Category Archives: Constitution

Church and State in Texas

A friend recently sent me a copy of a Court Order approving a settlement in a hotly contested case from a small town in Texas. The Plaintiffs had complained that the school corporation engaged in pervasive and unconstitutional religious activities over a period of years–prayers over the loudspeakers, constant religious references by the Principal, prayers at athletic contests and graduation ceremonies and more. Students who complained were disciplined.

The judge’s opinion–especially the unusual “Personal Note” that he added–are worth reading in their entirety; the Personal Note appears below. His Appendix–which is not reproduced, but is also accessible on line–is a first-rate history of church/state relations through American history. I particularly appreciated the opening section of the Opinion, “What this case was NOT about,” in which he made a point not sufficiently emphasized: any child can pray in school at any time. The issue is whether public school officials–arms of the government–can promote or require that prayer.

Americans United for Separation of Church and State issued a press release detailing the major elements of the settlement:

* School district personnel will not display crosses, religious images, religious quotations, Bibles or religious texts, or other religious icons or artifacts on the walls, hallways, and other areas at the school.

* The district will not invite speakers, including government officials or community leaders, whom it has reason to believe will proselytize or promote religion during their remarks.

* The Medina Valley High School student handbook will contain a section on students’ rights to religious freedom, including the importance of respect for and tolerance of students from all backgrounds and the specific procedures for registering a complaint with district personnel about violations.

* The district will provide annual training to all district personnel who interact with students or parents or who supervise those who interact with students or parents. The training will cover a variety of topics related to students’ rights and church-state separation.

The release clarifies the terms of the agreement, but it’s only when you read the brief “Personal Statement” the Judge appended that you really appreciate the nastiness of the controversy, and the tenor of the “debate” conducted by the “religious” folk involved.

“A PERSONAL STATEMENT

During the course of this litigation,many have played a part:

To the United States Marshal Service and local police who have provided heightened security: Thank you.

To those Christians who have venomously and vomitously cursed the Court family and threatened bodily harm and assassination:In His name,I forgive you.

To those who have prayed for my death: Your prayers will some day be answered,as inevitability trumps probability.

To those in the executive and legislative branches of government who have demagogued this case for their own political goals:You should be ashamed of yourselves.

To the lawyers who have advocated professionally and respectfully for their clients’ respective positions:Bless you.”

Boobs and “Boobies”

Yesterday, I received a news release from the Indiana ACLU announcing the organization’s representation of a middle-school student. As the release recounted the facts of the case,

The minor child, “L.G.,” is a student at Roosevelt Middle School, which is part of the Twin Lakes School Corporation in Monticello, Ind. In early January, school officials instructed the student to turn inside-out a silicone bracelet that contains the message “I© (heart) BOOBIES” as well as the ribbon symbol for breast cancer awareness, and at that time informed the student he could be expelled if he continued to wear the bracelet to school.

The student wore the “I © (heart) BOOBIES” bracelet to assist with breaking down the barriers that make it difficult for young people to talk about breast cancer. The bracelets help support the work of the Carol M. Baldwin Breast Cancer Research Fund. Carol Baldwin is the mother of the Baldwin brothers, generally known as Hollywood actors and activists. The bracelets are popular among students at Roosevelt Middle School, and have not disrupted the educational environment.

“Decades ago the Supreme Court stressed that students do not shed their First Amendment rights when they enter school buildings,” said Ken Falk, legal director of the ACLU of Indiana, who is representing L.G.

“The bracelet did not disrupt the educational environment, and the speech here, designed to assist in the fight against breast cancer, is not profane, indecent, lewd, vulgar, or offensive to school purposes, and is therefore protected speech under the First Amendment,” added Falk.

I have two reactions to the school’s position–both negative.

First, why do public school officials constantly fixate on aspects of student behavior that are either irrelevant to their education or, as here, offer educational possibilities? Why not use students’ interest in breast cancer as a “hook” for science education and civic engagement? Even if teenage boys are “tittering”–forgive the pun–about “boobies” (there is no indication of such reaction but I had sons and I’m certainly willing to entertain the possibility), the focus on cancer clearly offers multiple opportunities for positive educational experiences.

And second, why don’t public school officials respect the constitutional rights of students? The law in this area is, as Ken Falk notes, pretty clear. How do we expect to raise a generation that understands and respects the constitution when those charged with their education repeatedly model unconstitutional behaviors? Authoritarian schools do not produce democratically-skilled students.

Knowledge of the word “boobies” is not nearly as damaging as being educated by people who think it’s important to pick a fight over its use.

Comments

Two Wrongs, Eroding Rights

January 21st was the 2-year anniversary of the Supreme Court’s decision in Citizens United. 

The anniversary was marked with a number of protests, and an even larger number of news articles and blog posts documenting the dramatic growth of political “Super Pacs” and other unaccountable third-party political actors in the wake of that decision.  We have seen an almost unimaginable amount of money being spent to influence–okay, buy–elections.

As a guest blogger for the American Constitution Society recently wrote,  “people are expressing outrage about the corrosive effect of big money in politics, particularly in the wake of the Supreme Court’s ruling in Citizens United v. FEC.

This outrage is well founded –  in a report Public Citizen published one year after the Court’s disastrous decision – we found that spending by outside groups jumped to nearly $300 million in the 2010 election cycle, from just $68.9 million in 2006.  The donors for nearly half of this independent money spent remain undisclosed. And, that’s just a taste of what’s to come.  The influx of independent expenditures in allowed by Citizens United will bump up election campaign spending to record levels in 2012; by some accounts to as much as $8 billion, dwarfing previous records.

We want to get big money out of politics, but do that, you have to engage the very system that is weakened and undermined by that money. The deck seems stacked.  How does an ordinary person find a way to make that change happen?”

The entire post is worth reading, and the author concludes–as have many others–that we need a constitutional amendment that would overturn the decision and confirm that corporations are not people.

I agree that such an amendment is warranted, if incredibly difficult to pass. But as a retired Judge told me several months ago when we were discussing the case, the real travesty was the earlier decision in Buckley v. Valeo, in which the Court equated money with speech. That was the decision that made Citizens United possible.

We all know that wealthier people have more clout in every society; they always have and probably always will. Wealth buys privileges–it allows people to get better educations, join organizations that are influential, have more leisure, hire lobbyists, and access a wide variety of other social “megaphones” that allow them to influence others. That’s just reality–an inescapable consequence of free speech in a market economy, and in my view, an acceptable if regrettable trade-off.

But Buckley and Citizens United  vastly increase the power of the rich at the expense of everyone else. Rather than helping to level the playing field by upholding laws that would have moderated political advantage, those decisions dramatically increased the disparity.

If money is speech, and corporations are people, the 1% will always own the political process.

Comments

The Heckler’s Veto?

The Indiana Statehouse has been the focus of a lot of demonstrations over the years, and probably just as many efforts to abort–or at least minimize– those demonstrations. Remember when the KKK came to town? The argument was “We can’t let them use the Statehouse steps–people will riot and it will endanger public safety!” The same argument, of course, was made when Martin Luther King spoke at public venues in the South–public officials argued that he couldn’t be allowed to address the crowds because the local “bubbas” would riot and endanger public safety.

The courts have had a pretty standard response to such arguments: the First Amendment protects all expression, even “the idea we hate.” Neither the government nor the “hecklers” who disagree with the message get to veto other people’s right to speak.

The term “heckler’s veto” is shorthand for the proposition that people who don’t like an idea don’t get to “veto” its expression by threatening the public safety. If there is a genuine concern about safety, courts have uniformly held that the proper response is to address that concern–provide more police, remove weapons, fix rickety stairs or do whatever else it takes to minimize the perceived danger–without denying the speaker(s) First Amendment rights.

Which brings us to the current effort to minimize the message of people opposed to pending Right to Work legislation. If having lots of folks in “the people’s house” is truly dangerous, make whatever alterations/accommodations are necessary to ameliorate that danger. But it’s hard to accept the proposition that this sudden concern about “safety” is isn’t simply a transparently political effort to shut down political opposition, an effort at a somewhat more sophisticated version of the “heckler’s veto.”

Don’t believe that? Let’s engage in a “thought experiment” suggested by my son the other day.

Let’s say a member of the General Assembly offered a bill to provide public funding for late-term abortions, and his colleagues seemed likely to vote for that bill. How many of the legislators who are piously expressing concern for the “public safety” would be working to limit the number of people Eric Miller and his anti-choice cohorts could bring to the Statehouse?

Comments

Wrong is Wrong

Since the election of Barack Obama, the GOP–aka “the party of no”–has shown impressive discipline, putting party orthodoxy ahead of both the common good and, frequently, sanity. The Democrats, on the other hand, have happily confirmed Will Rogers’ great line: “I’m not a member of any organized political party; I’m a Democrat.” The left wing of the party has pretty constantly criticized the President for not doing more, not doing it more quickly, and not doing what they wanted.

I’ve considered much of this criticism unfair–often it has been the result of not understanding the constraints imposed by Separation of Powers, or the magnitude of the economic threat he inherited. Other complaints have had more merit–contrary to Republican rhetoric, for example, Obama has often seemed too willing to compromise, too reluctant to play hard-ball. But by far the most serious criticism has been his acceptance of Bush-era infringements on civil liberties.

This is a man who taught Constitutional law, a man who stood up for the rule of law as a Senator and who said all the right things as a candidate. It was a relief, after 8 years of a profoundly lawless administration, to cast a vote for someone who could be expected to respect Constitutional limits. That expectation has proved illusory, and Obama’s embrace of Bush-era surveillance measures has been painfully disappointing.

The recent announcement that the President would not veto the current Defense bill , however, is worse. While much of the bill is uncontroversial,  its counterterrorism section states that the entire world, including American soil, is a battlefield in the war on terror, and that the U.S. military thus has the authority to arrest and indefinitely detain anyone, even citizens, suspected of aiding terrorists.

I can’t think of anything more profoundly unAmerican.

It’s bad enough that large numbers of Congressmen and Senators support this assault on the Constitution and the rule of law. For Obama–who clearly knows better–to sign it is simply inexcusable.  Laura Murphy, the longtime head of the ACLU’s Washington office, said it best:

“If President Obama signs this bill, it will damage both his legacy and American’s reputation for upholding the rule of law. The last time Congress passed indefinite detention legislation was during the McCarthy era and President Truman had the courage to veto that bill. We hope that the president will consider the long view of history before codifying indefinite detention without charge or trial.”

In ordinary times, when we had two responsible political parties, the loyal opposition would provide a corrective to Executive Branch over-reaching. The saddest thing about the farce that is our current political environment is that no such counterbalance exists; indeed, the major movers of this appalling provision include Lindsay Graham and the ever-angrier John McCain. The same GOP that contests the power of the White House to reform health care evidently has no problem handing over the power to arrest and indefinitely detain American citizens.

We can only hope the Supreme Court remains sufficiently “activist” to invalidate this incredibly unAmerican measure.

Comments