March 06, 2007

One Last Brandt v. Board of Education Post

by PG

While writing my previous posts on this case, I hadn't noticed that the named plaintiff himself had posted on The Legal Reader, describing his situation thus:

The details of what happened are trivial except for this last one: an authority figure invented a safety issue in order to squelch freedom of speech. Besides showing the safety issue was imaginary, our primary legal obstacle is whether we, as 14-year olds, had free speech rights. The federal judge in our case has ruled that, at this stage, we have sufficiently established our claim that our free speech was violated.

So what harm was done when we were prevented from wearing our shirt? Well, what harm was done when the government censored the NY Times Op-Ed page a month ago (the White House successfully pressured the CIA pre-publication board to censor dozens of key lines of an op-ed critical of the administration’s policies on Iran)? To take it even further, what harm was done when a certain bus passenger in Montgomery, Alabama was told to get to the back of the bus?

I understand that compared to censorship in the NY Times or the Civil Rights Movement, our fuss over a shirt was a “kid-issue.” Don’t confuse that with “trivial,” though. We all were kids at the time - the things that seemed big to us were, inevitably, kid issues. I’m not pretending that our shirt bears an iota of the significance of the op-ed or Rosa Parks’s bus seat. The fact is, though, there is a striking similarity in each of these cases of civil rights: the oppressed in each situation drew a line, saying an issue was significant enough that they were not willing to sit idly by while their rights were usurped.

What keeps our democracy vital is the people who ensure that the rights and ideals granted by the Constitution play a role in every corner of politics. If kids aren’t taught to think democratically about “kid issues,” how are they as adults expected to think democratically about “adult issues?” Unlike eligibility to vote, deep understanding of civil liberties does not automatically come at age 18. Civil rights aren’t something to just reflect about on Martin Luther King Jr. Day; public schools have an obligation to foster a democratic attitude in the mind of each and every student.

That's only a partial quote of Brandt's comment; despite the encouragement of The Legal Reader's post title, he describes the kids who didn't vote for his design as "two regular classes" rather than as "'tards."

I suppose what I find most puzzling about the case is the First Amendment analysis that doesn't seem to recognize the concept of "time, place, manner" restrictions. Not being able to speak publicly at all about something important to one is indeed a serious impingement on one's civil rights, which is why the Supreme Court generally allows a total speech ban only when what one would like to express poses a clear and present danger to safety and security. But Brandt didn't face any such law -- indeed, the NYTimes itself faced not a legal restriction, but merely pressure to which it bowed rather than get into a fight with the White House. (I'd really like to see the White House try to pull another Pentagon Papers, but the Times lacks my spectator's instinct in this matter.) Government employees sign an agreement not to disclose matters without their supervisors' consent, a pact that follows them even after leaving the civil service, and this is the one legal restriction on speech involved. Nonetheless, people make the choice to have their speech thus circumscribed when they sign up for a government job and the access to confidential information that such positions entail.

So let's be clear on what Brandt and the other plaintiffs were demanding: that they be able not only to express themselves in the time and place of their preference -- during school hours, on school property -- but also that they be able to express themselves in a particular way, through wearing a Tshirt that said, "Gifties 2003." Expressing themselves through complaints to the principal or speech to their teachers and classmates was not enough; the contest-losing Tshirt was necessary. At oral argument, Brandt's mother said that the gifted students had passed around a petition about the Tshirts, and did not claim that the petition had been banned or that they had been punished for it. On the facts I've seen and heard in the opinion and oral argument, it seems that the only way the principal wouldn't let the gifties complain was through wearing the Tshirt.

If they had been attending a private school instead of the "gifted" classes of a public school, there would be no case at all because they wouldn't have been able to claim a First Amendment right against a private entity. The principal did indeed overreact, and that the Crisis Intervention Team was correct in saying that the students should be able to wear the Tshirt without punishment. But the principal did not behave so unreasonably that he overreached his administrative discretion. Though Brandt describes the punishment as "harsh and vindictive," it was merely a loss of privileges. There was no suspension, expulsion, corporal punishment, or even a disciplinary mark on the students' records. (I find Brandt's claim that the students weren't allowed to go to the bathroom while wearing the Tshirt somewhat difficult to believe; his mother didn't mention it at oral argument, and keeping kids from going to the bathroom all day long is flirting with liability for a urinary disorder. Surely the teachers wouldn't have students, particularly female ones, whip off the Tshirt and go to the bathroom topless.)

Even when not using the word "'tard," however, Brandt's sense of privilege still comes through. He is outraged that "many of our teachers treated us like delinquents," apparently never noticing that he was, in fact, breaking the rules and therefore was delinquent -- how could a gifted student be a delinquent? Brandt says, "The principle went so far as to liken our behavior to that of gangs," apparently unaware that insistence on wearing a uniform type of clothing to distinguish one's group from other groups is a type of behavior that marks gangs, which is why principals were empowered to prohibit such apparel in the first place -- how could gifties be like a gang?

At least Rosa Parks didn't bitch about getting punished when she broke a rule, even though the rule was an unconstitutional one with no reasonable concern behind it. Martin Luther King Jr.'s tactics are particularly notable because he accepted the assaults on his dignity, and even on his body, as necesary to expose the injustice of the system that perpetrated them.

I take no pleasure in criticizing Brandt. He's clearly a bright, articulate young man, but this experience doesn't seem to have given him any sense that the gifties' behavior, even if Posner is wrong and it was First Amendment protected, was ill-mannered and juvenile. The First Amendment, as KRS noted, tends to be most necessary for the deservedly unpopular expression. Because he has staked it out as an issues of civil liberties, and derides the principal as having no authority over them ("prohibited by nothing other than the principal’s arbitrary rule"), Brandt seems to believe that what actually underlies his defiance -- the failed bloc voting, the incredulity that his design could have lost, the manipulation of his status to act in ways that would have been promptly punished in the regular classes -- has become ennobled. No longer are the plaintiffs a group of privileged children whose parents urge them on in disobeying the rules; no, they are an embattled band of civil rights crusaders.

Or democrats.

March 6, 2007 05:28 PM | TrackBack
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