[The Volokh Conspiracy] The Unconstitutional State of the Union Address:
An interesting post from my friend, Capital University law professor David Mayer, who has just started a new blog. --Posted by David Bernstein to The Volokh Conspiracy at 1/20/2004 11:35:20 PM
[The Volokh Conspiracy] Anti-Semitism and the Religious Right:
An interesting email from a reader: Concerning your post 'Interesting findings from the American Jewish Committee survey...', specifically the question which asks about anti-semitism in the religious right: I was raised in a fundamentalist Christian home. My father and grandfather were Southern Baptists ministers, my uncle an Assembly of God minister. I was a fervent believer immersed in that world until the age of about 20, and though at 50 I've drifted far from fundamentalist dogma, I'm still in contact with friends and family who remain firmly entrenched. Those are my credentials for stating the following; THE RELIGIOUS RIGHT IS STAUNCHLY PRO-JEWISH AND PRO-ISRAEL. American Bible-belt Christianity, like most religion, is exclusionary of disbelief and teaches that Judaism is an incomplete truth due to it's rejection of Jesus as the Messiah. Jews, however, are recognized by them as the original chosen people of God and contemporary Israel is seen as the fulfillment of Biblical prophecy. As such, fundamentalists feel it is America's obligation to give Israel all necessary aid and support. If fundies are hostile to Jews, how to explain the widespread support given Israel throughout the Bible-belt states? Those good old boys cheering Israel on at every turn spent their formative years in Sunday School. The first time I encountered the accusatory "The Jews killed Jesus" was in the media, possibly a movie. Though I don't doubt it has been used to justify horrible actions against Jews, it wasn't, and isn't, a fundamentalist accusation. Of course we knew that Jews called for Jesus' death, but Jesus, his disciples, Paul, etc. were Jews. These were the Biblical heroes (with Jesus beyond hero status). It was the chief priests, pharisaic types, that were singled out as the particular culprits, and though they were Jews, the chief priests modern counterparts were, in our minds, Catholics or perhaps Episcopalians. The fellows who worshiped outward form rather than the indwelling God. Ritual rather than commitment. As misguided as this might have been, it's a far cry from the common misperception that Christians blame (and therefore hate) the Jews for the death of Jesus. In your comments you state that surveys indicate that the religious right is no more anti-semitic than America in general, and though all my evidence is personal and anecdotal, I am sure that they are much less so. When my grandmother was 92 or so, one of her few remaining desires was to visit 'The Holy Land'. My mother booked the two of them on a church sponsored tour. On returning, the focus of their enthusiasm wasn't having walked where Jesus walked, or some mystical/religious connection of place. It was what the Jews had accomplished there. Their attitude was that only the chosen could make the desert bloom on such a scale. Who else could put together a nation like that in 50 years! They were buzzing with admiration. Other of my fundamentalist friends have returned feeling the same. The Israelis have no better friends than these Christians. Nor the Jews in general.I can't vouch for the accuracy of this perspective, but I haven't seen much in the way of contradictory evidence. It's true that anti-Semitism has traditionally had a decent foothold in the rural South (think Theodore Bilbo), but I think that anti-Semitism is highly correlated with low education, and until rather recently the rural South was pretty backwards economically and educationally. If so, it would make sense that as the South has caught up with the rest of the country, anti-Semitism based on ignorance would decline, and the philo-Semitism of much evangelical teaching would start to have a more pronounced effect. --Posted by David Bernstein to The Volokh Conspiracy at 1/20/2004 11:43:25 PM
[The Volokh Conspiracy] The Unconstitutional State of the Union Address:
An interesting post from my friend, Capital University law professor David Mayer, who has just started a new blog. --Posted by David Bernstein to The Volokh Conspiracy at 1/20/2004 11:35:20 PM
[The Volokh Conspiracy] A little bit of embarrassment seems to be in order:
An article in Sunday's L.A. Times Calendar section (seems to be unavailable unless you're a subscriber) reports on a new documentary about Julius and Ethel Rosenberg ("an exceptional documentary, short-listed for this year's Academy Award, a compelling emotional narrative laced with explosive political material"), who were convicted in the 1950s of spying for the Soviets, and executed for it. The documentary was directed by their granddaughter, Ivy Meeropol. The article is not by any means entirely pro-Rosenberg, but I was still struck by the second paragraph below:But what also drove [Ivy] was the fact that "I was tired of the simplistic version of this story, what history remembers, the way everyone thinks they stole the secret of the atomic bomb. I knew this wasn't true, I knew they were more than that, and I wanted to bring their story to people who don't know it or have closed their minds to it. And I needed to know what was worth standing up for, what they were willing to die for."
What this involved was re-creating the world of left-wing activists from which the Rosenbergs emerged, entering it through interviews with friends like Osheroff who are still alive and remember a time of hunger and privation, when, as one says, "you had to be dead from the neck up not to feel radical change was necessary." People, Ivy says, who were "idealists with good intentions who sincerely believed the Soviet Union was a better way. It's painful that people continue to dismiss that, and I wanted to reclaim it for them."Now I'm sure that some, perhaps many, American Communists, including those who continued supporting the Soviet Union into the 1950s -- past the Ukrainian famine, past the purges, past the Ribbentrop-Molotov pact, past the enslavement of Eastern Europe -- were misguided "idealists with good intentions." True, to remain "misguided idealists," they had to have willfully blinded themselves to the reality of what the Soviets were doing. But human beings have a remarkable capacity to do that sort of thing.
Still, the fact remains that either these "left-wing activists" were evil (i.e., not really misguided idealists, but people who fully supported slaughter and tyranny in the name of Communism) or fools: People who failed to realize that Communism would create more hunger and privation, as well as suppressing freedom and killing people. And at the same time, history shows that many of those who didn't "feel radical change was necessary" (a category that of course includes many New Dealers, conservatives, moderates, and many others) -- who were supposedly "dead from the neck up" -- were smarter, wiser, and more humane.
I don't think I'm asking for much here -- just a bit of embarrassment. "Our friends were dupes of the Soviets, and it turns out many of their opponents were actually smarter and more morally well-grounded than they were, but we should remember that they were just misguided idealists with good intentions" might work. I'm not sure whether it will work for everyone, but it's at least plausible. "You had to be dead from the neck up not to feel radical change was necessary," said when many of the "dead from the neck up" have now been obviously vindicated by history and those who supported pro-Soviet "radical change" have been proven to be fools or worse, is not a strong argument.
Unless, of course, after all that has been discovered about the awful history of the 20th century, you still think that your pro-Soviet buddies were actually right. In which case, I wish you had spent 1937 in the "better way" of the Soviet Union, rather than in the "hunger and privation" of the United States. Or that part of 1937 before you really did become "dead from the neck up."
--Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 12:41:54 AM
[The Volokh Conspiracy] We're all big spenders now:
Last night's State of the Union included the usual laundry list of costly new proposals, further cementing President Bush's record as a profligate spender. Even with increased economic growth, pursuing these initiatives will further delay deficit reduction. Alas, fiscal conservatives don't have anywhere else to turn, according to this study by the National Taxpayers Union Foundation. To the contrary, based on their campaign platforms, NTUF found that every one of the contenders for the Democratic nomination would increase spending even more than it has grown under President Bush. The thriftiest Democrat, Senator Lieberman, calls for only $170 billion in new spending. By comparison, Governor Dean calls for $223 billion in new spending and Senator Kerry wants to spend an additional $265 billion. The loftiest would-be spender is Reverand Sharpton, whose campaign wish list is over $1 trillion, so be thankful he hasn't a prayer in the primaries. To put these numbers in perspective, NTUF notes the projected federal revenue reduction from the 2003 tax cuts some Democratic candidates want to repeal is only $135 billion. Alas, were there only more politicians who could keep their hands out of our wallets. --Posted by Juan Non-Volokh to The Volokh Conspiracy at 1/21/2004 05:44:29 AM
[The Volokh Conspiracy] Secondary consequences of smoking bans:
Clay Whittaker, one of the youngest bloggers, recently posted to the following: "I have just heard in the news that--as of today--Toledo bars have found a loophole in our smoking ban. As you all probably know, a few months ago a ban on all smoking in bars and restaurants in the Toledo area was passed, unless it was for a charitable event. So now the bars have started a not-for-profit corporation that charges people a buck to smoke in the bar, it than goes to their corporation: Taverns For Tots. This shows once again that you can try to beat down business with socialism, but it will fight back to the bitter end. The city of Toledo's lawyers are looking into the legality of this plan, and will no doubt file a lawsuit. I?m interested in seeing if this is, in fact, legal." The money will be used to benefit economically disadvantaged children. Here is the original article. --Posted by Tyler Cowen to The Volokh Conspiracy at 1/21/2004 06:57:34 AM
[The Volokh Conspiracy] Secondary consequences of smoking bans:
Clay Whittaker, one of the youngest bloggers, recently posted the following: "I have just heard in the news that--as of today--Toledo bars have found a loophole in our smoking ban. As you all probably know, a few months ago a ban on all smoking in bars and restaurants in the Toledo area was passed, unless it was for a charitable event. So now the bars have started a not-for-profit corporation that charges people a buck to smoke in the bar, it than goes to their corporation: Taverns For Tots. This shows once again that you can try to beat down business with socialism, but it will fight back to the bitter end. The city of Toledo's lawyers are looking into the legality of this plan, and will no doubt file a lawsuit. I?m interested in seeing if this is, in fact, legal." The money will be used to benefit economically disadvantaged children. Here is the original article. --Posted by Tyler Cowen to The Volokh Conspiracy at 1/21/2004 06:57:34 AM
[The Volokh Conspiracy] The difference between libertarian and conservatism:
Jim Kalb speaks on the difference between libertarianism and conservatism: "Conservatism and libertarianism are both generally viewed as right-wing. Can you spell out the main differences between them from the conservative point of view? What, in your view, are libertarianism's shortcomings? Kalb: They're both viewed as right-wing because centralized bureaucratic control is the main engine of social rationalization at present. From a theoretical standpoint ideological libertarianism is just another form of rationalism and not at all conservative. As a practical matter though it's mostly an ally of tradition because it opposes the main current enemy, the PC social-services state. The shortcoming of ideological libertarianism is that it says that a very few simple principles are enough for the whole of government and social life. Depending on circumstances that shortcoming can cause serious problems. In practice of course things get complex. People who call themselves libertarians sometimes have a strong streak of philosophical conservatism. They might find libertarian terms a better way to explain their case to the American people and even themselves. That kind of fusionist position can work to the extent the political disputes that matter don't involve government functions that conservatives want to keep and libertarians don't. " I would put it a little differently. I view conservatives as holding first a value-laden vision of what America should look like, involving tradition, family, and a certain sternness and emphasis on just desserts. Libertarians also hold a value-laden vision, but their rhetoric involves a greater emphasis on "liberal neutrality" and competing lifestyles. I view the competing lifestyles vision as much of a particularist value as the conservative vision (while noting I am closer to a libertarian in this regard, but I do not give libertarianism an a priori elevation over conservatism on liberty grounds). Libertarians share the conservative emphasis on just desserts, hence the immense popularity of Ayn Rand in the libertarian movement. It is for this reason that alliances between libertarians and conservatives are often possible - they share a key value or presupposition. Modern liberals tend to emphasize beneficience instead of just desserts. My personal view is to share this value judgment with liberals (I am a determinist and usually find merit arguments unpersuasive), yet through positive arguments I get to something closer to a libertarian position. We also can (and should) use positive arguments to determine whether implementing the conservative value-laden vision, or the libertarian competing lifestyles vision, will do more for human welfare. In other words, we can make conservatism and libertarianism more compatible, and commensurable in the realm of positive argumentation, but only by dropping their upfront values into a position of secondary relevance. That's a lot of big ideas in a medium that allows only for short posts, I do understand. I very much enjoyed Kalb's observations across the board, read the whole interview, with part three still to come, at www.2blowhards.com. --Posted by Tyler Cowen to The Volokh Conspiracy at 1/21/2004 07:38:38 AM
[The Volokh Conspiracy] A couple of unrelated observations:
It's not widely known that the song Istanbul (Not Constantinople) is not by They Might Be Giants, good as they are, but is in fact quite old. How old? Why, I was listening to it in the late '70s! The words are by Jimmy Kennedy, the music by Nat Simon, and it apparently dates from, at the latest, 1953; it was originally popularized by The Four Lads. Also, check out the true scoop on Latin and Greek plurals (link through Hanah, who got it from GeekPress). One word: Fex. Finally, on the Wasabi sect of Islam (thanks to Best of the Web), I also recommend Shiite-ake mushrooms. Hanah likes to drink Korange juice, while I like to drink Sunni Delight. Also, there's pie Allah mode? (We came up with all these on our own, but of course there's nothing new under the sun.) --Posted by Sasha Volokh to The Volokh Conspiracy at 1/21/2004 10:12:27 AM
[The Volokh Conspiracy] Libertarians vs. conservatives:
In response to my last post, I received this from a reader who wishes to remain anonymous: "Prof. Cowen, just a flippant note about the difference between men who describe themselves as libertarians and men who describe themselves as conservatives: Male libertarians are generally conservatives who want to date liberal women. For example, in law school, when guys that I knew held conservative positions would start talking to me (a liberal) in flirtatious tones, I would ask, "Aren't you a conservative"? They would always answer, "Actually, I'm a libertarian." I'm not sure if any man ever described himself to me as a conservative, and I went to law school in Texas." --Posted by Tyler Cowen to The Volokh Conspiracy at 1/21/2004 12:38:35 PM
[The Volokh Conspiracy] Much of the Patriot Act is neutral legislation for civil liberties:
Who said that? Well, the executive director of the ACLU, Anthony Romero:"While much of the Patriot Act is neutral legislation for civil liberties, it contains about a dozen provisions that simply go too far," Romero added. "These dangerous provisions increase the chances that innocent Americans will be swept into terrorism investigations by removing traditional checks and balances on law enforcement and oversight powers from the judiciary."Obviously, the ACLU still has serious reservations about the Patriot Act -- a dozen bad provisions would still make for a bad law (though I personally don't see a dozen bad provisions there). But the ACLU's acknowledgement that much of the Act doesn't pose any civil liberties problems is noteworthy, I think, given the vitriolic attacks that many have launched against the Act, attacks that often didn't include such acknowledgments. --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 12:32:42 PM
[The Volokh Conspiracy] Too unilateral:
One of InstaPundit's readers complains to the Washington Post about one of their articles:In addition to the selective inaccurate quoting, the Post's copy editors didn't catch the Copy Editing 101 glitch in the piece. A policy can't be "too unilateral." It's either unilateral or it's not. There are no degrees of unilateral, just as there are no degrees of unique.Don't let the man read the Preamble to the Constitution, which talks about forming "a more perfect union." In fact, things can be more round, more perfect, more unilateral, and more unique; that's just shorthand for "more nearly round," "more nearly perfect," "more nearly unilateral," or "more nearly unique." In the words of Webster's Dictionary of English Usage, quoting James C. Fernald, English Grammar Simplified (1946):Adjectives expressing some quality that does not admit of degrees are not compared when used in their strict or full sense . . . . But such adjectives are often used in a modified or approximate sense, and when so used admit of comparison. If we say, "This is more perfect than that," we do not mean that either is perfect without limitation, but that "this" has "more" of the qualities that go to make up perfection than "that"; it is more nearly perfect. Such usage has high literary authority[.]Now I actually don't like "more unique"; it sounds imprecise and clumsy to me. I probably wouldn't like "more perfect," either, outside the Preamble, though that would likely be because it sounds a bit archaic. But sometimes there's just no very quick synonym that's more literally precise. And in any event, that something sounds inelegant doesn't mean that it's ungrammatical. (Note also that "too unilateral" may sometimes mean "unilateral in too many instances," though that wasn't the Post's usage.) --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 12:59:51 PM
[The Volokh Conspiracy] SAT scores:
Cathy Seipp properly criticizes an anti-SAT piece in the L.A. Times. I'm not an expert on the SAT, but to the best of my knowlege the Times op-ed has still more problems. Just for starters,Considering GPAs instead of SATs risks favoring students who go to schools where there's a great deal of grade inflation. Letting in the top 10% of each high school will let in students who are quite academically weak, but went to a high school where the other students are weaker. The result is not only bad for the intellectual quality of the college, but is also no service to the weaker students who will now find themselves at the bottom of the class, competing against others who are much more prepared for college. The SATs coupled with GPAs are actually quite good predictors of college performance, for all the criticism that the SAT has drawn, and to my knowledge are much better predictors than GPAs alone. That "white students score 206 points higher on average than nonwhites" on the SAT isn't a sign of bias in the SAT -- I am told that it actually slightly overpredicts college performance by black and Hispanic students -- but rather a sign of the unfortunate underpreparedness of many black and Hispanic high school graduates. This is a problem that needs attention, but letting in underprepared students into demanding college programs is probably not a solution. --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 02:57:34 PM
[The Volokh Conspiracy] Terry Teachout,
whose arts writing I've always enjoyed in Commentary, has a quote about someone who tears pages out of the books he's reading to make them easier to carry around. Teachout could never do such a thing in a million years, nor does he highlight passages in books, "even though I approve in theory of underlining, and I love reading other people?s marginalia in used books and library copies." I, too, grew up believing (1) that owning books is good and noble and that you should own a lot if you're an educated person, and (2) that books are sacred and that you shouldn't deface them in any way. I've totally rejected both of these -- but not totally, since (1) it's still hard for me to get rid of my books, and I'm actively trying (I gave away over 100 books last year and hope to do the same this year), and (2) I don't make markings in my own books even though I believe that you should do whatever it takes to get more out of the book, because it's your appreciation of the contents of the book that's important, not the book itself. (On Teachout and the sacredness of books, see here.) As with Teachout, this last inhibition is in some "deeply buried layer of my psyche." I hope to overcome it someday; I'm trying. --Posted by Sasha Volokh to The Volokh Conspiracy at 1/21/2004 03:09:12 PM
[The Volokh Conspiracy] SAT scores:
Cathy Seipp properly criticizes an anti-SAT piece in the L.A. Times. I'm not an expert on the SAT, but to the best of my knowlege the Times op-ed has still more problems. Just for starters,Considering GPAs instead of SATs risks favoring students who go to schools where there's a great deal of grade inflation. Letting in the top 10% of each high school will let in students who are quite academically weak, but went to a high school where the other students are weaker. The result is not only bad for the intellectual quality of the college, but is also no service to the weaker students who will now find themselves at the bottom of the class, competing against others who are much more prepared for college. The SATs coupled with GPAs are actually quite good predictors of college performance, for all the criticism that the SAT has drawn, and to my knowledge are much better predictors than GPAs alone. That "white students score 206 points higher on average than nonwhites" on the SAT isn't a sign of bias in the SAT -- I am told that it actually slightly overpredicts college performance by black and Hispanic students -- but rather a sign of the unfortunate underpreparedness of many black and Hispanic high school graduates. This is a problem that needs attention, but letting in underprepared students into demanding college programs is probably not a solution. --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 02:57:34 PM
[The Volokh Conspiracy] Statistics and the SAT:
The the L.A. Times anti-SAT op-ed, which I criticize in the post below, has one especially noteworthy statistical claim: "[W]hite students score 206 points higher on average than nonwhites" on the SAT, "according to Psychology Today." To begin with, this seems to be a misquote of the Psychology Today article, which says "Whites outscore African Americans on average by 206 points." African Americans are fewer than half of nonwhites in America, and less than 40% of the nonwhites taking the SAT (note that the SAT statistics treat Hispanics as nonwhite). Second, it is whites and Asians who score much higher on average than blacks and, to a lesser extent, Hispanics. According to Time, Oct. 27, 2003, the racial breakdown of SAT averages was:Asians: 1083. Whites: 1063. Mexican-Americans: 905. Other Hispanics: 921. Blacks: 857.(I assume that this is the same data on which the Psychology Today account is based, since it also shows a 206-point gap between whites and blacks.) The Times quote is still correct as to blacks (rather than "nonwhites"), and it does make an important point. But don't the numbers have a somewhat different impact -- one much less compatible with the "evil whites oppressing nonwhites" subtext that one often hears in connection with the SAT -- when one sees that the gap is between Asians and whites on one side and blacks and Hispanics on the other, rather than between whites and nonwhites? --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 03:13:39 PM
[The Volokh Conspiracy] Terry Teachout,
whose arts writing I've always enjoyed in Commentary, has a quote about someone who tears pages out of the books he's reading to make them easier to carry around. Teachout could never do such a thing in a million years, nor does he highlight passages in books, "even though I approve in theory of underlining, and I love reading other people?s marginalia in used books and library copies." I, too, grew up believing (1) that owning books is good and noble and that you should own a lot if you're an educated person, and (2) that books are sacred and that you shouldn't deface them in any way. I've totally rejected both of these -- but not totally, since (1) it's still hard for me to get rid of my books, and I'm actively trying (I gave away over 100 books last year and hope to do the same this year), and (2) I don't make markings in my own books even though I believe that you should do whatever it takes to get more out of the book, because it's your appreciation of the contents of the book that's important, not the book itself. (On Teachout and the sacredness of books, see here.) As with Teachout, this last inhibition is in some "deeply buried layer of my psyche." I hope to overcome it someday; I'm trying. --Posted by Sasha Volokh to The Volokh Conspiracy at 1/21/2004 03:09:12 PM
[The Volokh Conspiracy] The Myth of the New Anti-Semitism
is the title of a thoughtful review essay in The Nation. I ultimately disagree with what I think is the author's crucial assertion, that Islamic anti-Semitism is the product of a political conflict, and will dissipate when that conflict is resolved. Rather, I think anti-Semitism in the Moslem and Arab world has taken on a life of its own, and will persist, perhaps less virulently but still dangerously, even if the Israel reaches a peace agreement with its relevant neighbors. Ironically, many of the early Zionists themselves were under the mistaken impression that anti-Semitism could be undermined by getting rid of its root causes--in their case, they internalized the prevalent leftist notion that the cause of anti-Semitism was Jews serving as exploitative middlemen in capitalist Gentile societies, rather than having their own Socialist state in which Jews would become a "normal nation." Irony abounds. --Posted by David Bernstein to The Volokh Conspiracy at 1/21/2004 03:55:37 PM
[The Volokh Conspiracy] The Myth of the New Anti-Semitism
is the title of a thoughtful review essay in The Nation. I ultimately disagree with what I think is the author's crucial assertion, that Islamic anti-Semitism is the product of a political conflict, and will dissipate when that conflict is resolved. Rather, I think anti-Semitism in the Moslem and Arab world has taken on a life of its own, and will persist, perhaps less virulently but still dangerously, even if the Israel reaches a peace agreement with its relevant neighbors. Ironically, many of the early Zionists themselves were under the mistaken impression that anti-Semitism could be undermined by getting rid of its purported root causes--in their case, they internalized the prevalent leftist notion that the cause of anti-Semitism was Jews serving as exploitative middlemen in capitalist Gentile societies, rather than having their own Socialist state in which Jews would become a "normal nation." Irony abounds. --Posted by David Bernstein to The Volokh Conspiracy at 1/21/2004 03:55:37 PM
[The Volokh Conspiracy] Likely First Amendment violation:
According to the Omaha World-Herald,A small group of Westside High School students plastered the school Monday with posters advocating that a white student from South Africa receive the "Distinguished African American Student Award" next year. The students' actions on Martin Luther King Jr. Day upset several students and have led administrators to discipline four students. The posters, placed on about 150 doors and lockers, included a picture of the junior student smiling and giving a thumbs up. The posters encouraged votes for him. The posters were removed by administrators because they were "inappropriate and insensitive," Westside spokeswoman Peggy Rupprecht said Tuesday. Rupprecht said the award always has been given to black students. . . . Rupprecht said disciplinary action was taken against the students involved but, citing student privacy policies, she declined to specify the penalties or what about the students' action led to them. Karen Richards said her son, Trevor, who was pictured on the posters, was suspended for two days for hanging the posters. Two of his friends also were disciplined for hanging the posters. A fourth student, she said, was punished for circulating a petition Tuesday morning in support of the boys. The petition criticized the practice of recognizing only black student achievement with the award. One of the school's students, Tylena Martin, said she was hurt by the posters and the backlash she said it caused. . . . Westside has fewer than 70 blacks out of 1,843 students this year. . . . [Karen] Richards said her family moved to Omaha from Johannesburg six years ago. Trevor, she said, "is as African as anyone."Under Tinker v. Des Moines Indep. Comm. School Dist. (1969), speech may be restricted if it's disruptive -- but not because it's "inappropriate and insensitive," something that many students no doubt thought about the anti-Vietnam-War black armbands that Tinker held to be protected speech. Of course, if a school has content-neutral rules prohibiting students from putting up posters on doors or lockers, the school may evenhandedly enforce this policy; the doors and lockers are its property, and it may bar students from using them as their own billboards. But if it's punishing students for the views that their posters are expressing -- for instance, if posters are generally allowed, either officially or de facto, but these were the only ones that were punished -- then that seems like a violation of the Tinker doctrine. Likewise for the school's punishing the student who circulated a petition "criticiz[ing] the practice of recognizing only black student achievement with the award." --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 04:25:47 PM
[The Volokh Conspiracy] Likely First Amendment violation:
According to the Omaha World-Herald,A small group of Westside High School students plastered the school Monday with posters advocating that a white student from South Africa receive the "Distinguished African American Student Award" next year. The students' actions on Martin Luther King Jr. Day upset several students and have led administrators to discipline four students. The posters, placed on about 150 doors and lockers, included a picture of the junior student smiling and giving a thumbs up. The posters encouraged votes for him. The posters were removed by administrators because they were "inappropriate and insensitive," Westside spokeswoman Peggy Rupprecht said Tuesday. Rupprecht said the award always has been given to black students. . . . Rupprecht said disciplinary action was taken against the students involved but, citing student privacy policies, she declined to specify the penalties or what about the students' action led to them. Karen Richards said her son, Trevor, who was pictured on the posters, was suspended for two days for hanging the posters. Two of his friends also were disciplined for hanging the posters. A fourth student, she said, was punished for circulating a petition Tuesday morning in support of the boys. The petition criticized the practice of recognizing only black student achievement with the award. One of the school's students, Tylena Martin, said she was hurt by the posters and the backlash she said it caused. . . . Westside has fewer than 70 blacks out of 1,843 students this year. . . . [Karen] Richards said her family moved to Omaha from Johannesburg six years ago. Trevor, she said, "is as African as anyone."Under Tinker v. Des Moines Indep. Comm. School Dist. (1969), speech may be restricted if it's disruptive -- but not because it's "inappropriate and insensitive," something that many students no doubt thought about the anti-Vietnam-War black armbands that Tinker held to be protected speech. Of course, if a school has content-neutral rules prohibiting students from putting up posters on doors or lockers, the school may evenhandedly enforce this policy; the doors and lockers are its property, and it may bar students from using them as their own billboards. But if it's punishing students for the views that their posters are expressing -- for instance, if posters are generally allowed, either officially or de facto, but these were the only ones that were punished -- then that seems like a violation of the Tinker doctrine. Likewise for the school's punishing the student who circulated a petition "criticiz[ing] the practice of recognizing only black student achievement with the award." Thanks to reader Barry Jacobs for the pointer. --Posted by Eugene Volokh to The Volokh Conspiracy at 1/21/2004 04:25:47 PM
