that moment, but Curmie offers the following in response. We’re talking about a one instance (or perhaps two or three, if we include the other incidents) over the period of several years. This does not a pattern make. (Yes, there may have been other incidents that didn’t make it to the court case.) 

Collegiality is, of course, a good thing in general terms, and it is essential to some degree in some disciplines: in my field, theatre, for instance, if the director and designers can’t get along, it will indeed affect the work product of the institution. But even here, there’s no need to like each other, just to work collaboratively. I don’t know enough about what people in a Leadership, Policy and Adult & Higher Education department do, but from an outsider’s perspective, it doesn’t seem like any high degree of collegiality would be a sine qua non. Moreover, whereas collegiality is sometimes, probably too often, a consideration as to whether someone gets a promotion, Curmie has never seen it used in what amounts to a demotion. 

Finally, and most importantly, there’s an increasingly ominous trend to use “uncollegial” to mean “insufficiently obeisant.” Disagreements are at the center of the academic project. Similarly, the most valuable comments on, for example, Ethics Alarms, aren’t the ones that say “You’re absolutely right, Jack”; they’re the variations on “yeah, but…” or even “I disagree because…” There are some issues on which we’ll never agree, but hearing an articulate rationale for an opinion with which we disagree is how we learn, and that, Gentle Reader, is a good thing. 

When Curmie started his career, the concept of “shared governance” was alive and well. It’s now on life support, in danger of flat-lining in the very near future. Administrators are increasingly overpaid relative to faculty, increasingly autocratic, increasingly dismissive of anyone who questions their latest harebrained scheme. And Trustees/Regents/whatever at state universities listen only to the governor who appointed them or, occasionally, to high-ranking administrators; students, faculty, staff, and alumni are ignored… unless, of course, they happen to be rich. 

So, where does this leave us in this case? It ought to be self-evident that legal decisions ought to be based on the law, but here the law doesn’t really clarify things very much, as so much depends on definitions that are neither clear nor fixed. But now is when we listen to Confucius and search out the most just solution. 

It’s possible that stronger legal case is that of the university.  But it’s clear to me, at least, that Dr. Porter is the more aggrieved party. I wouldn’t necessarily relish having him as a colleague, but from my perspective the Fourth Circuit got this one wrong. Of course, Curmie was an opinionated professor who occasionally had the audacity to say out loud that not all decisions emanating from administrators’ offices were divinely inspired, so perhaps he’s not the most unbiased source.

This piece was written as the third installment of “Curmie’s Conjectures” on the Ethics Alarms blog.  I have made a couple of minor stylistic changes and corrected a typo or two here, but the argument remains the same.  As with earlier such posts, there is much more likely to be discussion there than here; you are welcome to head there... or not.

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.

The Junk and the Junk

A recent decision by the 4th Circuit Court of Appeals simultaneously engenders legitimate debate about the 4th amendment and releases my inner 12-year-old. “The Case of the Rock on the Rod”… “The Stash on the Staff”… “What’s That Sack by Your Sac?”… There, I’m done. For now.

In January 2009, Joseph Edwards was arrested by Baltimore police on a complaint by his ex-girlfriend, who claims he had threatened her with a gun. Quite reasonably, the police patted him down to make sure he wasn’t carrying a weapon at the time of his arrest. He wasn’t.

But, after Edwards had been handcuffed and before he was transported to the police station, officers decided to check one more time. This time, the officers surrounded him and pulled the top of his sweatpants and underwear away from his body, shining a flashlight at his privates. When what to their wondering eyes should appear… not a gun, of course, but a baggie containing 43 smaller plastic bags, which in turn contained just short of three grams of crack cocaine.

But, as you have no doubt already determined from the puerile display in my introductory paragraph, the baggie was tied around Edwards’s penis. Detective Dennis Bailey “put on gloves, took a knife that he had in his possession, and cut the sandwich baggie off Edwards’ penis with the knife.” Edwards was not hurt in the incident. That’s pretty much the entirety of the relevant information: there is much strutting about with respect to whether this constituted a strip search and similar triviata. But the essential facts are noted above.

“So, what’s the problem?,” you might well ask. Well, after a conditional guilty plea to possession with intent to distribute cocaine base, Edwards appealed, arguing that the search was unreasonable. And the 4th Circuit not only agreed, but vacated the conviction.

Ah, you think, that’s because there was no legitimate reason to search inside Mr. Edwards’s underwear: the pat-down, coupled with the fact that Mr. Edwards’s hands were handcuffed behind his back, were surely enough to ensure the officers’ safety. There was no indication that Edwards was in possession of crack, therefore no probable cause for the search. Nope, not it.

Oh, so it was the public nature of what is called a “sexually invasive search.” There was no reason to subject Edwards to search of what’s inside his underwear in public: take him back to the station and do it there. Nope, not it.

What, then? The conviction was vacated because Bailey used a knife to secure the evidence. The finding is based primarily if not solely on the argument that “the drugs were removed from Edwards’ person in an unnecessarily dangerous, and thus unreasonable, manner.” There’s more:

Moreover, assuming, without deciding, that the government’s rationale supports the reasonableness of the decision to search inside Edwards’ underwear, this rationale does not justify the dangerous manner in which the contraband was retrieved from his genital area once the contraband was discovered. In fact, the government provides no reason whatsoever why the concealed contraband, once the police had determined that it clearly was not a handgun, could not have been removed under circumstances less dangerous to Edwards.

Buh?

OK, Gentle Reader, here’s where I remind you that I’m neither a lawyer nor a Constitutional scholar, merely a more-interested-than-the-average-person layman. I can’t tell you if, or how, U.S. v. Robinson or Bell v. Wolfish pertain, legally. I’m confused by why the government can’t claim inevitable discovery on the appeal because they didn’t make that point earlier, but Edwards can actually win the case with an argument he doesn’t seem to have made at all. (His argument was that the search was illegal, not that it was inappropriately conducted.)

I am, in other words, just a grumpy old guy arguing on the basis of what makes sense. And what makes sense might conceivably result in what actually happened in this case, but not for the reasons articulated by Judge Barbara Milano Keenan, who wrote the majority opinion.

The Court never made a ruling on the justification for the search per se, which seems to me to be the strongest case Edwards had. The only reasonable criterion to justify a search, even of a known drug dealer (in the absence of specific evidence that he carrying right now) is officer safety. That’s a pretty shaky argument, frankly. The suspect was handcuffed and had been patted down, we presume thoroughly (and, if not, whose fault was that?). This is Joseph Edwards we’re talking about, not Harry Houdini. But apparently there’s legal precedent, so maybe…

There is no doubt that the police could have handled this situation better. Having found something… erm… interesting that clearly wasn’t a weapon, they could easily have transported Edwards to the station and removed the baggie there: this would provide for greater privacy, better light (apparently Bailey didn’t even use a flashlight for better vision during the baggie-echtomy), and probably a safer environment all around. There’s a significant difference, however, between saying that a different course of action would have been preferable and saying the one actually enacted was unconstitutional. And I confess myself unmoved by the suggestion that the use of the knife (as opposed to being arrested in a public venue) “could only cause fear and humiliation.”

After all, who was responsible for the situation? The cops? No, it was Mr. Edwards who decided to attach his stuff to his stuff. I can think of only two motivations. One would be that he knew he might be stopped by the police and suspected (with reason) that cops aren’t exactly thrilled about conducting the kind of search that ultimately uncovered his drugs. The other is a sort of burlesque routine we can see the likes of Benny Hill enacting: “Hmm… I’ve got to carry this baggie full of illicit drugs around and I don’t have any pockets. [loosens drawstring of sweatpants, looks within] Ooooh… what’s that thing? [smirking take to audience] Let’s tie it to that!”

Either way, there’s inevitably a tradeoff between safety and propriety, as dissenting Judge Alberto Diaz notes. He writes that the options proposed by the majority,

… untying, removing, or tearing the baggie—would require that officers physically touch Edwards’ penis. In my view, however, a rule that directs officers to place their hands on a defendant’s genitals as a first option for seizing contraband in a baggie that the defendant has chosen to strap to his penis seems no more attractive than the careful use of a knife.

Let’s face it, I’m guessing the founding fathers didn’t envision a constitutional crisis about the correct means by which to remove baggies of drugs from penii. Is it relevant, by the way, that the two female judges suggested means which, though arguably safer, would involve more physical contact with Mr. Edwards’s genitalia, and the male judge didn’t like those suggestions?

It’s also worth mentioning, as Diaz does, that “The district court, moreover, made no mention of the knife in its ruling. This omission was not an oversight, but rather reflected the fact that the knife was not the focus of the parties’ evidentiary presentations.”

More to the point, if we grant the legitimacy of the search itself, irrespective of the means by which it was conducted, the drugs had already been discovered, legally, by the time the allegedly inappropriate removal. It therefore makes no sense to suppress the evidence. Mr. Edwards might have grounds for a complaint or even a civil suit, but that’s another matter altogether.

Quoting Judge Diaz’s dissent, again:

had the officers not used what the majority perceives to be an unreasonable method to remove the drug baggie, they nevertheless would have discovered the contraband and (at some point) seized it in some other manner. Put simply, the plainly visible contraband was already discovered before the officers determined to use a knife to remove it. Thus, I question whether the record supports the causal connection that Hudson [v. Michigan] requires before resorting “to the massive remedy of suppressing evidence of guilt.”

The bottom line is that I’m willing to grant suppression of the evidence because the search itself was illegal. But if we’re going to grant the legitimacy of the search, then we need to keep the evidence. The majority decision may be legally sound. If so, it’s a bad law.

But we did get an opportunity to snicker at stupid dick jokes because of this case. At least that’s something.

[Two side notes, completely off topic.]

1). Despite not writing here until February, and taking over a month off in October and November, I’ve managed to crank out 100 blog pieces in 2011. That’s small potatoes for many people, of course, but for me it’s something of an accomplishment. I thank you, Gentle Reader, for your support, your commentary and for your “likes” on the Facebook page. I don’t know if I’ll write anything else before Sunday. If not (or even if so, obviously), Happy New Year, one and all.

2). A reminder to vote, if you haven’t already done so, for the 1st Annual (Maybe) Curmie Award, presented to whoever most embarrasses the profession of education. You must vote on the electronic ballot in the upper-right corner of this page; comments with indications of preferences will not be counted. Descriptions of the nominees are found here.]