Something We Can All Get Behind

Finally, a bill that may actually make it through the House and Senate but not off the President's desk. I think a law that repeals the Military Commissions Act is something we can all support.

Goons and Gifties...

We all know that Judge Posner, currently sitting on the 7th Circuit, isn't a fan of several of the libertarian concepts protected by the Bill of Rights. While the Fourth Amendment is typically the object of his scorn, over the last several years it appears his focus has changed to diminishing the speech rights of students while they are in school.

The first indication that the Seventh Circuit was interested in obliterating free speech rights in schools came from the Court's decision to apply Hazelwood School Dist. v. Kuhlmeir to undergraduate students attending Governor's State University in Hosty v. Carter. This case is particularly deleterious to First Amendment freedoms because Hazelwood has never been applied to college students. This creates a new lens in the jurisprudence of student speech and devolves basic notions of free speech established by the Supreme Court in Tinker v. Des Moines School District.

More recently, the Seventh Circuit has dealt another blow to the institution of free speech in public schools. In Brandt v. Board of Education of Chicago, the Court considers whether t-shirts worn in protest can constitute speech protected by the First Amendment. More specifically, a group of gifted students, the gifties, protested the handling of an election to choose an 8th grade class t-shirt for the academic year. The students wore the shirt designed by Brandt in protest of what the group alleged constituted a rigged election. The primary question dealt with on appeal is whether the student's rights were violated, but more subtly whether they had the right to protest in the first place. On page 9 of the opinion, the Court directly questions this issue, stating:

We have our doubts whether the constitutional privilege to engage in protest demonstrations in the name of free speech extends to eighth graders.

In reality, the Court doesn't just question the rights of students to protest, but specifically proscribes such conduct when it relates to a school's administrative policy. Posner likens the protest to a protest over the choice of ketchup in the cafeteria, and ultimately concludes that the students do not have the right to protest in this manner. The implication remains that the substance of the protest would not garner First Amendment protection even though the Court does explicitly indicate that the students were really protesting the school's refusal to provide election results and/or an explanation regarding the method of counting the votes.

Absent this debasement of existing First Amendment jurisprudence, there are at least three other problems that come to mind when reading this case. First, it creates a new standard for what may be protested by students in schools and how it may be protested. Second, it supplants the Tinker decision with the vastly abused Hazelwood decision. Finally, it abstracts concepts of discretion that would result in egregious deprivations of civil liberties if applied in other contexts.

First, in discussing why no First Amendment violation occurred in this case, Posner articulates that there were other methods the students could have employed to express their discontent with the Principal's actions. While petitioning the school board was an option, going that direction would not necessarily have resulted in the students' desired result. Moreover, in the event that the alternative options of protest failed, the decision forbids this kind of student initiative to speak out against questionable administrative decisions or practices by determining that this method of protest does not constitute speech protected by the First Amendment. The worst aspect of the decision is how the Court disregards the factual parallels to Tinker. There, the students wore arm bands to protest the Vietnam War and the Supreme Court upheld the act of protest as political speech. Protesting an election held within the school may not be as grand as protesting a war, but the concept remains, and to intone that one act of protest is less than another when both deal with "political" issues takes away from the liberty interests buttressed by the First Amendment and vitiates the freedoms it stands for.

Second, the decision makes little, if any, substantive mention of the Tinker decision and relies on the concept from Hazelwood that school administrators need not tolerate expression from students that does not comport with their educational mission. This change of focus is clearly erroneous in the face of the established law surrounding free speech issues in school. Tinker stands for the general concept that "students do not leave their First Amendment rights at the school house gate." Later cases, namely Frasier and Hazelwood are modifications to this rule permitting schools to regulate speech that is obscene (Frasier) or school sponsored (Hazelwood). In this case, clearly the shirts were not offensive, nor were they school sponsored. This case falls squarely within the ambit of Tinker's control. As such, the Court's decision attempts to rely on the possibility of a disturbance to the school, the only valid reason to limit student speech per Tinker, when no disruption occurred. Moreover, the actions of the school board's emergency response team indicated that there wasn't even a threat of disruption from the "protest." Instead, the Court hangs its hat on the concept that the Principal was acting without the benefit of knowing what would happen, and should be given the discretion to make decisions regarding student speech to protect the order of the school.

This third point, which the Court relies on to crow-bar a disturbance into facts presenting only the antithesis, raises a far more damaging concept. Giving an administrator, in this case a school leader, the discretion to act in order to keep peace would fundamentally alter the concept of libertarianism enshrined in the Constitution. The idea that any leader could act preemptively to subvert a danger is not only representative of our own political climate, but demonstrates why the liberty to act is a paramount maxim of American democracy. Imagine if the President were given this kind of discretion? Every act violative of the Constitution could be easily shrugged off because the President feared danger to the Union, and no harm results from the President making a mistake that infringes rights of the people when he does it to preserve order or peace. The absurdity of the idea is enough to make one's stomach churn. In this kind of situation, where we are dealing with the Principal of a school charged with keeping order and maintaining a pedagogical environment, this kind of discretion can be equally as damaging. This is not to say that the a Principal should act to prevent serious disruptions like those of April 20, 1999, but at the same time, it should not go so far as to pervert or retard the rights retained by students when they pass onto the school house lawn or through the school house gate. If education is a pillar of Democracy, then leaders of schools and school environments should subscribe to the same standards required of leaders in a democratic society. Otherwise, we teach students that society expects docile, apathetic, and conformist behavior. The reality is students should be taught to disrupt, to think independently, and to push for change. Otherwise we will be left with the stagnant state were change is a virtual impossibility and the Constitution is little more than a husk of idealism propped up as a model of society after it has long been rendered a vestigial concept of American government.

Simply put, the Seventh Circuit has missed the mark and in so doing restricted one of the aspects of educational socialization that creates free thinking Americans. No matter how petulant the facts, this decision only aids in socializing out the concepts of liberty and fair play that undergird the Bill of Rights.

Consequences of REAL ID

Let's take a lesson from the Brits on this one and realize that losing your passport could be the ultimate consequence of not conforming to the Real ID Act. Wake up Congress, this is a bad idea!

Absurdity, Squared...

Here is an interestingly shocking concept, a high school suspending three students for using the word vagina. I guess it would be more egregious if they weren't putting on a performance of the Vagina Monologues, at least in that case they can argue the vulgarity is for the sake of art. What really makes this transcend several levels of absurdity is that the school could easily have prevented them from putting on the show in the first place. Then they wouldn't risk permanently harming the students' records and preventing them from getting into college or graduate school. Call it just another symptom of our dumbed down society.

Quick Update...

I apologize for posts being few and far between but March has proven busy than expected. I am finally getting some time to myself lately, and will try to spend some time blogging here and there. Some personal updates before the usual politico-centric points of substance: I am finally working somewhat diligently on a novel with promise (I will post short sections here as they are finished), I have a working idea for a new academic article more as the research and ideas develop, I am still looking for a better job if anyone has an leads let me know. On to the substance.

It is nice to know that lying is a prerequisite for being the Attorney General.

Finally, a check, now maybe we can get some balance around here!

For all the Obama lovers out there, 10 things you didn't know about the Democratic Presidential hopeful.

I am still working on posts for a recent D.C. Circuit Court decision on the impact of the Military Commissions Act and habeas corpus. There is also an analysis of the NSA v. ACLU arguments at the 6th Circuit on the way as well. I know, promises promises.

The FBI and the Law...

If you haven't heard by now, the FBI has been using the Patriot act to bend, break, and ignore the law. Essentially, the FBI is using National Security Letters to obtain sensitive personal and private information on individuals subject to their investigations. When this impacts an American citizen, the FBI side-steps the warrant requirement.

Shocking though it may be, the real story is that this all occurs with the President's rubber stamp. What is most disturbing in this equation is the President's refusal to disclose information collected by the FBI because of administrative policy construing the existence of unitary power on the part of the executive. Mr. President, you are sorely mistaken. The Constitution provides the President with very limited power to wage war, subject to the restrictions set in place by Congress. Those of us who believe in the operation of the American Constitutional tradition request you cease disregarding your oath to uphold the Constitution and participate in this representative government instead of trying to take authoritarian control of what belongs to the people.

Couple of Good/Bad Ideas?

Some Democrats in the House have proposed a law that would overturn the Habeas Corpus suspensions in the Military Commissions Act. This after the D.C. Circuit decision, it seems like the Democrats are moving quickly to prevent a disastrous vote of confidence by the Supreme Court.

The D.C. Circuit's other recent move to invalidate the D.C. weapons ban is a win for libertarians, Dick Cheney, and violent criminals alike, though not that any of them are related in any way shape or form.

Someone finally figured out what terrible abuses have been perpetrated on the American People.

So this is what happens when speech is labeled as a danger to national security.