Decius wrote:
This post links to the Doninger decision, joined by Obama Supreme Court nominee Sotomayor. I think its a very dangerous decision that represents a view of the Constitution which runs counter to its intent.

I oppose Sotomayor's nomination to the Supreme Court because of this decision. The decision was not written by Sotomayor, but she joined in it, so she has to accept responsibility for the position it stakes out, as does Loretta Preska who was on Bush's Supreme Court short list. Its possible that the decision does not actually reflect Sotomayor's views today, but as it is only a year old, that seems a bit far fetched. If Sotomayor can't stand behind this decision, that will need to made clear in the confirmation process. Otherwise I must oppose her nomination, FWTW.

The First Amendment protects your right to petition the government for a redress of grievances. It does not, however, give you the right to disrupt other lawful activity in the course of your petition. An example might be hosting a sit-in in the middle of a busy public road without a permit. The police can rightfully arrest you for that. Its not your ideas that are at issue, but the fact that you are obstructing traffic. Your acts of expression can leave the realm of protected speech and enter into the realm of action which might be reasonably prohibited by the government.

Before opposing the court decision, it is worthwhile to look at what the alternative ruling would have meant.

First, the only consequence Doninger faced was that the administration refused to endorse her for Secretary. Apparently this is part of the school handbook - officers have to be endorsed. They did this after she mounted a somewhat successful campaign to waste their time. Student council is an extracurricular activity, and extracurricular activities are treated differently by the court - presumably because students are not forced to endure them.

Had the court ruled in Doninger's favor they would have been forcing the administration to endorse a student for a position of working with the administration after she had engaged in behavior to deliberately hamper their ability to get their job done.

Second, the court explicitly stated that this ruling offered no opinion on any other sort of administrative action or punishment. Doninger did not get suspended, she was not removed from the offices that she held, and there was no academic consequence.

Basically, because this relates to an extracurricular activity, her removal from a student council office does not constitute government sanction. See below:

19 In this way, the instant case bears similarity to Lowery v. Euverard, which involved a group
20 of high school football players who were removed from the team after signing a petition expressing
1 their hatred of the coach and their desire not to play for him. The players lodged a First Amendme... [ Read More (0.1k in body) ]

zeugma wrote:
Before opposing the court decision, it is worthwhile to look at what the alternative ruling would have meant.

You haven't posted in a while... :)

Here are my counterpoints to this line of argument.

1. My purpose here is not to defend Doninger's right to serve on the student council but rather to express opposition to the specific reasoning employed in this decision. Although I think its unlikely, it is possible that there is a legitimate path that gets you to excluding Doninger from participation, but path followed here is not legitimate. My principal point of concern with this decision is the notion that Doninger's blog post was not protected by the First Amendment.

2. I totally reject the idea that it is a waste of time for the administration of the school to have to listen to and respond to comments and criticism from students and parents who disagree with their decisions. I also totally reject the idea that Doninger's purpose was to waste the administration's time. As I previously argued, the expression of views by the general public toward public officials is a fundamental characteristic of political discourse in a free society. The government must make room for it and, more importantly, must respect it, as this is how democratic institutions work. The alternative here - that the people should not waste public officials precious time with their petty, misinformed, and insignificant opinions, is the hallmark of totalitarianism.

3. The court here strongly implies that although these sanctions have no constitutional implications, there might be other kinds of sanctions not considered here that do have constitutional implications. In your response you turn this implication into a counterpoint, arguing that things would be different if the student was suspended. This view must be considered in light of the fact that court is arguing that the blog post was not subject to First Amendment protection due to the fact that the operation of the school was potentially disrupted. I'll admit that my knowledge is not comprehensive, but as far as I know, what the court implies here is a novel view of the First Amendment. AFAIK speech either is or is not protected. There is no gray area here. If it is protected, it cannot be sanctioned at all. If it is not protected, it can be banned outright.

4. The school is a public institution and not a private club. Even though extracurricular functions are voluntary, the administration of the school cannot bar students from participating for any reason they desire. For example, the Boy Scouts of America bans homosexuals and atheists from participating. They can do this because they are a private institution. A school cannot similarly ban homosexuals or atheists from participating in the student government. The school cannot refuse to endorse student government candidates based on the legitimate exercise of their First Amendment rights... [ Read More (0.3k in body) ]

Decius wrote:
You haven't posted in a while... :)

True... I have been lurking on this site for a while and have been meaning to start posting.

I am going to argue some of these counterpoints, and concede on at least one. After doing more research, it is pretty clear that the administration acted in a particularly unskillful manner bordering on total incompetence. I want to make it clear that I don't endorse their actions as particularly effective from an educational standpoint. However, that is for the school board to look at - not the federal court.

While I think that the right to disagree on policy is an important and extremely serious constitutional right, I also believe that in order for a school to create an environment of intellectual curiosity and safe discussion it is important that students, teachers, administrators, and all members of the school community refrain from using hurtful and blatantly disrespectful language to describe other members of the community. It is the role of the teacher or administrator to know better than to engage in such community directed speech, and is actually a clear breach of contract if they do. It is the role of the student learn to refrain from such ad hominem attacks, and the responsibility to facilitate this growth falls on the teachers and administrators. This applies to interactions inside and outside of school, as verbal abuse made off campus may have the same degrading effects as verbal abuse made on campus.

In a voluntary classroom this principle may be readily applied. A student has a First Amendment right to engage in hurtful and disrespectful language against their chaperones outside of school, but this constitutes a breach of the agreement they made, and steps should be made to restore trust before the offending student may continue to work in a voluntary setting.

I am not sure of a good answer for the mandatory classroom. The student has agreed to nothing, and so may engage in hurtful language. However, in fairness to the other members of the classroom - it would be reasonable to remove a student who repeatedly attacks the teacher or other students in a manner that materially degrades the quality of the environment. Care would need to be taken to alert the student to their constitutional right to engage in such behavior, but also of the right of others not to work in such an environment as well as the probable interpersonal and professional consequences of making such publications. Alternative materials, such as videos and books, would need to be given to the student.

1. My purpose here is not to defend Doninger's right to serve on the student council but rather to express opposition to the specific reasoning employed in this decision. Although I think its unlikely, it is possible that there is a legitimate path that gets you to excluding Doninger from participation, but path followed here is not legitimate. My pr... [ Read More (1.6k in body) ]

Thanks for your response and research. You've given me a lot to think about.

One of the points of disconnect between us is that you are focusing on the big picture where as I am concerned with a very specific detail.

I want to start by focusing in on that detail - the heart of my concern with this decision. Doninger publicly advocated that people express their views about the administration's policies. This is the very essence of democratic political discourse. The court, however, took the view that the mere fact that administration officials might have to listen to and respond to opinions expressed by people who were inspired by this blog post satisfies the "substantially disruptive" standard set forth in Tinker.

Thats wrong, and its not just a little wrong. To place such a basic characteristic of political discourse within the bounds of what may be constitutionally prohibited is to do away with the First Amendment entirely.

I don't think anything else really matters.

I don't think it matters that this is a preliminary injunction. The court makes the argument that this speech is "substantially disruptive." The argument is clear and presented without caveat. I would be just as concerned about this view if it appeared in a news paper oped signed by the same people.

It also doesn't matter if there is another way of thinking about this that is both Constitutionally acceptable and allows the school to bar Doninger from participating in the student council. The reasoning that the court used to reach its conclusion is more important than the result they reached.

Nevertheless, you do raise an interesting argument in favor of the court's result - that participation in extracurricular activities requires a condition of mutual respect between student and administrator.

There is something to be said for that. But there is also a problem - the power relationship between student and administrator is not balanced. If the administrator perceives that the student does not respect her, she can impose nearly arbitrary consequences. Conversely, if the student perceives that the administrator does not respect her, she has almost no recourse whatsoever.

(A similar problem exists in the coach case. Its not like the students can just go play for a different football team...)

In this case it sounds like the student was banned from participating in the student council and any future Jamfest. This doesn't really sound like a legitimate attempt to teach a lesson. It sounds an lot like "arbitrary consequences."

I honestly don't think that this is a reaction to the use of "inappropriate language." The student and the administrator got in a fight. The administrator, in anger, decided to react to the situation by using her power to impose arbitrary consequences, rather then trying to reconcile the situation. This court case tests the limits of the administrator's ability to impose arbitrary consequen... [ Read More (0.3k in body) ]

In their zeal to rationalize support for Obama's decision making, several people on the left are arguing that Doninger is "OK" because its only a preliminary injunction hearing.

I reject that view for three reasons.

1. The ruling does not present the possibility that Doninger's blog post might turn out to be protected speech nor does it narrowly refuse the injunction based on a concern that there is some possibility that Doninger might loose at trial. The ruling very strongly favors the school. It argues that Doninger has no chance because her speech clearly isn't protected by the First Amendment. This isn't a case where the court thought it was a close call.

2. As I've argued elsewhere, the reasoning in this decision is deeply flawed and corrosive to democratic values. The fact that its just a preliminary injunction doesn't change the character of the argument being made.

3. The First Amendment is a strong positive right. The government can rarely sanction acts of expression. We should expect that most preliminary injunctions for first amendment claims will be issued unless the claim is facially unreasonable.

janelane wrote:
Hey, have you seen this case of her's? Seems there are also concerns about her persuasiveness.

-janelane

Interesting read... I don't like the way this author seems to imply that support for the police is partisan... The question is whether Sotomayor's logic and reasoning was sound. I'd have to do more reading.

janelane wrote:
Hey, have you seen this case of her's? Seems there are also concerns about her persuasiveness.
-janelane

Another thought about this is that it is an example of a prosecution of someone who was innocent (or at least had an affirmative defense for his actions). This happens. Most of the negative consequences stem from the effects of being wrung through the legal system as a defendant, which can be devastating.

I think that our legal system has some serious systemic weaknesses of which this is an example. We talk about presumption of innocence but in many respects our system presumes guilt. People who are charged often loose their jobs. While we have whole government institutions full of investigators and prosecutors who are devoted to putting people in prison, we offer up only the most meager public defense we can get away with offering. You have to buy your defense, the price goes from zero to infinity, and if you care about your freedom you'll spend every penny you have, guilty or innocent.

Basically, the system is heavily weighted against defendants, and very heavily weighted against poor defendants. There is a presumption of guilt that underlies the architecture of the system, and it has serious consequences for innocent people who get caught up in it.

Decius wrote:

janelane wrote:
Hey, have you seen this case of her's? Seems there are also concerns about her persuasiveness.
-janelane

Another thought about this is that it is an example of a prosecution of someone who was innocent (or at least had an affirmative defense for his actions). This happens. Most of the negative consequences stem from the effects of being wrung through the legal system as a defendant, which can be devastating.

I think that our legal system has some serious systemic weaknesses of which this is an example. We talk about presumption of innocence but in many respects our system presumes guilt. People who are charged often loose their jobs. While we have whole government institutions full of investigators and prosecutors who are devoted to putting people in prison, we offer up only the most meager public defense we can get away with offering. You have to buy your defense, the price goes from zero to infinity, and if you care about your freedom you'll spend every penny you have, guilty or innocent.

Basically, the system is heavily weighted against defendants, and very heavily weighted against poor defendants. There is a presumption of guilt that underlies the architecture of the system, and it has serious consequences for innocent people who get caught up in it.

When I lived in Russia, where the police can arrest/rob you at random, and if you enter the justice system you're likely to only get out in a reasonable amount of time if you have enough money to afford a bribe... someone asked me if it was like that in the US. I started to say that it was different, but after thinking about it, I said that it was an identical system, although the money goes to pay for a defense, rather than a bribe to the judge.

Lacking resources for bail or a defense, our system is comparable to the Russian system for poor people. And if you have lots of cash, you can to one degree or another buy your way out of it. Two criminal justice systems for two classes.

Ironically, under the old soviet system police had trouble finding a reason to hold Chikatilo on several occasions, even though he was the no-brainer primary suspect.

Jello wrote:

Decius wrote:

janelane wrote:
Hey, have you seen this case of her's? Seems there are also concerns about her persuasiveness.
-janelane

Another thought about this is that it is an example of a prosecution of someone who was innocent (or at least had an affirmative defense for his actions). This happens. Most of the negative consequences stem from the effects of being wrung through the legal system as a defendant, which can be devastating.

I think that our legal system has some serious systemic weaknesses of which this is an example. We talk about presumption of innocence but in many respects our system presumes guilt. People who are charged often loose their jobs. While we have whole government institutions full of investigators and prosecutors who are devoted to putting people in prison, we offer up only the most meager public defense we can get away with offering. You have to buy your defense, the price goes from zero to infinity, and if you care about your freedom you'll spend every penny you have, guilty or innocent.

Basically, the system is heavily weighted against defendants, and very heavily weighted against poor defendants. There is a presumption of guilt that underlies the architecture of the system, and it has serious consequences for innocent people who get caught up in it.

When I lived in Russia, where the police can arrest/rob you at random, and if you enter the justice system you're likely to only get out in a reasonable amount of time if you have enough money to afford a bribe... someone asked me if it was like that in the US. I started to say that it was different, but after thinking about it, I said that it was an identical system, although the money goes to pay for a defense, rather than a bribe to the judge.

Lacking resources for bail or a defense, our system is comparable to the Russian system for poor people. And if you have lots of cash, you can to one degree or another buy your way out of it. Two criminal justice systems for two classes.

There is an important difference in that the people who do the arresting don't get the money, but the availability of high paying jobs in criminal defense is a structural part of the system that provides a long term incentive to prosecutors.