Constitutional Rights At The Schoolhouse Door

As regular readers of this blog and my former students know, I  approach my course on “Law and Public Affairs” through a constitutional lens. There are some obvious reasons for that focus: many of my students will work for government agencies, and will be  legally obliged to adhere to what I have sometimes called “the Constitutional Ethic.” Due to the apparent lack of civic education in the nation’s high schools, a troubling number of  graduate students come to class with very hazy understandings of the country’s legal foundations.

Freedom of speech seems particularly susceptible to misunderstanding.

The first problem is that a significant number of Americans don’t “get” that  the Bill of Rights only restrains government. Walmart or the Arts and Entertainment Channel or (as one angry caller insisted when I was at the ACLU) White Castle cannot be sued for denying you your First Amendment Right to express yourself.

The most difficult concept for my students, however, has been the principle of content neutrality. Government can–within reasonable limits– regulate the time, place and manner of citizens’ communication, but it cannot favor some messages over others. (I used to illustrate that rule by explaining that city ordinances could prohibit sound trucks from operating in residential neighborhoods between the hours of 10 pm and 7 am, but could not allow trucks advocating for candidate Smith while banning those for candidate Jones. I had to discontinue that example when I realized that none of today’s students had the slightest idea what a sound truck was…)

One example I did continue to use was public school efforts to control T-shirts with messages on them. Private schools can do what they wish–they aren’t government–but public schools cannot constitutionally favor some messages over others. This is evidently a lesson that many Indiana schools have yet to learn. A brief article from the Indianapolis Star reports that the ACLU is suing a school in Manchester, Indiana, after a student was forced by administrators to go home for wearing a T-shirt with the text “I hope I don’t get killed for being Black today.”

According to the Complaint, students at the school are allowed to wear T-shirts with Confederate flags and “Blue Lives Matter” slogans. It describes the plaintiff, who is identified only by his initials, as one of the few Black students at the school.

“Schools cannot selectively choose which social issues students can support through messages on their clothing,” Ken Falk, the ACLU of Indiana’s legal director, said in a prepared statement on Monday. “Students do not lose their constitutional rights at the schoolhouse doors. The refusal of the school to allow D.E. to wear his t-shirt is a violation of his right to free speech.”

The school would be within its rights to ban all “message” T-shirts (although I can hear the grumbling now). Favoring certain messages over others, however, is a violation of the principle of content-neutrality –a core precept of the Free Speech Clause that prohibits government from favoring some messages over others.

The courts give school administrators a good deal more leeway than other government actors, on the theory that providing an educational environment requires a larger measure of control than would be appropriate for adults. But there are limits; as Ken Falk noted, and the Supreme Court affirmed in Tinker v. DeMoines, students do not leave their constitutional rights at the schoolhouse door.

Far too many school administrators are more focused on exerting control than on modeling or transmitting basic constitutional values. Too many public schools are operated as totalitarian regimes–environments that stress compliance and group-think, rather than teaching critical thinking, acquainting young people with the values of a democratic society, and encouraging civic debate and engagement.

When school officials themselves routinely break the rules, is it any wonder so many young people graduate still unaware of them?

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Vindictive Exits

Many thanks to all of you who posted kind comments on yesterday’s post. I really appreciated them!

And now, back to our “originally scheduled programming”!

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Ever since the election, the media has been filled with stories about the ungraceful and vindictive exit of Trump Administration appointees. Confirming that administration’s utter disinterest in the common good, officials have been taking steps to make it as difficult as possible for the incoming Biden administration to function properly.

Of course, Republican moral nastiness isn’t limited to outgoing federal officials; here in Indiana, departing Attorney General/lecherous groper Curtis Hill is cementing his “Christian conservative” credentials by asking the U.S. Supreme Court to allow Indiana to strip parental rights from same-sex couples.

As Slate has reported,

On Monday, Indiana Attorney General Curtis Hill asked the Supreme Court to strip same-sex couples of their equal parenting rights. He did so at the request of the court, which is considering taking up his case. Hill implored the new conservative majority to rule that states may deny married same-sex couples the right to be recognized as parents of their own children. The case gives SCOTUS an opportunity to start chipping away at Obergefell v. Hodges by allowing states to withhold marital privileges from same-sex spouses. If the majority wants to begin eroding Obergefell, they will probably start here.

As the article notes, the case– Box v. Henderson–poses a question the Supreme Court has already answered twice. The plaintiffs in the lawsuit are eight married lesbian couples in Indiana who used a sperm donor to conceive. In Indiana, when a married opposite-sex couple conceives using a sperm donor, the state recognizes the birth mother’s husband as the child’s parent. When a lesbian couple does the same thing, however, Indiana refuses to list the birth mother’s wife as the child’s parent.

In both instances, the second parent has no biological connection to the child; Indiana’s decision to extend parental rights to the nonbiological husbands of birth mothers, but not the wives of birth mothers, is sheer discrimination.

Other states have read the Court’s decision in Obergefell v. Hodges to require such recognition. Obergefell held that the Constitution requires extending marriage to same-sex couples  “on the same terms and conditions as opposite-sex couples.”

When the Arkansas Supreme Court kept a birth mother’s wife off their child’s birth certificate, SCOTUS shot it down without even bothering to hear oral arguments. In 2017’s Pavan v. Smith, the court unequivocally ruled that states must issue birth certificates on equal terms to same-sex and opposite-sex couples. It announced a rule: If a state lists a birth mother’s husband as a parent despite his lack of biological connection, it must list a birth mother’s wife as a parent, too.

When Indiana’s case went to the 7th Circuit, a unanimous panel confirmed that precedent, and held that the state must treat same-sex couples the same way it does opposite-sex couples–but there was an unexplained delay in issuing that decision. According to the Slate article, the usual time lag between argument and decision is around three months; in this case it was 32 months. If the panel had issued its decision within a typical time frame, Indiana would in all likelihood given up, since Justice Kennedy–with an admirable record on same-sex issues– hadn’t retired, and Ruth Bader Ginsburg was alive.

But the Court has been changed, and not for the better. Kavanaugh has not previously shown support for LGBTQ rights, and Ginsburg has been replaced by Amy Coney Barrett, a frightening religious zealot. There are rumors that the new court “has its knives out for Obergefell.”

Which brings us to Curtis Hill, who is so slimy and self-aggrandizing that even Indiana’s retrograde GOP refused to re-nominate him. Hill has tried to distinguish Box v. Henderson from the applicable precedents by misrepresenting state law and claiming that the case is about a state’s right to acknowledge “biological distinctions between males and females.”

According to Hill, Indiana law only presumes that a birth mother’s husband is the father of her child. A birth mother’s wife, by contrast, “is never the biological father,” so she does not deserve the presumption of parentage.

If the Supreme Court sides with Indiana, and our departing creepy Attorney General gets the satisfaction of one last “owning the libs” moment, states will be able to resume discriminating against same-sex parents and, in effect, marking same-sex marriages as second-class.

I don’t know what makes these people into the petty and vindictive creatures that they so clearly are. I probably will never understand what sort of satisfaction they get by making life difficult and unfair for people they don’t even know.

I do know that we are well rid of them.

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Nostalgia And Reflection…

It seems appropriate to be reflective on this very challenging Thanksgiving. Especially, perhaps, at my stage in the life-cycle.

As we approach the end of a truly horrible year for everyone, I am also approaching the end of what has been a genuinely rewarding and satisfying career. Not my only career–I’ve had several (my mother used to say I didn’t have a resume, I had an itinerary…) After twenty years of “professoring,” I will retire from the faculty of the O’Neill School of Public and Environmental Affairs at Indiana University Purdue University Indianapolis at the end of the current semester, which is next month.

There are all sorts of emotions that surface at times like this. When I joined the faculty at what was then just SPEA–the School of Public and Environmental Affairs–I was conflicted about my separation from the Indiana affiliate of the ACLU, which I had directed for the preceding six years. (You can know that it is time for a change, and still be emotionally connected to a position. It’s like realizing that your baby has grown up and needs to be independent.)

Teaching at the university–my “portfolio” was law and public policy–has taught me so much. Far more, I’m sure, than I was able to impart to my students. Those students, by and large (there were definitely exceptions) gave me reason to hope for a kinder, better country and world–as I have said in many of the posts to this blog, I would turn the world over to the younger generation in a heartbeat! They didn’t always come into my classes with sound understandings of America’s history or legal traditions (okay, that’s being kind), but they came with good values and open hearts, and a desire to make the world better.

One of the things I will always be grateful for was the freedom the school gave me to design my classes and create new ones. Aside from my “Law and Public Affairs” classes, I created and taught Media and Public Affairs–originally, as a team teaching effort with Jim Brown, the then-Dean of the Journalism School, and later with others, including John Mutz, former Lieutenant Governor of Indiana. (I used to say it was a new preparation every year, because it was a different media every year…)

There were several other courses that I made up. One of my favorites was “Individual Rights and the Common Good,” basically a philosophy of government course.

I’ve just begun going through the detritus of the past twenty years, and I found my notes for that class. I was struck by the fact that the issues it focused upon were the same ones that consume discussions on this blog: what is government for? If–as Aristotle said–the good society is one that facilitates human flourishing–what should such a society look like? What do we mean by “human flourishing”? How should such a society be governed? What is the common good?

And of course, there is the constant question of balance–what concessions must  individual rights make to the maintenance of the common good? (Could there be a better example of that tension than the one we see in the current, ugly politicization of mask wearing?)

As I leafed through my teaching binder for Individual Rights and the Common Good, I scanned the readings I’d assigned–beginning with Aristotle, proceeding through De Tocqueville and Rawls, Feinberg and MacIntyre and ending with several Supreme Court cases that put legal flesh on the philosophical “bones” of theory.

As I scanned the readings, I was struck once again by De Tocqueville’s observation that “Individualism is likewise dangerous to society because when a large segment of the population is isolated and indifferent to the welfare of those around them, they become unwilling and then unable to band together to prevent tyranny.” In my classes, we discussed this observation, the important differences between individualism and selfishness, and the meaning of De Tocqueville’s next sentences: “Equality puts men side by side without a common link to hold them firm. Despotism raises barriers to keep them apart.”

I will really miss hearing what my students think about America’s prospects in the wake of our recent, close encounter with despotism. For that matter, I will miss my students. A lot.

But when it’s time, it’s time.

Happy Thanksgiving to all of you.

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Our Non- Industrial Revolution

Not long after the 2016 election, The Atlantic published an article investigating the cultural effects of higher education, or more accurately, how the financial benefits attributable to a college education were contributing to the growing urban/rural cultural divide.

The article began by describing two individuals from Indiana–a small-town resident with a high school education (80% of rural Americans lack a college degree) and an Indianapolis resident with a degree.

The article used the very different lives and prospects of those individuals to illustrate what it termed the  “diverging fates of two parts of America in the past two decades.”

Half a century ago, economic opportunity and upward mobility were available to many white Americans, regardless of where they lived and what kind of education they had. They could graduate from high school and find a job at a local factory and make a good wage, or graduate from college and sit behind a desk and make a slightly better wage. About 90 percent of kids born in the 1940s earned more than their parents did, according to work by Stanford economist Raj Chetty. But beginning in the 1980s, the returns on a college education started growing, and more of the benefits of economic growth started accruing to only those with an education, as those without an education saw their opportunities shrink.

The gulf between those with a degree and those without has led to a politically consequential divergence between Americans who live in cities and those who populate the country’s struggling rural regions.

For a century leading up to 1980, poorer regions were catching up to richer regions of the country in terms of wages, as an oversupply of workers in richer regions drove wages down, while an undersupply in poorer regions drove wages up. But this “convergence,” as economists call it, petered out with the rise of computers.

Ever since the 1980s, computers have made some people more productive and others economically obsolete. The data shows that healthy regions with educated workers began to do better and better. ( Remember Richard Florida’s The Creative Class?) This divergence  had geographic implications: people with college degrees are more likely to move to metropolitan regions, attracted not just by better job opportunities, but by the presence of other people like them.

Almost half of college graduates move out of their birth states by age 30, according to Enrico Moretti, an economist at Berkeley. Only 27 percent of high school graduates do. As booming cities draw in new college-educated workers, employers seeking these workers follow, and cities continue to gain strength like magnets. This improves the prospects of everyone in the region, including those without college degrees. The working-class strongholds that once prospered without college-educated workers, on the other hand, are doing worse and worse, as computers and robots replace the workers whose jobs haven’t been sent overseas, and, as a result, an oversupply of labor brings down wages for everyone still there.

One of the striking consequences of increasing educational and economic separation is that the winners are becoming more and more different from the losers. One scholar who studies this phenomenon calls it the “Great Divergence.” “

The consequences for small towns and rural regions are dramatic–and dire. Those consequences include high unemployment rates,  skyrocketing numbers of poor mental health days, the Opiod epidemic, increasing numbers of suicides, and shorter life expectancies.

The Industrial revolution–also disruptive–introduced manufacturing jobs that didn’t require advanced training and education. The current “revolution” is focused on innovation and knowledge, rather than on the production of physical goods. As the author notes, companies that produce physical goods today can send those jobs overseas or automate them, a reality that has further depleted job opportunities for high school graduates.

The most pressing problems created by urban/rural economic disparities are political and cultural. The data shows that Trump’s base is largely located in areas where jobs are vulnerable to outsourcing or automation. He  “performed well among voters without a college degree, and in places where full-time employees don’t earn very much.” Democrats, on the other hand, are overwhelmingly supported by those who live in urban areas and increasingly by inhabitants of suburbia. Extreme gerrymandering has given rural voters an edge, despite the fact that they are numerically a minority. How long that will last is uncertain.

What isn’t uncertain is the cultural gulf between those two Americas.

Our “bubbles” aren’t all digital. They are also geographic. And I have no idea how to answer the most important question posed by this situation: what should we do to ameliorate it?

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Stop The World, Indiana Wants To Get Off

I have posted before about the Indiana Legislature’s rear-guard effort to protect the increasingly obsolescent coal industry.

Earlier this year, the General Assembly passed a bill preventing Indiana utilities from switching from coal to cleaner, cheaper energy. The bill effectively blocked utilities in Indiana from closing any coal-fired power plant unless the closure had been mandated by the Trump administration – something that would never happen, given Trump’s repeated–and increasingly empty– promises to “bring back coal.”

The bill did contain one exception: a coal plant could be closed if the utility owning it could “prove” to state utility commissioners that it would be in the public interest. Even that  exception was framed to provide coal companies opposed to the closure a mechanism to drag the issue through the Indiana Utility Regulatory Commission and the courts. That would cost utilities and ratepayers huge sums of money and further delay the transition to renewable energy sources like wind and solar.

Indiana thus joined the rearguard action against the market forces that are making renewables and natural gas cheaper than coal. (So much for the vaunted Republican respect for the market.). A Democratic legislator memorably offered a snarky amendment to the bill that would have protected whale oil, too.

The state did convene a commission to study the situation, and that body has now issued its recommendations.

According to the IBJ,

Seven months after Indiana lawmakers passed a bill prohibiting utilities from shutting down coal-fired power plants before May 2021, a state energy task force is considering a sweeping array of measures that seem to favor existing large-scale utilities, many of which still burn coal, over providers of renewable energy.

The Indiana 21st Century Energy Policy Development Task Force, which was set up to guide lawmakers in crafting a long-term energy plan, released draft recommendations Wednesday after months of testimony.

Consumer advocates and environmental groups both sharply criticized the draft recommendations, charging that they would extend the life of coal plants and delay Indiana’s transition to renewable energy.

The draft didn’t include any recommendations on energy efficiency, net metering or on-site generation.

“The Task Force should resoundingly reject this draft report,” said Kerwin Olson, executive director of Citizens Action Coalition of Indiana. “It completely ignores substantial testimony given throughout the process and dismisses the current business plans Indiana utilities already have on file.”

A longer article from the Indianapolis Star included criticisms from the academic members of the commission and others who were especially concerned with the substantial areas of vagueness in the recommendations.

The vote to accept the draft report broke down along partisan lines, with the Democrats voting against and the Republicans voting to accept the draft.

It is notable that the Chair of the Commission, Ed Soliday, was the author of the above-referenced bill slowing the transition from coal (the “save whale oil” bill). Citizens Action Coalition, among others, gives him poor marks for consumer protection, and Follow the Money lists substantial contributions he has received from utilities, coal, mining, oil, natural gas, steel, and environmental services & equipment. 

Welcome to Indiana.

A historian friend of mine once characterized Indiana’s political culture as “quid pro quo.” Another friend–the late and much-lamented NUVO editor Harrison Ullmann– called the Indiana General Assembly “the world’s worst legislature.” (In all fairness, he didn’t live to see the U.S. Senate under the control of the vile Mitch McConnell.) It’s no wonder we share the distinction of being one of the 10 least environmentally friendly states with the likes of Kentucky and West Virginia.

But then, we rank near the bottom on all sorts of indices. Health, education, quality of life. And thanks to gerrymandering, those “good ole boys” who exemplify Indiana’s “quid pro quo” political culture fully intend to keep it that way.

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