February 23, 2007

School As Mini-Democracy -- Not!

by PG

The remarks below about Posner's decision in the Brandt case have been rebutted in a post titled, "Now I am ticked off." Amber Taylor says,

I used to enjoy snarky, nasty judicial opinions like this. But the judge I clerked for was a true gentleman, and he always said that each case is important to someone, and thus we should keep our snark in check and give a reasoned and fair account in our opinions. This case was important to the kids who filed it (who are probably brats), but it's also going to be important to less obnoxious students who want to express a more sympathetic message but are foiled by autocratic administrators. Contra PG, students do sometimes have strong political views.
The idea that Posner's opinion lacked reason or that its account of the facts was unfair to the plaintiffs is simply not one with which I can agree. The gentlemanliness of Judge Richard Posner, or of any person who writes "snarky, nasty judicial opinions," is not a subject I feel capable of debating, particularly when that judge is faced with plaintiffs who demonstrated how important the case was to them by demanding bizarre injunctions against the publicizing of their misbehavior, even as they pursued a lawsuit using their real names and talked to reporters. Moreover, I specifically said that Tshirts stating a political message that administrators could not reasonably believe would be found disruptive (such as "Amend the 12th Amendment!") have a First Amendment protection with no counterbalancing weight in favor of Order.

In Brandt's case, when an outside body, a “Crisis Intervention Team,” was brought in by the school to evaluate the disruptive effect of the Tshirts, that body did not find them unduly so and the restriction on their wearing was lifted. Plaintiff Brandt's younger sister could wear the Tshirt to her heart's content. C.f. Tinker, in which the students were suspended and no attempt was made to weigh competing interests: "Even an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption." The Court's opinion emphasizes the extent to which the Des Moines school specifically discriminated against the anti-war viewpoint, while permitting the Nazi Iron Cross. Had the Chicago Public Schools Uniform Discipline Code's prohibition on clothing with "inappropriate words or slogans" been interpreted only to prohibit pro-giftie speech and not Tshirts that said "Porn Star" or "Talk Nerdy To Me," I would have more sympathy and Posner probably would as well.

My disagreement with Amber may come down partly to different ideas of the purposes of elementary and secondary schools. She may have attended schools where worthwhile ideas from one's classmates were more common than useless havoc caused by same. Having gotten a mediocre formal education in a school where the cop was armed and fights were occasionally serious enough to require an ambulance, I see the function of a school as a safe, orderly place for book learnin'. Learnin' should extend beyond the three Rs to art, music, health, etc., but the "personal intercommunication among the students" that Tinker identifies as "an important part of the educational process" is not the primary goal of establishing and funding public schools. We hire teachers to teach the kids, not just have the kids teach each other by hanging out, and to my knowledge no public school is required to have time for "personal intercommunication among the students." Students who want to have "personal intercommunication" are unrestricted from doing so outside school, and there's little reason to think the plaintiffs' parents would have limited their offspring's speech -- more likely facilitated it.

Amber writes as though school is 24 hours a day and therefore any speech regulation in that particular venue shuts down one's entire First Amendment life. I would object to state-sponsored speech restrictions in an environment that was the totality of one's existence, but happily school is not such. Much as adult life is concentrated in the workplace yet speech can be regulated there to ensure that the primary purpose of the workplace is met, minors' life is concentrated in school yet speech can be regulated there to ensure that the primary purpose of education is met. I dislike zero tolerance style policies because they often end up excluding students from schooling, but I have no problem with policies that may not fulfill Amber's dream "that in this day and age students would be encouraged to question the authorities who administer elections," when the questioning is through means that may be disruptive to the school's mission of formal education. This is in contrast to a democratic society as a whole, which has no such mission. As Posner notes,

In any event, it was not the protest as such that was forbidden, but merely a particular means of protest. The gifties were free to protest in more conventional, less potentially disruptive, ways than by the wearing of the Brandt T-shirt. They did so -- they petitioned the principal and made a presentation to the Local School Council at the principal’s urging and were not punished for doing so. Their parents amplified the gifties’ voices of protest. With many routes of communication open to the gifties, the closing of the T-shirt route inflicted the most minimal of possible injuries, if injury at all (as we doubt), to the First Amendment.
What Amber calls "[t]he wannabe-Übermenschen's demand for electoral transparency[,] a reasonable request," was met with avenues for actually affecting the Tshirt elections process. If I wear a "2000 Stolen" Tshirt to the polls, it may be disruptive, but it also may incite other voters to demand change. If I wear a "Gifties 2003" Tshirt to school, it may be disruptive and it will have no effect on the supposedly protested Tshirt election process because even if the other students happened to agree, they don't decide the rules either, because school is not a democracy. If petitioning the sources of power and authority doesn't get you what you want, appealing to the 'tards ain't gonna do it either.

I don't find the plaintiffs to be elitist because they are "gifties" -- as my earlier post noted, I was a GT student who self-segregated from the regular kids too, and I don't feel shame or guilt about that; I likely would have bored them. The charge of elitism is directed at the plaintiffs for their belief that the school is supposed to revolve around them: non-gifties are "'tards"; the class Tshirt should represent the minority gifties rather than the class as a whole; the school election rules should have allowed their groupthink bloc-voting to work; the hallways exist for them to express their ire that it didn't; they shouldn't have to pay the costs of litigation they began.

Despite Amber's outrage, she never does explain what is the harm to the students that justifies this litigation and makes baseless Posner's annoyance, and her claim that it will be important to other students whose more sympathetic message will be "foiled by autocratic administrators" seems improbable in light of existing Supreme Court precedent. The rule derived from Tinker, Southworth, et al. is that public school administrators can impinge on students' speech rights in a way that they couldn't do if they were a legislature, so long as the regulation is not discriminatory among viewpoints. (There's no suggestion that had the inappropriate word "gifties" been left off Brandt's redesign, the Tshirt would have been problematic, given that it was acceptable as a submission to the contest.) If public schools are supposed to make citizens and not just literate persons of us, I suspect this process has been highly educational for any of the gifties open-minded enough to recognize the possibility of their not being the alpha and omega.

February 23, 2007 12:27 AM | TrackBack

I have a real job but will address your points as early as possible. I find this quote from your own preceding post somewhat hard to reconcile with this latest one:

Admittedly Posner says,

The defendants also contend that there was a danger that the non-gifted children would be incensed by the gifties’ refusal to accept the result of the election, and violence might result; there apparently had been a shoving incident between a “gifty” and a “tard” a week before the gifties started wearing the Brandt T-shirt. But the evidence of tensions between the two groups of student was not developed, and so cannot be a ground for upholding the defendants’ actions. (emphasis added)

Posted by: Amber at February 23, 2007 07:02 AM

I may not be making my point about the administrative discretion clearly enough. Because undeveloped, evidence of tensions between the two groups is not in itself a ground for upholding the defendants' actions -- in other words, I am not claiming that the speech was justifiably restricted due to a clear and present danger. Rather, such evidence of tension as is in the record shows that the administration's concerns about conflict were not utterly baseless and unreasonable. There was a rational basis for restricting speech that might heighten tensions, and when a third party observer decided that the conflict concerns were not sufficient to justify ongoing punishment of the students for deliberately disobeying the rules, the administration ceased any such punishment and did not mark it against the students on their records. Think Chevron: the broad language of the Chicago Public Schools Uniform Disciplinary Code was reasonably interpreted by the administrative body, and the administrators followed the decision of an adjudicator even when that decision went against their own first instincts. I simply don't see how the school can be considered to have abused its discretion here.

If you are contending that the school has no such discretion in its interpretation of the Code, or that the Chicago school district cannot have a Code that interferes with students' speech unless those rules are at a "clear and present danger" standard, that's a bolder argument than I had previously discerned from your posts on the topic, so my apologies for having misread them. The oral argument in the case actually begins with a request that the Code's dress rules (which were changed 6 months before the lawsuit was filed anyway) be declared unconstitutional on their face b/c of the vague word "inappropriate," but I find it unlikely that any judge would remove that discretionary element for schools -- as Posner says, to take away that discretion he has to be ready to give very specific guidance in its place. In oral argument, it also is revealed that the principal told the gifties they could not wear a Tshirt the sale of which was restricted solely to gifties. If students were given no explanation about what would be considered "inappropriate," there would be a problem, but that's certainly not the case for Brandt. The students were aware of the school's interpretation of the Code, and they chose to violate it. They were aware that their speech action was deemed rude and unmannerly (are you contending that schools cannot properly require polite behavior of their students because it would violate their First Amendment rights?).

Posted by: PG at February 23, 2007 03:32 PM

I think you've got much the better of the argument here, PG. Don't courts consistently find considerable room for school administrators to exercise this sort of discretion (and a correspondingly narrower scope for the First Amendment)?

Frankly, I didn't find Posner's opinion to be inappropriate in tone. Clearly, he's irritated, but I didn't read it as snarky.

On a different topic, I was fascinated to learn that the "capable of repetition yet evading review" exception to normal standing requirements requires that the harm be capable of repetition on the same person. So it works in the abortion context because the same woman might get pregnant again, but not in a school case because the same kid will never be in middle school again. It seems to me that this doctrine could close off a lot of school litigation.

Posted by: Tom T. at February 23, 2007 05:08 PM

Tom T.,

Thanks. Posner and most other judges will not want to have juries decide over and over whether a given behavior by a schoolchild was "inappropriate." I'm not even sure this academic discretion is limited to people under 18; my alma mater's honor code prohibits lying, which some people might consider First Amendment protected speech, and the only punishment available for honor violations was expulsion -- a much harsher penalty than these plaintiffs faced. We had honor trials that gave a certain amount of due process, but not the same level one would have with a real trial, either in the regular judiciary or in front of an ALJ.

Re: standing, you get around the requirement by filing a class action on behalf of all students who have or will matriculate at the school. Sosna v. Iowa, 419 U.S. 393 (1975), the plaintiff represented a class that was challenging an Iowa law that required persons to reside there for a year before seeking a divorce in Iowa's courts. The Supreme Court held that, although the plaintiff successfully divorced in another state, her attorneys could continue to competently advance the interests of other members of the class.

Posted by: PG at February 24, 2007 04:00 PM
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