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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, May 12, 2009

Speaking Against Speaking Up

And Also: The selective concern for Obama listing "empathy" as one of many criteria to replace Souter is well responded here by a professor at a conservative university. DL has more. Overall, lame. Judges are people. They will have some empathy. Kmiec's reminding that this can include empathy for people is an example of what happens when you move pass simple buzzword tendencies.


Speaking Up: The Unintended Costs of Free Speech in Public Schools by Anne Proffitt Dupre is an important book because it questions what many see as good things, providing a perspective from the other side in that the author not only teaches law but also was once a school teacher herself. OTOH, I put it down, since it was too biased. Let me quote from something I wrote elsewhere:

This book is written by a law professor and a former schoolteacher, so provides an important perspective, though one that at times was done in a somewhat slanted fashion.

For instance, and this is okay up to a point (it balances some works that do not provide enough a brief for the 'other side'), she is clearly supportive of judges giving more benefit of the doubt to school administrators. But, an important role of the courts is to do just the opposite: question the government when it claims a need to limit freedoms. This includes when children are involved.

This leads me to write this to suggest readers to bring some degree of caution. Let me touch upon a couple cases discussed to suggest where I am coming from.

The author starts with the Tinker armband ruling. Two problems at least stand out for me. First, she fails to lay some ground work to underline that this was not the first time the SC stepped into the schoolhouse & questioned the choices made by the state. They did so repeatedly by that point, particularly, but in no ways limited, to the flag salute case, that was framed by Justice Jackson (she discusses the case in a chapter on religion) as much of a free expression case as one about religious conduct. Second, the school allowed campaign buttons. An armband ... divisive ... a button by a peace candidate or a pro-segregation candidate ... or one that opposed the Civil Rights Act ... not divisive? The Court was rightly dubious.

[I would add that several cases supplied rights to children, even though they are less mature than adults, but -- like here -- often not as completely as secured by adults. For instance, In re Gault supplied due process rights to children, even though some argued the juvenile justice system was different. Why? Because the system's discretion led to abuses. But, the author here implies even a ruling that secures some hearing -- not a full blown trial or anything -- when a school suspends or expels someone is a dubious practice. As with concern for armbands, this is a bit absurd.]

Also, consider the Hazelwood school newspaper case. The author notes once that an appeals court "was persuaded by an article written by a law student." I went to the opinion and the article is cited, but before that, a line of court cases were as well. They did not "rely" on a student note alone. Ditto on another matter where the note was cited; not that such articles lack usefulness, particularly in a fairly new area of law as this was at the time. [Appeals court noted paucity of cases.]

Likewise, seriously, talking about sex and birth control is too controversial for high school students? The concern that the school would be assumed to be supportive of the view of the articles could have been dealt with by a warning. Again, not addressed by book.

I also don't know why it's an invasion of "privacy" to print personal stories with the consent of the person in question. When I talk about a personal experience, must I also get the consent of each and every person involved? Or, submit their opinions on the matter, particularly when no names are used? Is this really typical "journalistic" practice? Teens talk about personal experiences in class all the time. The quotes cited in the article were rather uncontroversial.

And, as Justice Brennan noted in his dissent, it is unclear if some "right to respond" was really central to the censorship here. But, the author dealt with Justice Brennan's dissent in three sentences. Likewise, the book failed to note that students weren't notified beforehand about the decision to omit the articles in question or why. Nor, that the articles were still distributed (without the students being punished), so the value of the school's censorship was debatable. Or, that such "prior restraint" hits to the core of the 1A, which the school said was to be the guide to the students here.

A balanced account would have did a better job covering such topics, even if it still supported the Supreme Court ruling in this case. So, in no way am I saying the bottom line of this book -- that there are "unintended costs of free speech in public schools" is wrong. I am saying that it would have been better if she made her case in a less ... yes I think it fair ... biased fashion.

This from a teacher is depressing ... it promotes ignorance and is counterproductive, since her bottom line is not wrong. And, you can very well find other books -- thus the value of this one -- that do not look at the issues with a fair and balanced eye. A recent book [God on Trial] by Peter Irons -- a strong supporter of liberal outcomes -- was valuable in that it gave each side a chance to have their say.

To be fair, some of them were not put down by yours truly, but so it goes. I stand by my criticism here all the same and do find similar ones come to mind when I read things through a different ideological perspective. Sandy Levinson, for instance, was the subject of some of my ire on his blog. It is hard to provide a truly balanced approach, and I commend all those who do a good job. Still, it is the best path, and fairly examining both sides also is often rather interesting and rewarding.