Contemplating Trump v. Barbara

 

This was intended to be the first of a handful of topics for Curmie to discuss with a paragraph or two devoted to each story.  It kinda took on a life of its own: enough to be a stand-alone piece.  Curmie will (or perhaps won’t) write about those other issues in due course.  Anyway…

The SCOTUS ruling on birthright citizenship was both welcome and disturbing.  It is troubling that the court even looked at Dear Leader’s strained argument; that the decision was less than unanimous is unconscionable.  Of course, Alito and Thomas are nothing if not corrupt partisan hacks; Curmie expected better from Gorsuch, though.  (Kavanaugh’s partial dissent is at least pretty much coherent even if Curmie disagrees with his conclusions; that’s the highest praise Curmie has ever given Kavanaugh, btw.)  The 14th Amendment is strikingly clear: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” 

The pseudo-Christian right offers objections: that somehow babies born to mothers in the country temporarily or illegally are not “subject to the jurisdiction” of the US, and that the world has changed since 1868.  The first argument is patently absurd (the fact that Folarin Balogun, the leading US goal-scorer in this year’s World Cup, was born to such a “temporary” resident makes Curmie smirk a little).  The second claim is both self-evident and irrelevant to the Trump v. Barbara judgment.  Well, there’s a third argument that we’ll get to in a moment. 

We’ll leave aside Trump’s own rhetoric, both the nationalist/racist stuff about protecting American values and the outright lies about being the only country in the world to have birthright citizenship, and move on to the real issues.

The 14th Amendment, written in the wake of the horrific Dred Scott decision, was intended primarily to ensure the rights of newly-freed slaves and their descendants.  The “subject to the jurisdiction” business was clarified in US v. Wong Kim Ark in 1898.  Basing their decision largely on English common law, the court declared the only exceptions to be “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory,” and “Indians not taxed.”  In the absence of a renunciation of American citizenship or the declaration of loyalty to some other nation, everyone else born in the US is a citizen thereof.  It’s time for Curmie to repeat that he’s not a lawyer, but all this seems pretty straightforward, and indeed every subsequent case has been decided on similar grounds.

To be fair, the left’s sniping that Marco Rubio and three of Trump’s children would be denied citizenship by Trump’s policy is a cheap shot.  Executive Order 14160 specifically states that “Nothing in this order shall be construed to affect the entitlement of other individuals, including children of lawful permanent residents, to obtain documentation of their United States citizenship.”  Granted, too, it’s certainly possible for one SCOTUS to overturn the ruling of an earlier version.  US v. Ark is itself a good example.  In more recent times, Brown v. Topeka overturned Plessy v. Ferguson; the Dobbs decision overturned Roe v. Wade.  So it’s possible for this SCOTUS to reverse some or all of the US v. Ark findings.  But the Constitution itself cannot be overturned by SCOTUS, only by amendment or a Constitutional Convention. 

It’s interesting, too, that opponents of birthright citizenship want to quibble over a phrase in the 14th Amendment, but a lot of those same people pretend that a much stronger case about the 2nd doesn’t exist.  Curmie thinks the right to bear arms, as described in that amendment, seems to exist primarily to support “a well-regulated militia.”  There’s obviously room for debate here, and there’s no conceivable way the fledgling government of the late 18th century would have attempted to take guns away from hunters or westward explorers and settlers.  But there’s a lot stronger constitutional authority for some form of gun control than for denying birthright citizenship.  (Curmie also notes here, as he’s done before, that personal ownership of some weapons is indeed illegal.  We’re not talking about drawing a line that’s never existed; it’s about possibly moving one that’s already there.)

Considerations of the 2nd Amendment and the debate over gun control also lead us inexorably to the argument that… wait for it… times have changed.  Weaponry is a lot different now than in was in the late 18th century.  The revolver as we now think of it wasn’t invented until 45 years after the Bill of Rights was ratified.  The enclosed cartridge didn’t come along for another 18 years (a little longer than that for an American-made version).  Even in all those Old West movies set in the late 19th century, where the good guy and the bad guy both carried a pair of six-shooters, you get 12 shots and then have to re-load, one bullet at a time.  That’s a far cry from what a currently completely legal semi-automatic rifle can do today.  “Things have changed” arguments are either legitimate or they’re not.  Both sides want to be able to use that argument themselves but deny it to the opposition.

As is perhaps inevitable, the concept of “original intent” appears in this debate.  It is certainly true that the 14th Amendment was in many ways a rebuttal to Dred Scott, but, Justice Thomas’s argument to the contrary notwithstanding, it was not only that, and Supreme Courts have ruled accordingly on several occasions over the last century and a half.  One of the more interesting, not to be confused with intelligent, arguments against the SCOTUS decision comes from Texas Racist-in-Chief Governor Greg Abbott.  He calls the 6-3 decision “a missed opportunity,” “a powerful magnet for illegal immigration,” “an absurdity that was never contemplated by our Constitution nor agreed to by the American people.” 

He’s even partially correct: the idea that children born to people in the country illegally should be granted citizenship would indeed have been alien to the framers of the Constitution or the 14th Amendment.  That’s because the concept of someone being in the country illegally didn’t exist.  It wasn’t until the Chinese Exclusion Act of 1882 that there was anything approaching closed national borders.  That’s 14 years after the ratification of the 14th Amendment.

The other part of Abbott’s plaint, that unrestricted birthright citizenship encourages illegal immigration, is not without its merits.  “Anchor babies” do exist; a little over a quarter of a million babies are born each year to parents in the country illegally.  Curmie completely understands the impulse to end the current practice.  But the point is this: that’s irrelevant to the SCOTUS decision.  It is not the job of the Supreme Court to opt for what they consider to be the “best” option, but to consider only the constitutionality of a law or an action.  Thus, Curmie can be a supporter of abortion rights and still think Roe v. Wade was a bad decision.  There are plenty of “the ends justify the means” folks out there.  Most politicians on either side of the aisle fit that paradigm.  Curmie does not.

It may indeed be the case that the country would be better off if Trump’s Executive Order were allowed to stand.  What matters is that the Constitution won’t allow it.  Governor Abbott and his ideological kinfolk are free to attempt to amend the Constitution; the 21st Amendment repealed the 18th, after all.  Yes, that will take time and effort; just ask the proponents of the Equal Rights Amendment, which may or may not be the 28th Amendment. 

But the avenue is there, and it seems more reasonable than allowing a mentally incompetent jackass who happens to be President to ignore what the Constitution says and unilaterally decide the matter based on nothing but his own xenophobia.  Of course, being a narcissistic idiot, Dear Leader is now calling on Congress to pass a law eliminating birthright citizenship.  Uh, Donny Boy, it would still be unconstitutional if Congress did do so.  But wasting time and money on a frivolous and arguably racist crusade sure does play to the base, and it’s a lot easier than actually governing.

La la, how the life goes on.

A Few Thoughts on Garland v. Cargill

The recent SCOTUS decision, along partisan lines, in Garland v. Cargill was both predictable and legally correct.  The ruling is based on the language of the 1934 National Firearms Act, which, in outlawing private ownership of machine guns, defined such a gun as “any weapon which shoots, is designed to shoot, or can be readily restored to shoot, automatically more than one shot, without manual reloading, by a single function of the trigger.”

At issue was an initiative by the ATF to ban bump stocks in the aftermath of that asshole in Las Vegas killing 60 country music fans and wounding over 200 others in 2017 by employing the device.  Bump stocks don’t, technically, transform a semi-automatic weapon into a “machine gun” according to the specific definition of that law; they merely create fundamentally the same effect.  In other words, this case was a showdown between ontology and phenomenology or, less pretentiously, between literality and functionality.

It is not surprising that the trio of liberals on the Court argued for more restrictions on weaponry and the sextet of conservatives thought otherwise.  But it may be that those political perspectives weren’t really at the center of the justices’ respective votes.  Giving them the benefit of the doubt, we could reasonably argue that the majority simply looked at the definition of “machine gun” in the law, and the minority chose to rely on the way the term is used in common parlance.  (Both sides, of course, are slaves to semantics when it suits them, and to mind-reading when literality doesn’t achieve their desired goals.)

Bump stocks weren’t invented until the 2000s and therefore could not have been explicitly included in a law written nearly three generations earlier, but it’s reasonable to view the inclusion of bump stocks as a logical extension of that law’s intent.  Bump stocks do indeed create the effect of an automatic weapon, even though the way they achieve that end is not exactly what the 1934 law describes.  Justice Sotomayor’s dissent even invokes a familiar aphorism: “When I see a bird that walks like a duck, swims like a duck, and quacks like a duck, I call that bird a duck.”

Side note: it was almost exactly three years ago when Curmie wrote about a SCOTUS case in which the fact that a law specified a definition of a term thereby made the conventional meaning of a term irrelevant.  Part of that ruling was, “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.”  So, the majority is correct in legal terms… and that’s what matters.

Let me also say that headlines like the one used by the  Fox affiliate (!) in Spokane, “The gun technology used in the 2017 Las Vegas shooting was just okayed by the Supreme Court,” are technically accurate but clearly misleading, intended to titillate rather than inform.

SCOTUS didn’t say that bump stocks ought to be permissible; they determined, rather, that they were not banned by existing law, and therefore that ATF overstepped their authority.  Justice Alito makes this clear in his concurrence:

The horrible shooting spree in Las Vegas in 2017 did not change the statutory text or its meaning.  That event demonstrated that a semiautomatic rifle with a bump stock can have the same lethal effect as a machinegun, and it thus strengthened the case for amending §5845(b).  But an event that highlights the need to amend a law does not itself change the law’s meaning.

There is a simple remedy for the disparate treatment of bump stocks and machineguns.  Congress can amend the law—and perhaps would have done so already if ATF had stuck with its earlier interpretation.  Now that the situation is clear, Congress can act.

Curmie notes in particular two things about what isn’t said: first, most (not all) of the news coverage of the ruling omits the fact that the ATF that sought to ban bump stocks was part of the Trump administration.  Presumably, then, the Grand Wizard of the GOP approves of the ban, or at least did nothing to stop it under his regime.  The chances his minions would let a redefinition of “machine gun” make it to the floor of either house of Congress in this election year: zero.

More importantly, take a good look at what Alito says above, Gentle Reader.  He argues that ATF exceeded its authority by, in effect, attempting to enforce a law that doesn’t exist.  But he also suggests that Congress not only could, but “need to” amend the law to include bump stocks.  That’s about as close as a conservative jurist is ever going to come to endorsing anything in the same universe as gun control.

What’s really significant, though, is that nowhere in Justice Thomas’s rambling majority opinion (did he get his degree in the Department of Redundancy Department, or what?) or in Alito’s more succinct and cogent concurrence is there any indication that there would be anything constitutionally problematic about a law that did explicitly outlaw bump stocks. 

This relates to an argument that Curmie has made several times, most comprehensively and explicitly here, that we already have limitations on private ownership of certain kinds of weapons, including, for example, nuclear submarines, surface-to-air missiles… and automatic rifles. 

So we’re left with two points.  First, that not banning weapons systems that perform the same function as what were described as “machine guns” in 1934 makes no logical sense, and failure to do so can only be ascribed as capitulation to the gun lobby at the expense of the populace.  But we all know that, just as we all know that such legislation won’t happen until the GOP starts caring more about constituents than about their campaign contributors, or until the Dems have control of the White House, a clear majority in the House, and the ability to enforce cloture in the Senate.  Not in the foreseeable future, in other words.

Second, that adjusting an existing line that separates the legal from the illegal is a fundamentally different thing than creating a line that was hitherto non-existent.  In other words, discussions about also limiting or denying access to semi-automatic weapons are absolutely legitimate, and should not be derailed simply by a blinkered interpretation of what is and is not constitutional. 

What, other than adherence to a reading of the 2nd amendment that casually ignores the phrase “well-regulated militia,” is the argument in favor of allowing these weapons to be available to the likes of Adam Lanza, Nikolas Cruz, or Stephen Paddock?  Somehow I suspect I’ll never be satisfied with the answer to that question.

Some Independence Day Contemplations

A year ago on Independence Day, Curmie wrote this: “The standard line among liberals is that the system is stacked against anyone who isn’t white, male, rich, heterosexual, and Christian. The male and Christian parts of this aphorism certainly seem to have been upheld by SCOTUS of late.  We’ll see about the others.”  (Curmie was referring to the Dodds,  Carson, and Kennedy decisions.)

SCOTUS has now completed the clean sweep, as “white” in Students for Fair Admissions v. Harvard, “rich” in Biden v. Nebraska, and “heterosexual” (and Christian) in 303 Creative v. Elenis all emerged triumphant in SCOTUS decisions issued in the last few days.  Or, rather, their opposites were unquestionably the losers.  All of these decisions were depressingly predictable along partisan lines. 

Certainly the profoundly unethical machinations of the evil (yes, evil) Mitch McConnell can be blamed for a lot of things… but not this.  Yes, the Carson and Kennedy decisions were both abominations, but the others were at least understandable, and most were actually the right call.  Dodds overturned a pretty bizarre rationale in Roe v. Wade.  We can object to the mendacity of the Trump appointees in declaring that Roe was “the law of the land” during their candidacy and then jumping at the first opportunity to reverse it.  We can also wonder whether Roe was so bad a decision that a right granted to American women for decades could legitimately be removed.  But as a matter of Constitutional law per se, Dodds is likely the correct ruling.

Similarly, whereas some form of recognition of racial diversity as a positive force in society would be preferable, the fact is that the Constitution is pretty absolutist about favoring one race over another.  And President Biden’s student loan forgiveness plan was indeed an overreach, probably in policy terms and certainly in terms of executive authority.

That leaves the 303 Creative case, which Curmie intends to come back to in a future post after he’s has a chance to really study the arguments.  There are some definitions to be clarified… which means there is at least a case to be made in favor of the SCOTUS decision.

Ultimately, what is revealed in all this is what we already knew: that politics will intrude into every decision, that Confucius was right that no set of laws can possibly anticipate every eventuality, and that the Venn diagram for that which is just and that which is legal is not a circle.  More importantly in terms of understanding where we are as a nation, someone is going to feel shortchanged (and not without at least some reason) by any decision made by SCOTUS or anyone else in the position to render a judgment.

Those perceiving others to have privilege will behave antagonistically.  Those perceived by others to have privilege will behave defensively.  At some point, it almost doesn’t matter if the descriptor is accurate.  But the key word here is “almost.”  More significantly, all of us have some form of privilege that others don’t; all of us lack some form of privilege that others enjoy.  Maybe we ought to remember that.

Curmie remembers a workshop at a conference he attended many years ago. Participants were divided consecutively by some distinguishing characteristic—say, race.  Then the workshop leader would say a few words, and we’d all be part of the whole again… only to be divided by gender, or rank in the professoriate, or institutional affiliation (R-1s over here, private liberal arts colleges over there, non-flagship state universities in that corner, community colleges way in the back…).  What we found was that whenever we were in the privileged group, we just stood there, awkwardly; when we were in a marginalized group, we chatted freely, even with people we’d never seen before.  There’s a lesson there.

The country is being pulled apart by factionalism.  The left and the right accuse each other of authoritarian tactics.  They’re both right on that score, which is about the only thing either is right about consistently.  And neither major political party has exactly bestowed its leadership roles on people of great insight or integrity.  The country is more divided than at any time since the time of Curmie’s youth and early adulthood: the days of race riots, “women’s liberation,” the Vietnam War, and Watergate.  We live, in the words of that supposedly Chinese curse, in interesting times.

There is plenty of reason for despair.  But for all his outward cynicism, Curmie is something of an idealist.  His describes this blog on his Facebook page as “a political blog for cynics and other romantics.”  So it is that he was particularly struck by a phrase in a 4^th of July musing by the redoubtable Ken White of Popehat: “an America that was more of the sum of its wrongs.”  What a felicitous description!

The ”more perfect union” envisioned by the Founding Fathers is a journey, not a destination.  There will be detours along the way.  Roadblocks may force us to double back from time to time to find the road that will ultimately lead us in the direction of our goals.  Some remarkably stupid utterances will no doubt emanate from our left and our right; we must not allow ourselves to be distracted, to get caught up in minutia rather than continuing our quest.

Our nation is comprised of people.  That makes us fallible on a good day, self-destructive on a bad one.  Independence Day may seem little more than a day off from work, a chance to eat some burgers, drink some beer, and watch some fireworks.  But there is something ennobling about it nonetheless.  For a few moments every year, we’re together as denizens of the same flawed but miraculous assemblage of disparate races, religions, socio-economic classes, and political views.  We are reminded, briefly but materially, that we not defined by our politicians or our differences.  Today, we don’t cease to Republicans, Democrats, or Independents, or any of the other labels that divide us.  But we do, ephemerally at least, put those taxonomies to the side and become Americans above all else.

Curmie isn’t naïve enough to think we’re all going to hold hands and sing “Kumbaya” (or “The Star-Spangled Banner,” for that matter) together.  We’re going to fight and scrap and call each other names.  We’ll punch each other in the nose (metaphorically, I hope).  But at the end of the day, perhaps… just perhaps… we’ll celebrate what we have and who we are, without losing sight of what we wish we might be. 

‘Tis a consummation devoutly to be wished. 

Advocating for Gun Control Is Not an Assault on the Constitution

Most readers here know that Curmie reads Jack Marshall’s Ethics Alarms blog fairly regularly. The motivation has changed a little over the years: Curmie finds himself agreeing with Jack’s positions a lot less since the site has (often) devolved from an ethics orientation into a mouthpiece for Republican politics. But whereas some of his critiques of Democratic chicanery or incompetence are based on little more than partisan demagoguery, many are not, and Curmie would like to fancy himself not naïve to the faults of those with whom he shares (most of) a political weltanschauung. He’s no fan of Joe Biden, but given the alternative… well… 

Still, when the subject is politics (especially guns or abortion), Curmie tends to disengage, largely because he sees both Jack and the overwhelming majority of his readership as incorrigible (as they no doubt see him), not worth arguing with about certain issues. Sometimes, though, there’s the proverbial straw, and we got one of those moments a couple of days ago. 

To wit: a post with the headline “Incompetent Elected Official Of The Month: Sen. Chris Murphy (D-CT.).” And what egregious violation of good governance had Senator Murphy committed? He had the audacity to suggest that if the Supreme Court continues to deny the government (federal, state, or local) the right to insist on background checks or to control the availability of assault weapons, people aren’t going to like it, and they’re going to regard SCOTUS as even more illegitimate than they do now. 

To be fair, there’s a bit of hyperbole in Murphy’s commentary; curiously, Curmie doubts that he is the first politician ever to exaggerate for effect. But let’s be serious for a moment. Allegations with some apparent legitimacy have recently been leveled against Justices Thomas and Gorsuch (Curmie is unimpressed by what appears to be partisan puffery directed at Chief Justice Roberts). 

There have been calls for Thomas to resign (including from Jack Marshall, to be fair), but there really isn’t a means of policing SCOTUS. They recuse themselves when they feel like it, make overt political statements when they feel like it, push (or transgress) the boundaries of ethics when they feel like it, all with no structure in place to keep them honest. 

Justices serve until they die or just don’t want to continue, there’s no impeachment process, and, of course, they are appointed and confirmed on almost exclusively political grounds. If you believe there’s been a single confirmation hearing in the last 30 years that actually mattered, this is probably not the blog you should be reading, Gentle Reader. Curmie writes for grown-ups. 

Democratic candidates have won the popular vote for President in seven of the last eight elections. But because of pure chance, the arcane Electoral College, and the despicable maneuvering of Mitch McConnell, five of the eight current justices who took office in that period were nominated by Republicans. (Justice Thomas was confirmed prior to the period in question.) Donald Trump recently claimed agency in overturning Roe v. Wade. For once, he told the truth. You can be sure of two things: that there was absolutely a litmus test for prospective nominees on the issue, and that Gorsuch, Kavanaugh, and Barrett all lied to the Senate (and to the citizenry) about their attitude towards Roe. (N.B., Democratic nominees lie, too, but that’s outside the scope of this essay.) 

So it can certainly be argued that the reputation of SCOTUS has suffered more than a little in recent months. Acknowledging that fact doesn’t seem particularly outrageous. 

The only thing you hunt with this is people.

More to the point: Murphy does not “hate the 2nd amendment” (or if he does, there’s nothing in what he said to prove that). Rather, he believes it has been radically misinterpreted by recent SCOTI (that’s the plural of “SCOTUS,” right?). One might note that free access to AR-15s doesn’t actually appear in the Bill of Rights. (And yes, Curmie does know what the “AR” stands for, and even if he didn’t, if you can’t tell me what USB, NASCAR, and NASDAQ mean, you will kindly STFU about other people’s presumed ignorance.) 

See, the 2nd Amendment has this annoying little phrase, “well-regulated militia,” which the NRA and their minions would prefer didn’t exist, so they pretend it doesn’t. The idea that literally anyone can purchase any weapon they choose is inane. And that’s not just Curmie saying it. Former Chief Justice Warren Burger, a conservative appointed by President Nixon, did indeed say that the gun lobby’s interpretation of the Second Amendment “has been the subject of one of the greatest pieces of fraud, I repeat the word fraud, on the American public by special interest groups that I have ever seen in my lifetime.” 

Elsewhere, he wrote that “The very language of the Second Amendment refutes any argument that it was intended to guarantee every citizen an unfettered right to any kind of weapon he or she desires.” Later in the same article he argues that “surely the Second Amendment does not remotely guarantee every person the constitutional right to have a ‘Saturday Night Special’ or a machine gun without any regulation whatever. There is no support in the Constitution for the argument that federal and state governments are powerless to regulate the purchase of such firearms…” 

Curmie happens to agree with Chief Justice Burger, but at one level that’s not even the point. What is unassailable is that SCOTUS decisions are made by whoever happens to be on the bench at a given moment; they are intended to become precedent-setting, but not immutable, much less sacrosanct. If they were, we’d still be operating under Plessy v. Ferguson and (oh, yeah) Roe v. Wade. And, like it or not, the wisdom of recent SCOTUS rulings on gun control is, at the very least, contestable. 

Curiously enough, many most of the same people who bellow full-throatedly that we cannot question the advisability of adhering chapter and verse to the NRA’s dictates on gun control because it’s “settled law” seem not to have had similar qualms about railing against abortion rights. The stench of their hypocrisy has wafted its way into every crevice of American society. 

Curmie, as you probably know, Gentle Reader, thinks abortion access ought to be legal within some quite broad parameters. On the other hand, he’ll grant that Roe v. Wade was a bad decision. No, there really isn’t anything in the Constitution that guarantees what had been regarded as a right for all of Curmie’s adult life until the Dodds decision. And Curmie ain’t young. But Curmie has never seen an argument from the right that grants that SCOTUS might have been wrong about the Second Amendment but we ought to continue the status quo, anyway. 

Working to overturn an inappropriate interpretation of the Constitution is neither incompetent nor un-American. So let’s drop Constitutionality as an issue in the debate. It’s relevant in terms of what is, but not to what should be. Curmie, as most readers of this blog already know, is a civil libertarian on most (but clearly not all) issues. He’ll argue for freedom of expression not because there’s a First Amendment, but because the society benefits from encountering new or minority ideas… you know, like abolition, women’s suffrage, integration, stuff like that. Oh, and there’s a difference between dissent and sedition. Similarly, he’ll argue for privacy protection not because there’s a Fourth Amendment, but because private lives ought to be private. Sure, he’ll trot out the constitutional argument, too, but it’s not the center-piece of the critique. 

So, let’s assume for a moment that there’s no Second Amendment. What’s the argument in favor of granting a teenager unlimited access to a range of semi-automatic weapons? The upside is that Bubba can get his rocks off shooting up beer cans and feel “safe” from non-existent threats. The downside is a spate of mass killings, far more than any other first-world country must endure. Gun laws work, as has been shown repeatedly in the US and abroad. But a few dead schoolkids or shoppers or country music fans every week or so is a small price to pay for “freedom,” right? Curmie begs to differ. 

“Yeah, but hunters…” Sure, no problem. Any gun that is reasonably used by a hunter is not affected. That means most rifles and shotguns. Not most pistols, and certainly not automatic or even semi-automatic weapons; you don’t need one of them to shoot Bambi. High-end pistols, the kind used in competitions, are similarly exempted. Saturday Night Specials, not so much. Hell, even a proudly Southern rock band like Lynyrd Skynyrd had that figured out nearly a half-century ago. 

“But how are we to defend ourselves against a tyrannical government?” Sorry, that ship has sailed. If the US government wants to take you out, it will. This is why we need to make sure that those in power aren’t tyrant-wannabees. Alas, that description fits most of the biggest names in both parties. (Curmie grants that this would appear to be a flaw in his argument… but read the next paragraph.) 

There are, of course, a host of weapons you don’t have access to, Gentle Reader, unless you’re in some variation on the theme of the military. Curmie doubts that there are too many folks reading this piece who would be in position to buy a nuclear submarine or a tank or a B-1 bomber, but you couldn’t even if you could afford it. Surface-to-air missiles might be a little cheaper, but they’re off limits, too. One of the most common faux arguments from the right is that gun control proponents don’t even know an automatic weapon from a semi-automatic one: “The former are already illegal, you silly libtard.” 

Let me repeat that: there are already restrictions on owning certain kinds of weapons. We’re talking about moving the line, not creating one that didn’t exist. Gun advocates are free to argue that they see more drawbacks than benefits in what Curmie and an overwhelming majority of the American people would call “common-sense gun laws,” but these folks are very much in the minority. Six different gun control measures in a recent Fox News (!) poll received over 75% approval from respondents; over 60% favor banning assault weapons altogether. This is not to say that the majority is always right (actually, Curmie would disagree with a couple of those proposals), but those are astounding numbers for a democratic (small “d”) government to ignore. 

Any argument for a continuation of the status quo needs to be honest, logically consistent, and not solely reliant on a very questionable interpretation of the Second Amendment. Curmie would like to see such a point of view presented by someone… anyone. He fears he’s more likely to have a nice chat with a unicorn.

Independence Day Thoughts, Past and Present

Curmie hasn’t written here in almost three weeks.  Needless to say, it hasn’t been for lack of things to talk about.  SCOTUS alone would be good for at least two posts; Curmie may get to them, but he tries not to comment at any length on decisions he hasn’t read.  The Dodds ruling alone is over 200 pages, and the Carson and Kennedy decisions total another 120.  There are others, too…

There’s been a lot of other stuff, too, some of which I hope to get to, perhaps combining two or more stories into a single post.  But for now, perhaps it’s time to look at where we are in general terms.  The bad news is everywhere: the tanking stock market; soaring inflation; the Russian invasion of Ukraine; the fact that whoever the Presidential candidates in 2024 are, it’s extremely likely that Curmie will be voting for the less awful candidate instead of one he actually supports.  And then there are those SCOTUS decisions that are depressing in both their 1950s world view and their predictability.

But it’s the 4th of July, and that takes on special meaning this year.  A lot of Curmie’s Facebook friends are declaring that this isn’t Independence Day, it’s just Monday (with a day off from work).  One friend (a man, by the way) wrote “This year’s Fourth has a different feel to it, and it isn’t good.”  Curmie hears them.  There is, perhaps, less to be happy about, let alone proud of, today than many Independence Days past.  But, glancing back at some of what I’ve written on previous July 4s, there’s a trend. 

Two years ago, the piece was titled “’... but it can be.’ A 4th of July musing,” borrowing a line from the Aaron Sorkin series “The Newsroom.”  The context is that for all its chest-thumping, the US is not, in fact, the greatest nation in the world… but it can be.  Our reality doesn’t match our aspirations, but the solution isn’t to give up: it’s to do the work necessary to raise the nation closer to what we would like it to be.  It certainly isn’t to roll over and concede.  The otherwise depressing news from Ukraine should certainly have taught us this: to quote hockey great Wayne Gretzky, “you always miss the shots you don’t take.” Standing for something involves risk; Volodymyr Zelenskyy is an international hero for a reason.  Barry Goldwater meant something altogether different in declaring that “extremism in the defense of liberty is no vice,” but those words themselves ring true: it’s just that Senator Goldwater and Curmie see “liberty” a little differently.

Four years ago, Curmie posted “Curmie Returns with a Bit of the Boss,” citing Bruce Springsteen’s song “Independence Day,” which has nothing to do with July 4, of course, but which still resonates on this day.  Especially relevant are these couple of lines: “Because there's just different people coming down here now / And they see things in different ways / And soon everything we’ve known will just be swept away.”  Disagreements about politics, for example, ought not—in most situations, at least—end friendships.  That doesn’t mean we should all “just get along.”  It does mean that unless we find some common ground on even contentious issues like gun control and abortion, society is going to unravel.  Alas, there are ideologues and authoritarians on both sides of such issues, and even recognizing the other side’s point of view as anything other than outright evil seems problematic for many.

One other early July post from years past also seems relevant.  Twelve years and two days ago, Curmie wrote “The Lessons of Easter Week, 1916,” pointing out that the Rising of 1916 in Ireland failed to achieve anything that looked like independence from England.  And yet, it did, because of English over-reaction: providing emergency medical care to James Connolly so he wouldn’t die before they could shoot him, allowing a British officer who ordered the deaths of three men almost certainly guilty of literally nothing at all to plead insanity and retire to Canada on a full pension, dumping the bodies of the executed revolutionaries in a mass, unmarked, grave and covering them with quicklime. 

The Irish people in general thought the Republicans (in the Irish sense of that term) were annoying at best… until English arrogance was allowed to show itself in full bloom.  Sinn Féin, the leading ultra-nationalist party, increased its membership in parliament from 6 members to 73 in the first election after 1916.  The more moderate Irish Parliamentary Party showed a concomitant drop, from 68 votes to 7.  Oh, and the Irish Free State came into being less than six years after the Easter Rising.

What all this means is that perhaps Michel Foucault was right: that history happens not in events themselves, but in the interstices between events.  The Dodds decision in particular was an event.  It now remains to see what history ensues.  It just might be that over-reaching claims another victim.

The current Supreme Court has shown itself to be little interested in obeying either precedent, even after promising to do so, in the case of Dodds, or in the separation of church and state in the cases of Carson and Kennedy.  As noted above, Curmie hasn’t read those decisions, and will speculate on his response only to this extent: that he’ll be considerably less than surprised should he learn that these cases were decided on the basis of political ideology rather than actual constitutional issues.

The standard line among liberals is that the system is stacked against anyone who isn’t white, male, rich, heterosexual, and Christian.  The “male” and “Christian” parts of this aphorism certainly seem to have been upheld by SCOTUS of late.  We’ll see about the others. 

It’s important to realize here that perceptions are as important as reality in some regards.  No, we shouldn’t trust emotionality over reason, but certainly recent events have served to make many people, and not just the easily persuaded, distrust the system, and that’s not a good thing.  There’s no question that we’re not going to see the protection of individual rights (other than gun-toting) from this SCOTUS, and they’re likely to be around for a while.  Short of drastic measures (which Curmie does not support), we’re not going to have the citizenry prioritized over the interests of powerful entities for a good long time.  President Eisenhower warned about the “military/industrial complex”; replace the military with reactionary Christianity and that’s pretty much where we are now.

For all this, the conflict is not over.  Curmie used to identify his political stance as “from the radical middle.”  That’s beginning to be true, again.  The party of Donald Trump and Mitch McConnell is indeed a threat to American democracy.  But so are quotas, racial set-asides, and cancel culture.  Seriously, is there anything positive to say about Biden/Harris other than perhaps, perhaps, they’re a little less mentally unstable, a little less incompetent, a little less wrong on the issues, and little less dishonest than their predecessors?  So we should just pack it in, right?

In a word: no.

Curmie is a huge fan of the University of Kansas basketball team.  They’ve won two national championships in the last 15 years.  In one championship game, the Jayhawks trailed by nine points with less than two minutes to play.  In the other, they trailed by 16 early in the game and at the half by 15.  They didn’t give up, and they were the ones raising the trophy at game’s end. 

All is not lost, today.  Curmie won’t guarantee we’ll get there—to the founders’ “more perfect union,” to MLK’s “promised land,” to the greatness of our collective vision.  But striving for less, accepting less, cannot be countenanced.  We must heed the words of James Baldwin cited in the meme above: “I love America more than any other country in the world and, exactly for this reason, I insist on the right to criticize her perpetually.”  This is the opposite of the “love it or leave it” rhetoric of the warhawks of Curmie’s youth.  Rather, this is a call to arms to fight for what is right… and despite its manifold failings, this nation has much that is positive on which to build.

246 years ago, a collection of flawed but prescient men—virtually all of whom would be regarded as both racist and sexist by today’s standards—released a document, radical for its day, that changed the world.  It was, of course, a seditious if not treasonous act, and it took more than a little courage to embark on a course that would inevitably lead to conflict with the world’s greatest military force.  On that day, those 56 privileged white men pledged not only to each other but to a fledgling nation of their own creation, their lives, their fortunes, and their sacred honor.  The current reality may not be worth this sacrifice, but the aspiration is.  We forget or ignore that at our peril.

SCOTUS Won't Protect the Innocent

Barry Jones

The SCOTUS “ruling” that’s gotten all the press over the last few weeks isn’t really a ruling at all, at least yet.  Lost in the controversy surrounding what appears to be the imminent reversal of Roe v. Wade is the case of Shinn v. Ramirez, which may have the most horrific consequences of any decision in recent history.  We can disagree about RvW, but there are competing claims there, centered, as Curmie recently argued, on when in the progression from fertilized egg to childbirth a collection of cells becomes a human with rights equal to the mother’s.  And whereas Curmie has argued for some significant limitations on the availability of semi-automatic weapons (for example), at least the Bill of Rights does guarantee the right to bear arms.   

Curmie concentrates here on the case of Barry Jones (whose case was lumped in together with that of David Martinez Ramirez, accounting for the title of the case).  It’s not news that the Supreme Court is more interested in legal niceties than in actual justice (see, for example, Curmie’s commentary on Walmart v. Dukes some eleven years ago).  But usually this manifests in preventing a group of people from filing a class-action suit instead of individual suits, procedural stuff like that.  But SCOTUS sees no legal impediment to allowing the state of Arizona to execute Mr. Jones despite the fact that he is almost certainly innocent.  Yes, really.

The central issue here pertains to the 6th Amendment guarantee of “the Assistance of Counsel,” a phrase that has always been interpreted by the courts as effective counsel. It doesn’t count if your weird Uncle Howard sits by your side and offers advice.  It doesn’t even count if Curmie, who is perhaps only marginally less weird, but a good deal better educated, than Uncle Howard does so: Curmie’s knowledge of criminal law consists of a one-day stint as a juror and considerable experience watching TV courtroom dramas (many of which were set in England).  No, you need an actual lawyer who does his/her damned job.

Jones was convicted of the 1994 murder of his girlfriend’s 4-year-old daughter, Rachel Gray.  As Justice Sotomayor argues in her dissent,

The State argued that Rachel died as a result of an injury she sustained while in Jones’ care. Jones’ trial counsel failed to undertake even a cursory investigation and, as a result, did not uncover readily available medical evidence that could have shown that Rachel sustained her injuries when she was not in Jones’ care. Having heard none of this evidence, the jury convicted Jones and the trial judge sentenced him to death.

Jones’s appeal was similarly mishandled, so he was again denied his 6th Amendment right to effective legal counsel.  Indeed, quoting Sotomayor again, “Arizona state law sets minimum qualifications that attorneys must meet to be appointed in capital cases like Jones’, but the Arizona Supreme Court waived those requirements in Jones’ case, and the state court appointed postconviction counsel who lacked those qualifications.” Holy Star Chamber, Batman!

Some would argue, as Ian Millhiser does on Vox, that SCOTUS is ignoring its own precedents.  Still, it may be true that in purely legal terms the SCOTUS ruling in Shinn v. Ramirez not to allow a federal lower court to initiate an evidentiary hearing is the correct one.  Nevertheless, such a decision cannot be abided in terms of justice.  There is no judicial equivalent to the Hippocratic oath’s admonition to “first, do no harm.”  Were such a stricture in place, we wouldn’t have the usual suspects on the Supreme Court of the United States calmly wiping away any impediments to the execution of Barry Jones.

When the stakes are this high—not merely for Mr. Jones and his friends and family, but for the very significant collateral damage to the citizenry’s perception of justice in this country—the Supreme Court needs to exercise leadership, to pay heed to Ben Franklin’s famous line (possibly riffing off Voltaire and/or Sir William Blackstone) “That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved.”

This notion, which dates back centuries, has long been touted as one of the bedrock principles of American jurisprudence—Curmie remembers hearing about it in elementary school in the 1960s, and has taken it as an article of faith ever since.  Those who disagree with this idea tend to be authoritarian rulers like Otto von Bismarck or revolutionaries like Che Guevara—neither of them heroes to the average American. 

That said, one of the more chilling aspects of Curmie found while doing a little research for this essay was a poll conducted by the Cato Institute in 2016, which shows that only 60% of Americans think it’s worse to punish the innocent than to let the guilty go free… not in the 100:1 ratio invoked by Franklin, but in even numbers.  Yes, 40% of Americans, and an even more terrifying 52% of Donald Trump’s “early core supporters” responded to the question of which is worse, “having 20,000 people in prison who are actually innocent; or, having 20,000 people not in prison who are actually guilty” by selecting the latter.  Whereas Democrats were slightly more likely than Republicans to protect the innocent rather than punish the guilty, the real difference is between the authoritarian and the libertarian.  Still, only 75% even of Bernie Sanders’s supporters chose to keep the innocent out of prison even at the expense of failing to incarcerate the guilty.

So Curmie’s initial response that the American people would be outraged at the callousness of the SCOTUS ruling seems to have been misplaced.  This observation would seem to support the commentary of H.L. Mencken about nobody going broke underestimating the intelligence of the “great masses of the plain people.”

But the phrase that haunts Curmie the most is the smug assertion by the insufferable Justice Antonin Scalia, surely the most over-rated jurist in a very long time indeed, that “actual innocence” (his quotation marks) is not grounds for even re-opening a case. Curmie remembers writing somewhere (perhaps on the Facebook page?) that Dickens’s Mr. Bumble may or may not be correct that “the law is an ass,” but that Antonin Scalia certainly is. 

Scalia’s infamous line appears in his dissent in the case of Troy Davis.  SCOTUS ordered a federal court Georgia to consider whether new evidence would clear Davis of a murder charge.  For good or ill, the original verdict was upheld.  Curmie wrote about that case on the eve of Davis’s execution.

What’s different here, however, is that whereas Davis was quite likely innocent, Jones certainly was innocent: the fatal injuries inflicted on Rachel Gray could not, according to three independent experts, have occurred when Jones was even in proximity to the girl.  It’s reasonable that the burden of proof shifts after a verdict: a defendant is not guilty until proven otherwise beyond the proverbial “reasonable doubt.”  Once convicted, however, that person now must prove innocence: not merely that it can’t be proved he did it, but that he can prove he didn’t.  But to shut down the possibility of appeal when there’s evidence not of “probable innocence,” but of “actual innocence,” corrupts the system beyond recognition.

There’s one more thing.  Curmie suspects that he has certain advantages over Barry Jones: he’s almost certainly better educated, very likely more intelligent, and probably in a better financial situation.  Yet Curmie has hired two lawyers ever: one didn’t do something he should have been certain to do, and the other committed an act of colossal stupidity.  With luck, these errors, one of omission and one of commission, will cost Curmie only a few dollars.  At worst, it could be more than a few dollars, but they certainly won’t cost his life.  But if Curmie can hire not one but two lawyers who didn’t get the job done, he finds it difficult to blame Barry Jones for doing the same.

Of course, however much we might like to blame SCOTUS for the brouhaha, there’s at least an argument that they’re just enforcing pre-existing rules.  (We’ll casually avoid mentioning that decisions like Plessy v. Ferguson were once considered inviolable.)  The real blame here falls directly on the Arizona authorities who, presented with real, documentable evidence of both Jones’s “actual innocence” and the incompetence of his defense team, doubled down on their own laziness, corruption, and dereliction of responsibility.  

Curmie was just hoping, rather forlornly, that SCOTUS would protect the innocent instead of the obviously guilty.  No, huh?

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 4th 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 5th 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 1st 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.