Tag: us supreme court

When it comes to the free-speech rights of teachers, the joke’s still on us

Posted on | by Sam

The good news is that Republican lawmakers in Arizona are now retreating from their recent proposal to require teachers to limit their speech to words that comply with FCC regulations on what can be said on TV or radio — a half-baked idea rightly characterized by one critic as the “most hilariously unconstitutional piece of legislation that I’ve seen in quite some time.”

The bad news is that, Arizona’s foolishness aside, when it comes to the free-speech rights of teachers, or any other public employee, the joke is on us.

The dark days began back in 2006, when a closely divided U.S. Supreme Court handed down a 5-4 ruling in the case Garcetti v. Ceballos. Up to that point, courts had always looked for two things when evaluating a public employee’s free-speech claims: first, whether the person was speaking out on a matter of public concern, and not just some personal grievance; and second, what the proper balance was between the individual’s right to free expression and the employer’s interest in ensuring an efficient, disruption-free workplace.
The legal precedent for this test stemmed from a 1968 Supreme Court case in which a public school teacher had been fired for writing a letter to his local paper in which he criticized budgetary decisions by the local school board. A lower court upheld the school’s decision to fire the teacher, but the highest court in the land reversed. Writing for the Court, Justice Thurgood Marshall was clear: “Absent proof of false statements knowingly or recklessly made by him, a teacher’s exercise of his right to speak on issues of public importance may not furnish the basis for his dismissal from public employment.”
Then came Garcetti in 2006, a case that began when an assistant district attorney from Los Angeles, Richard Ceballos, wrote a memorandum criticizing the failure of his office to dismiss a case that was marred by false testimony. Ceballos no doubt felt comfortable that his actions would be protected under the existing standard for public employee speech, and, sure enough, the Ninth Circuit Court of Appeals upheld his right to blow the whistle on his superiors. But five Justices of the U.S. Supreme Court disagreed, resulting in not just a dramatic turn of events for Richard Ceballos, but a new categorical exclusion for official, job-related employee speech.
As First Amendment Center scholar David Hudson explains, “The Garcetti decision caused a sea change in public-employee First Amendment jurisprudence, as many employees who speak out on important issues or blow the whistle on corruption no longer have a constitutional claim.”
Sure enough, since 2006 it has become increasingly difficult for public employees to speak out on matters of public concern that relate to their official duties. As Hudson explains, “After Garcetti, the importance of the information is not relevant. Many employees have spoken out on matters of public concern – even rank corruption in the workplace – but if the speech can be classified as official, job-duty speech they have no First Amendment protection.” Hudson says this new climate has led to a new term lawyers use to describe their clients who still seek First Amendment protection. Instead of getting justice, they get “Garcettized.”
So let’s enjoy a short laugh at the foolishness and the poorly-constructed effort of Arizona’s lawmakers to muzzle their state’s public school teachers. And then let’s remember that a more carefully constructed bill may not be as outlandish, and unlikely, as we think.
(This article also appeared in the Huffington Post.)

What Plato Would Think of School Choice

Posted on | by Sam | 3 Comments on What Plato Would Think of School Choice

“But how, exactly, will they be reared and educated by us? And does our considering this contribute anything to our goal of discerning that for the sake of which we are considering all these things – in what way justice and injustice come into being in a city.”

— Plato, The Republic

Heard the bass ride out like an ancient mating call, I can’t take it y’all, I can feel the city breathin’, Chest heavin’, against the flesh of the evening, Sigh before we die like the last train leaving.

—Black Star, Respiration

What characterizes the ideal city – and the cities in which we live? How accurately does the health of a city reflect the quality of its plan for educating its youngest citizens? And does the push towards greater school choice get us closer to, or farther from, that ideal?

I’ve been thinking about those questions a lot since reading a column by George Will in last weekend’s Washington Post. In it he references two U.S. Supreme Court opinions in which the Court affirmed the constitutional right of parents “to direct the … education of children under their control.” As a student of the 14th Amendment, I sought the opinions out. What struck me had less to do with the legal arguments, however, and more to do with an excerpt in one of the opinions from Plato’s Republic, arguably the most famous political work of all time, and a work squarely concerned with the role a city – and, by extension, its education system – must play in helping all people develop their fullest potential.

The Republic is about decay as much as it is about rebirth. Socrates is visiting Athens during a period of decline (Plato, it’s worth noting, is not exactly a fan of democracy). While there, Socrates falls into conversation with a number of other men, who then co-construct a vision of the ideal city, and, by extension, the ideal state of humanity.

If you’ve never read The Republic (I hadn’t until this week), you may be surprised by how radical the vision really is. To wit, the section in which he explains the structure of schooling is the one Justice James McReynolds chose to cite in his 1923 opinion for Meyer v. Nebraska:

“That the wives of our guardians are to be common, and their children are to be common, and no parent is to know his own child, nor any child his parent. … The proper officers will take the offspring of the good parents to the pen or fold, and there they will deposit them with certain nurses who dwell in a separate quarter; but the offspring of the inferior, or of the better when they chance to be deformed, will be put away in some mysterious, unknown place, as they should be.”

“The desire of the Legislature to foster a homogeneous people with American ideals prepared readily to understand current discussions of civic matters is easy to appreciate,” McReynolds wrote, referencing a 1919 law that had outlawed the teaching of any subject to any person in any language other than English. “But the means adopted, we think, exceed the limitations upon the power of the state and conflict with [the] rights” of both teachers and parents.

Fair enough. After all, such a law seems to be a clear case of legislative overreach. But excepting its own forms of overreach (raise your hands, for example, if you’re willing to give up your children at birth so they can be raised in a common pen, or if you believe America should be recast as a communist country), in what ways can The Republic help illuminate the core opportunities – and pitfalls – of the greater push towards school choice?

On one level, The Republic seems to suggest that the very notion of choice is what ultimately undoes a community. “Have we any greater evil for a city,” says Socrates, “than what splits it and makes it many instead of one? Or a greater good than what binds it together and makes it one?” Seen in this light, the increasing balkanization of public education is merely the latest vehicle for pitting the motivations and self-interests of individuals and families against each other.  Socrates seems to confirm this notion later, when he suggests that “in founding the city we are not looking for the exceptional happiness of any one group among us but, as far as possible, that of the city as a whole.”

OK, so choice bad, no choice good. Right?

Not so fast. Although Plato would clearly take issue with the individualistic nature of our modern society, and perhaps too with our decision to make public education even more heterogeneous than it was before, he also believes that the highest calling of each person is to be “a seeker and student of that study by which he might be able to learn and find out who will give him the capacity and the knowledge to distinguish the good and the bad life, and so everywhere and always to choose the better from among those that are possible. . . From all this he will be able to draw a conclusion and choose – in looking off toward the nature of the soul – between the worse and the better life, calling worse the one that leads it toward becoming more unjust, and better the one that leads it to becoming juster. He will let everything else go. For we have seen that this is the most important choice for him in life and death.”

When I look at the current landscape of school choice in DC (a landscape I’ll be exploring in great detail this year as I follow the fortunes of three area schools – district, charter and private), I wonder how we can learn from Plato’s caution and heed his advice. Will greater school choice be a means toward helping more children and families “choose between the worse and the better life,” while also furthering our capacity as a city to live “free from faction”? Is this even possible? Or is our shared fidelity to the twin pillars of democracy and capitalism such that a vision of greater equity and spiritual fulfillment is merely illusory, and as misleading as the shadows of the puppets that dance on the wall of Plato’s allegorical cave?

In part, Plato’s allegory is a way for Socrates to make another key point: “education is not what the professions of certain men assert it to be. They presumably assert that they put into the soul knowledge that isn’t in it, as though they were putting sight into blind eyes.”

Plato’s larger point here is that we delude ourselves into thinking we understand the nature of things, when in fact all we are doing is constructing a false sense of the world and calling it real (as theoretical physicist David Bohm once said, “Thought makes the world and then says, ‘I didn’t do it.’”). For those of us trying to improve schools, I think the analogy is also an appropriate condemnation of the current system of schooling we have – a system that was designed to meet the needs of the Industrial Age that was, not the Democratic Age that will be.

So, now that the school choice genie has been released from the bottle, I ask you: In what ways can it engender more schools capable of giving more people the skills and self-confidence they need to become active, visible contributors to the public good – a public good that, amidst the din of the ongoing battle between our intermixed democratic and capitalistic ideals, still seeks to fulfill our founding spirit of E Pluribus Unum – out of many, one?

Is a Free Education a Fundamental Right?

Posted on | by Sam | 10 Comments on Is a Free Education a Fundamental Right?

(This article originally appeared on cnn.com.)

Should your zip code determine your access to the American dream? Or is the U.S. Constitution’s guarantee to provide “equal protection” a principle we have silently agreed to uphold in theory – but not in practice?

I’m starting to wonder after reading about Tanya McDowell, the Connecticut mother facing felony charges for lying on her five-year-old son’s registration forms so he could attend a better school. McDowell’s story is painfully reminiscent of Kelley Williams-Bolar, the Ohio mother who made a similar choice earlier this year – and is now a convicted felon.

These two stories of civil disobedience come against the backdrop of an ongoing national conversation about our public school system – and how it must be improved. They also provide an unsettling irony in lieu of tomorrow’s 57th anniversary of Thurgood Marshall’s historic victory in Brown v. Board of Education, the 1954 U.S. Supreme Court decision that triumphantly reaffirmed a core American principle: “In the field of public education the doctrine of ‘separate but equal’ has no place.”

If Marshall were alive today, he would urge us to stop celebrating our symbolic victory in Brown, and start accepting our actual responsibility for tolerating a public education system that is, clearly, still separate, and still unequal.

Marshall said so himself, in a lesser known 1973 Court opinion, San Antonio v. Rodriguez. But this time he was not the lead lawyer, arguing the case, but the Court’s first African-American justice, issuing a ruling. And this time, he was on the losing side.

The case began when a group of poor Texas parents claimed that their state’s tolerance of the wide disparity in school resources – much of which were determined by the value of local property taxes – violated the Equal Protection Clause of the 14th Amendment. A state court agreed, but the U.S. Supreme Court, in a narrow 5-4 decision, reversed.

Gone from the Court’s 1973 ruling was its 1954 contention that “education is perhaps the most important function of state and local governments.” Gone, too, was its assertion that “it is doubtful any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity,” wrote a unanimous Court in Brown, “where the state has undertaken to provide it, is a right which must be made available to all on equal terms.”

Instead, the five-Justice majority in Rodriguez wrote simply that while the Texas school system “can fairly be described as chaotic and unjust . . . it does not follow that this system violates the Constitution.”

“Though education is one of the most important services performed by the state, it is not within the limited category of rights recognized by this Court as guaranteed by the Constitution.” If it were, the majority conceded, “virtually every State will not pass muster.”

For Justice Marshall, that was precisely the point. “The Court concludes that public education is not constitutionally guaranteed,” he wrote, even though “no other state function is so uniformly recognized as an essential element of our society’s well being.”

Marshall understood that without equal access to a high-quality public education, democracy doesn’t work. “Education directly affects the ability of a child to exercise his First Amendment rights,” he explained. “Education prepares individuals to be self-reliant and self-sufficient participants in society. Both facets of this observation are suggestive of the substantial relationship which education bears to guarantees of our Constitution.”

So here we are, nearly thirty years after Rodriguez – and nearly sixty after Brown – and yet parents like Tanya McDowell and Kelley Williams-Bolar feel compelled to break the law to ensure that their children receive a fair shot at the American dream. Meanwhile, income inequality has reached unprecedented levels, the nation has simultaneously grown more racially and ethnically diverse, and massive spending disparities remain between schools.

In today’s America, when it comes to public education, have we allowed our five-digit zip codes to become the equivalent of a lottery ticket to a better future? Is this really who we wish to be?

After so many years and so little real change, something new – perhaps even something drastic – needs to be done.

What if we took away the legal ambiguity that resulted in a 5-4 Supreme Court decision? What if we made the guarantee of an equal opportunity to learn our nation’s 28th Constitutional Amendment?

What do YOU think? Is a Free Education a Fundamental Right?

a)    NO. A public education is extremely important. It’s also not listed as a fundamental right anywhere in the U.S. Constitution. It may be imperfect, but the Supreme Court got it right in the Rodriguez case.

b)   YES. The 14th Amendment’s guarantee of “equal protection” under the laws is sufficient grounds for recognizing the unique value of a quality education. It’s time to reinterpret the Rodriguez case!

c)    NOT YET. Reinterpreting Rodriguez is not enough. It’s time to make equal access to a quality education an undeniable right. It’s time for the 28th Amendment to the U.S. Constitution!

What It Means to be Free

Posted on | by Sam | 1 Comment on What It Means to be Free

On a Saturday evening in March 1919, attorney Robert H. Jackson, age 27, attended a lecture at Jamestown (New York) City Hall.  The lecturer, a lawyer named Winter Russell, was a somewhat prominent American Socialist.  The lecture occurred in a period of global turmoil, devastation caused by the just-concluded Great War and, in the United States, ideological clashes, violence, law enforcement excesses and widespread unease.

Jackson, who had just completed a short term as Jamestown’s corporation counsel and was building a private law practice, attended Russell’s lecture by assignment.  Jamestown’s mayor had appointed Jackson and other lawyers to serve on a committee that evening to “censor” the lecture.  It was anticipated, at least by the mayor and other Jamestown leaders, that Russell’s speech might cause disruption and need to be shut down.

Russell delivered a scathing speech.  He attacked the U.S. government for its recent prosecutions of Socialist Party leaders Eugene V. Debs and Victor L. Berger for claimed crimes that really were, as Russell saw things, right principles and human ideals.  Russell criticized the federal judges who had sentenced Debs and Berger to prison.  But no censorship occurred—Jackson and his colleagues watched, listened and, at the end of the evening, returned to their homes.

Jackson stewed, then wrote.  On Monday, he delivered this letter to the mayor, who was his mentor and friend, and to the Jamestown newspapers:

Dear mayor:

According to the duty which you thrust upon me, I attended the Socialist meeting last Saturday night addressed by Winter Russell, and desire to report to you that so far as I observed, there was no infraction of the letter or the spirit of our laws, and I desire to take this opportunity to decline any further service upon committees of this character and to respectfully suggest that they be discontinued.

The speech at this meeting consisted of a bitter attack upon the government for prosecuting, and upon the courts for convicting Eugene V. Debs for his attacks upon President Wilson and his policy.  He [Mr. Russell] denounced it as an attack upon free speech and complained that Debs was serving a long term in jail, while Theodore Roosevelt had not been prosecuted tho he called the president’s policy “treasonable,” and other attacks by richer and more influential men had passed unnoticed.  He [Russell] concluded with the usual dreamy nonsense about the time when four hours shall constitute a working day.  He predicted that if the government continued its policy of imprisoning men like Debs and Berger, it would bring on a revolution.

I see nothing illegal in any of this.  That we have a right to criticize a conviction was pretty thoroly established when the whole North arose in indignation at the conviction of John Brown, and when Abraham Lincoln made bitter attacks upon the Supreme Court of the United States because of the Dred Scott decision.  I suppose there is nothing treasonable in dreaming about a four-hour day, that is merely moonshine.

I must admit that I never understood why men like Roosevelt and [Senator Henry Cabot] Lodge are immune from laws which condemned Debs and Berger.  Not that I believe Roosevelt and Lodge should be prosecuted, but I believe that a Socialist has as good a right to criticize a Democratic president as a Republican has.  In fact, Mr. Mayor, the whole speech was very moderate compared with those attacks upon the government which I have been reading at the hands of eminent senators and gentlemen.

It is useless for us to have a cold chill every time the Socialists have a meeting.  We have embarked upon a policy as a government of imprisoning people who oppose the government.  Many of our eminent and well meaning citizens are rubbing their hands and saying, “Now that we have Debs in jail and Berger convicted, Socialism will die out.”  So said the Czar when he saw his political enemies exiled to Siberia; so said Louis the Fourteenth before the French Revolution; so said the Sanhedrin when they thought to kill out Christianity by crucifying Christ; so said the priesthood when they thought to kill out the Reformation by inquisitions.

Indignation meetings are the natural result of conviction of men like Debs and Berger, one several times a candidate for president of the United States who polled 897,000 votes in 1912, the last time he ran, and the other elected by the people of his district to represent them in Congress.  I have read somewhat of history, and I just now fail to recall any government which has set about the suppression of unrest by putting popular citizens or class leaders in jail which has not stirred up a revolution, and I do not expect the United States to be any exception to a rule so universal.  The prosecution of Debs and Berger is a tragic blunder.  Sound law perhaps, but bad state policy, provoking class hatred and social unrest.

Mr. Mayor, I am opposed to Socialism and its insidious and vicious policy but I am equally opposed to those short-sighted people who expect to stamp it out by persecution.  I am opposed to spying upon and persecuting and prosecuting and searching the Socialists, for they thrive on it.  No doctrine of military necessity now requires suppressing opposition to the draft.  All that is past.  Appointing smelling committees to go to these meetings merely advertises the meeting.  I think half the joy that the Socialists found in the Winter Russell meeting was in the knowledge that they were being watched, which proved to them that they had finally got under somebody’s sensitive skin and after I had heard the speech, I confess I felt a little ridiculous and I looked at the other members and they looked as ridiculous as I felt.  Mr. Mayor, it is quite time that we quit letting these Socialists make fools of us.

Our forefathers were a canny crowd.  They knew that free speech and a free press constitute the greatest safety valve that can be devised.  They provided for it in this country, that is they thought they did, so that people who have grievances can meet and discuss them and solicit votes and carry on their opposition peaceably.  The inevitable result of suppressing public gatherings and free speech is private gatherings and covert acts of violence and then the mob and then revolution.  In every country which is now suffering from Bolshevism the government has for years tried stamping it out by suppressing free speech, exiling, and imprisoning labor leaders and radicals, preventing public gatherings, and in general adopting the very measures which seem to be getting some standing in respectable circles in the United States.  We cannot adopt one half so drastic a measure against the Socialists as Russia did nor one half so effective, yet Russia failed, as we shall fail if we attempt similar methods.  Bolshevism has gained the least ground in the countries allowing the greatest freedom of discussion and the most ground where most oppressed and penalized.

When Civilization is in convulsions, it seems to me not only petty but rather dangerous to be sitting on the safety valve.  I think that our assumption of the right to censor what shall be said in these workingmen’s meetings is like our conviction of their leaders in that it seems to add to the hatred and bitterness already existing between capital and labor, and that if we desire these two great forces to co-operate we should cease to do these things which provoke antagonism and arouse slumbering hatred.

Very respectfully yours,

Robert Jackson

Jackson, of course, went on to become one of the U.S. Supreme Court’s most stalwart defenders of free-speech rights. But in 1919, still a young man, he delivered this letter on March 17 — a fitting St. Patrick’s day celebration.

(I share this courtesy of John Barrett, a professor at St. John’s Law School, by way of my good friend — and ace attorney — Dave Bowker.)

Judicial Activism & the Yelp-ification of Voting?

Posted on | by Sam

As someone who never travels without his pocket U.S. Constitution, I loved that yesterday’s New York Times forced me to revisit the two sections that deal with Judicial and Executive power — Articles III and II, respectively.

The article about judicial power was a detailed analysis of the first five years of the U.S. Supreme Court under John Roberts’ leadership. (Spoiler alert: it was really conservative). What interests me more, though, is the ongoing tension between the lofty principles of our common law system (in which our law evolves over time, thanks to the wisdom and restraint of judges who interpret it) and the reality of how those principles get played out in real time (i.e., to the victor go the spoils, stare decisis — or the rule that judges aren’t supposed to go against prior precedent — be damned).

Now that the Court’s makeup favors a conservative bent, the left is up in arms and crying foul.  And yet this is exactly what happened a few generations ago, under the Earl Warren-led Court of the 1950s and 1960s. Indeed, under Warren’s leadership the left-leaning Court forged myriad new doctrines regarding civil rights and civil liberties and the very nature of the political system (Thank God!). And so, although I personally disagree with the direction this Court is taking us, I don’t see behavior that runs afoul of the Constitution. It’s an imperfect system, but you can’t only support judicial muscularity when it serves your own purposes. (On a related note, I have a new book coming out later this year on the First Amendment and how our understanding of it has evolved over time. Want to reserve an advance copy?)

Far more complicated was the recent New Yorker article about voting systems, and about how the U.S. lags behind other countries in its efforts to provide a fairer system. The antediluvian nature of our system will become even more pronounced when the stodgy old Brits, of all people, hold a May 2011 referendum on how Britain elects its leaders, likely resulting in an abandonment of the “first-past-the-post” system whereby whoever has the most votes wins. As the article points out, this sort of system only really makes sense if you always have two candidates. But anytime you have three or more, it’s a pretty lousy way to capture the true will of the people. And, not surprisingly, of democracies without any significant past era of British influence, only Nepal has chosen to elect its leaders this way.

As the article points out, the misbehavior of voting schemes in general has been known to social scientists since the mid-twentieth century. “That was when Kenneth Arrow, an economist at Stanford, examined a set of requirements that you’d think any reasonable voting system could satisfy, and proved that nothing can meet them all when there are more than two candidates. So designing elections is always a matter of choosing a lesser evil.”

So what should we do instead? Interestingly, one idea put forth is to rate our candidates the same way we rate restaurants or books online — by rating them across the range of a 4- or 5-point scale — and by using the 2000 election as an example of how it might work. “If a voter likes Nader best, and would rather have Gore than Bush, he or she can approve Nader and Gore but not Bush.” Both schemes give voters more options, and “would elect the candidate with the most over-all support, rather than the one preferred by the largest minority.”

I’m not saying I recommend this, but it’s an interesting idea, isn’t it? And just to provide some perspective, it’s not like changing how we vote in this country is a foreign concept. In fact, nearly one-fourth of our country’s total amendments to the Constitution (or 6 out of 27) have been about changing how we vote — and who can do it.

Which leads to a Monday trivia question — can you name the six voting-related amendments without looking? If you can (and we’re going strictly honor code here), I’ll send you a pocket Constitution of your very own. . .