WW 1: In the wake of the Maus controversy, we find ourselves engaged in a game of semantics: the book wasn’t “banned” but merely removed from the curriculum, says one side. A distinction without a difference, says the other side. The other side is wrong; there very much is a difference, from a legal standpoint.
In Island Trees School District in New York in late 70s, the school board decided that there were several books unfit for the tender eyes of high school and junior high school students. These 11 books, said the school board, were “anti-American, anti-Christian, anti-Sem[i]tic, and just plain filthy.” A committee of parents appointed to review and make recommendations on these books disagreed in part, deciding that only two 1Down These Mean Streets by Piri Thomas, a memoir about the Puerto Rican/Cuban author’s life and young adulthood in Spanish Harlem; and The Naked Ape, Desmond Morris ‘s work pontificating on man’s evolution from the ape, famous for pointing out that human males have the largest penis of all apes.should be completely removed from the library. There were five books that parents thought should remain available unrestricted, 2Bernard Malamud’s The Fixer about Menahem Mendel Beilis, a Jew unjustly accused by the Russians of murdering a 13 year old boy in 1911 (controversial both for its unflattering depiction of Beilis and because of allegations of plagiarism); Laughing Boy by Oliver La Farge, depicting the coming-of-age of a Navajo boy; Go Ask Alice, a supposed diary of an anonymous teenage drug addict, which has been widely determined to be a work of fiction by a therapist; Black Boy, Richard Wright’s largely autobiographical account of a Black boy’s youth and young adulthood in the early 1900’s American south; and Best Short Stories by Negro Writers, an anthology edited by Langston Hughes.; two on which they could not reach consensus,3Soul on Ice, Eldridge Cleaver’s collection of writings about his criminality, incarceration, and later association with Malcolm X and Marxism; and A Hero Ain’t Nothing but a Sandwich, a novel about a 13 year old heroin addict written by noted Black author Alice Childress; one that they did not review,4A Reader for Writers, targeted for removal because it contained Johnathan Swift’s A Modest Proposal and one they recommended be available only with parent approval.5Kurt Vonnegut’s Slaughterhouse-Five, controversial for its profanity and depictions of sex. The school board disregarded the parent committee’s recommendations, allowing only one book, Laughing Boy, to be returned to the library without restriction, and allowing Black Boy to be available only with parent permission. The remaining nine books were banned from the district’s school libraries.
In response, high school student Stephen Pico and several of his peers, through their guardians, filed suit in the US District Court for the Eastern District of New York, alleging the school board had violated their constitutional rights when they “ordered the removal of the books from school libraries and proscribed their use in the curriculum because particular passages in the books offended their social, political and moral tastes, and not because the books, taken as a whole, were lacking in educational value.” The school board won at the District Court, which awarded summary judgement to the school board, finding no First Amendment violation because “the board acted not on religious principles, but on its conservative educational philosophy, and on its belief that the nine books removed from the school library and curriculum were irrelevant, vulgar, immoral, and in bad taste, making them educationally unsuitable for the district’s junior and senior high school students.”
The students appealed. The Second Circuit reversed, with each of the three judges on the panel writing his own decision. The judgment of the court was that the school board’s actions were in violation of the First Amendment without a showing of a reasonable basis. According to the Circuit Court, the students at the very least should have been given an opportunity to show that the reasons given for the book bans were a pretext for impermissible suppression of speech. The school board appealed, and in 1982 SCOTUS weighed in on our case of the week, Island Trees School District v. Pico.
The Court noted at the outset that it had previously held that a state’s authority to control curricula and classroom is limited. The Court had struck down Arkansas’ attempt to prohibit the teaching of evolution, and Nebraska’s attempt to ban the teaching of foreign languages. But the Court pointed out that in this case, they didn’t need to get into whether the Court had the authority to meddle in state’s educational decisions, because these books were not text books, nor were they required reading at all. The case did not involve curriculum; it involved the availability of these books for those students who would choose to read them. The question was, does the First Amendment limit the ability of the school board to remove books from the library, and if so did the school board’s actions here exceed their discretion to do so?
The Court reiterated their belief that local school boards have the right to prescribe curriculum in a way that promotes “community values” or “traditional values”… but it may not do so in a way that violates the Constitution. Citing Tinker v. Des Moines, the Court repeated that students do not lose their First Amendment rights once they enter the school building. The Court also looked at West Virginia Board of Education v. Barnette, in which the Court held that schools could not force children to salute the flag in the name of “national unity” or “patriotism.” Even Griswold v Connecticut got a nod, as the Court noted that “the State may not, consistently with the spirit of the First Amendment, contract the spectrum of available knowledge.”
The right to receive information and ideas “is an inherent corollary of the rights of free speech,” wrote the Court in the plurality opinion by Justice Brennan. But he tempered this idea a bit:
Of course all First Amendment rights accorded to students must be construed “in light of the special characteristics of the school environment.” Tinker v. Des Moines School Dist., 393 U.S. at 393 U. S. 506. But the special characteristics of the school library make that environment especially appropriate for the recognition of the First Amendment rights of students.
And that is the crux of the Court’s reasoning; the library is not the curriculum:
Petitioners might well defend their claim of absolute discretion in matters of curriculum by reliance upon their duty to inculcate community values. But we think that petitioners’ reliance upon that duty is misplaced where, as here, they attempt to extend their claim of absolute discretion beyond the compulsory environment of the classroom, into the school library and the regime of voluntary inquiry that there holds sway.
The Court admitted that the school board had discretion over its libraries, but found that in exercising that discretion it could not do so in a way that amounted to the suppression of ideas. Motivation for the removal of the books mattered; if they were removed for being “pervasively vulgar”, the Court may have ruled in their favor. But there was little argument about the motivation for Island Trees’ actions here; evidence at the lower court, including affidavits from the school board members, was that the books were removed because of the ideas expressed, based on “personal values, morals, tastes and concepts of educational suitability.” Said one school board member: “I am basically a conservative in my general philosophy, and feel that the community I represent as a school board member shares that philosophy. . . . I feel that it is my duty to apply my conservative principles to the decision making process in which I am involved as a board member and I have done so with regard to . . . curriculum formation and content and other educational matters.” Publicly, the board had defended their decision to remove the books on that grounds that they were “anti-American. The Court sent the case back to the District Court, finding that summary judgment should not have been ordered in the school boards favor.
The ruling was 5-4. Chief Justice Burger wrote the dissent, joined by Justices Powell, Rehnquist, and O’Connor:
Stripped to its essentials, the issue comes down to two important propositions: first, whether local schools are to be administered by elected school boards or by federal judges and teenage pupils, and second, whether the values of morality, good taste, and relevance to education are valid reasons for school board decisions concerning the contents of a school library.
Burger took issue with the idea that a school board is required to deliver the messages (the books) of a third party (the authors) to students – which is how he interpreted the plurality’s view that the students’ right to receive information is the corollary to the author’s freedom of expression. Burger posited that if a school board is required to provide information in this way, why wouldn’t the government, writ large, be required to do the same to the general citizenry? There is no constitutional right to the existence of public libraries. But the school library is in existence and these books were on its shelves. Brennan’s opinion did not go so far as to require the affirmative duty to supply knowledge – in other words, no requirement that the school purchase certain books for the school library – but that it could not take it away based on a dislike of the ideas within the books.
Burger also points out a glaring irony in the plurality. The Court held that the voluntariness of the library system made it susceptible to constitutional protection in a way that the required reading of the curriculum is not. As Burger notes, “required reading and textbooks have a greater likelihood of imposing a “pall of orthodoxy'” over the educational process than do optional reading.” (emphasis in original.) But the plurality would give a school board more unfettered discretion to limit the scope of what students are required to read, an irony that is worth noting. One could suggest that this is precisely why a library full of diverse ideas is so important, to ensure that students are not subject to one and only one viewpoint.
Justice Rehnquist’s dissent denies any “right to receive knowledge” exists for junior and senior high school students. If it did, far more than the library would be implicated. Why wouldn’t that right extend to what courses are offered, what teachers are hired, what curriculum is used? And why is this right implicated only in the library?
This right is a curious entitlement. It exists only in the library of the school, and only if the idea previously has been acquired by the school in book form. It provides no protection against a school board’s decision not to acquire a particular book, even though that decision denies access to ideas as fully as removal of the book from the library, and it prohibits removal of previously acquired books only if the remover “dislike[s] the ideas contained in those books,” even though removal for any other reason also denies the students access to the books.
Further, Justice Rehnquist would hold that school boards can and should limit the ideas to which students are exposed:
As already mentioned, elementary and secondary schools are inculcative in nature. The libraries of such schools serve as supplements to this inculcative role. Unlike university or public libraries, elementary and secondary school libraries are not designed for freewheeling inquiry; they are tailored, as the public school curriculum is tailored, to the teaching of basic skills and ideas. Thus, JUSTICE BRENNAN cannot rely upon the nature of school libraries to escape the fact that the First Amendment right to receive information simply has no application to the one public institution which, by its very nature, is a place for the selective conveyance of ideas.
Admittedly, Justice Brennan’s opinion has some logical inconsistencies, as much as I agree with the basic premise of allowing even controversial works to remain accessible. It is true that the works in question contain much that I would not want a my 6th grade middle schooler to read (see the excerpts listed in the appendix to Justice Powell’s dissent for specifics.) But there is no way that older students, particularly at the high school level, would be shocked by the “vulgarity” or “profanity” contained within these works.
According to Brennan, though, the profanity and obscenity is not the issue; the plurality believed the students could make a case that it was the themes and ideas – “anti-American” and otherwise – that prompted the school board’s actions, and summary judgment was inappropriate. A finder of fact could have determined whether that was true, or whether the board was really just trying to keep graphic sex scenes and gratuitous use of the F word away from students.
Likewise, in the recent controversy about Maus, proponents of removing the book from the curriculum point to “rough” language and sketched nudity as inappropriate for 8th graders, while critics accuse the McMinn County School Board of trying to blunt and minimize the atrocities of the Holocaust for nefarious reasons unrelated to student welfare. In either event, the book was removed from the curriculum, not the school library, and would not have been found unconstitutional by the Court in Island Trees, based on the plurality’s analysis.
WW 2: A proposed new law in Missouri makes shooting someone presumptively reasonable, causing some opponents of the bill to call it the “Make Murder Legal” bill. Under the newly proposed law, law enforcement investigating a use of force crime must assume the act was committed in self-defense and may not make an arrest until they have probable cause to prove otherwise. While the way the bill is described makes it sound like a license to kill, all investigations by the police should begin with the premise that the defendant is innocent, in my opinion.
WW 3: Birth control is now available without a prescription in North Carolina, making it easier for those without easy access to a physician to obtain contraceptive pills and patches. The “morning after” pill will still require a prescription, however.
WW 4: With the announcement of Justice Breyer’s retirement comes speculation about who President Biden will nominate to replace him. Much of the discussion has centered around his stated intention to nominate a Black woman to the Court, prompting cries of unconstitutionality, racism and pandering rather than an attempt to hire the most qualified person (when everyone knows the right person is most likely a white man, based on history?) Here’s one list of possibilities who may be tapped to fill the role. (Personally, I nominate Judge Irene Berger, currently sitting on the US District Court for the Southern District of West Virginia, but I don’t count.)
WW 5: Virtual courtrooms have been a blessing and a curse, allowing people to attend their hearings from all sorts of places – and in all sorts of ways, not all of them entirely in keeping with courtroom decorum.
WW 6: After having his death sentence overturned three times, including once by the US Supreme Court, a Missouri man is set to be executed on May 3rd.
Awesome. Thank you for writing this.
WW4: Well, definitely not a black man, as per Biden.
The Island Trees case shows how much content and intent matters. Removing books can be entirely innocuous or malignant, depending on what content is being removed and why.
What’s enlightening about the recent flood of book removals is that the content is clearly identified (nonwhite and LGBTQ themes) and the intent is also made clear (restricting the ability of students to read themes the parents find objectionable).
Even if someone were to build a case that removing books because the parents object to their content is legal and allowable, it leaves the fact that large portions of American citizens want to restrict the ability to read nonwhite and LGBTQ themes.
Now Chip, don’t you know that we have equality in the US because the law says so? We don’t need to expose kids to these uncomfortable truths because they are Fake News (TM).
I will never understand the zealousness of death penalty proponents.
Maybe you just need to reframe it in your head first.
“I will never understand the zealousness of people who think the state should kill people.”
Nope, still can’t understand it.
Oh, you’ve hit the nail on the head for why I don’t support the Death Penalty.
But I sure do understand why the people who support it support it.
I try to incorporate some of the reasons why the people who support it support it in arguments for why they should either not support it (or merely support it less).
You do know that if you had led with this we’d be having a much different discussion?
I didn’t have the opportunity to lead. I responded to someone who proclaimed an inability to understand how someone could enthusiastically have a different opinion on a moral issue.
You presume he wants discussion.
Dangerous presumption with that one.
I *DO* want discussion.
What response do you think would be better for a “I don’t understand how people hold strong and enthusiastic opinions in opposition to mine” starting point?
Oh, so something like “Saul, you really should figure out why the people who support it support it”?
Instead of jumping straight to “you should reframe it”?
no, presume Saul gets the concept intellectually – which I am sure he does – but recoil’s from it morally, psychologically and emotionally (which I suspect he also does). Then go with your own reaction to the concept, not to Saul.
Hrm. Does this whole “don’t look at what he said, look at what he was likely to have meant substantively” thing scale beyond Saul?
It’s not that I don’t know the reasons; I’ve heard the vulgar and the philosophical. I still don’t understand it, in the sense that, no matter how hard I try, I can’t wrap my head around believing that the state should kill people.
Well, let’s put it on easy mode.
Eichmann.
Do you understand why some people would think it just that Israel kidnapped him from Argentina, put him on trial, and then hanged him in 1962?
I’m not asking that you agree. There are a lot of people who don’t!
I’m just asking whether you understand how *SOMEONE* might look at that and say “okay, yeah. That is something that I can wrap my head around.”
Eichmann had adequate counsel. Cameron Todd Willingham did not.
I do not understand the zealousness of death penalty proponents to kill the not necessarily guilty..
So it’s an issue with there not being enough qualified defense lawyers defending people up for the death penalty?
This seems to be a fixable problem (in theory).
They are all fixable problems, in theory. The paucity of quality public defenders, police misconduct, prosecutorial misconduct, racial bias in every part of the legal system, even class bias in every part of the system.
I am a Kantian about these things, but supposing for the sake of discussion that I’m in favor of executing war criminals and people who commit crimes against humanity (e.g., Eichmann), in theory, I’m still very wary of the possibility for fairness in the process when the victors are always the one doing the trials. I think we all agree that the things Eichmann did are evil at a level that’s difficult even to contemplate — people who experienced it first hand, and people who did not have been trying to contemplate it ever since, in many different ways (e.g., graphic novels that sometimes get banned) — but I don’t know how you set a criteria that only executes Eichmann and people who committed crimes on that level, without producing the sorts of contradictions I’m afraid of with trials that are run entirely by the victors, because I think we can all agree that victory does not equate to righteousness, even when the cause for which the victors fought was a righteous one (as it was in WWII). The reductio fails as soon as we get past Eichmann the individual, because who decides who is, and who isn’t, as bad as Eichmann? The victor, etc.
Well, I absolutely understand that point of view.
The whole “Yeah, in theory, I’m down. In practice, we end up with these yahoos in charge of applying the theory.”
It’s just that. at the same time, I wouldn’t have voted to convict Gary Plauché. While I understand how someone might decide to vote to convict, I don’t understand how someone might not understand voting to convict.
One could argue that Eichmann was equivalent to a foreign combatant.
Israel hunting him down is somewhat different than, say, arguing that a state should kill its own citizens.
We have plenty of Eichmann-level moral monster examples inside the U.S., probably don’t need to draw parallels between a state-execution of a citizen and, say, someone blowing Osama away.
That makes plenty of sense in 1944. It was 1962 and they bothered to have a trial.
Nazees are still being tried when they are found . . .
Um, yes. But we’re trying to explain how someone might support “believing that the state should kill people.”
And I’m using Eichmann as an easy example for how someone might believe that the state should kill people.
You really need to learn to write a lot more clearly – it would make conversing with you much easier. Because that exchange suggested that it was pointless to capture and much less try someone 20 years later.
So here’s an example form me to you:
I don’t believe the state should kill people unless engaging in a declared war.
I believe strongly in capturing them, trying them publicly (one of the many reasons I detest Gitmo), and then locking them away for the rest of their lives to rot if the charge warrants. Turning Eichmann into a pitiful old hobbled man for his crimes would have been excellent punishment and been a greater service of justice. Killing him was simple revenge.
I don’t believe the state should kill people unless
Cool.
Reframe it to what exactly?
The statistics are pretty clear that the death penalty serves no deterrent purpose for the crimes on which it is imposed. Which leaves state sanctioned revenge as its real motive.
You don’t understand, Philip. This is standard Jaybird-style mindless literalism, taking what native users of English easily understand either as a request for an explanation or an implied statement that they have thought the matter through and don’t see a convincing explanation, as a confession of the limits of their intellects or empathy. As if X were actually describing an inability to understand or imagine the point of view of Y.
Oh I get it – and I intend to keep calling him out for it every time I see it.
To be honest, I mostly see it as a variant of the old “I don’t understand how someone could be tempted by (insert sin here)!” trick in the churches of my youth.
“Sure, you don’t.”
This meta-analysis says that while cross-sectional studies find no effect, time-series studies do find an effect.
My (admittedly cursory) read of the literature is that it’s pretty widely acknowledged that the literature is mixed and that it’s hard to get a conclusive answer from the available data. Between sparing and unreliable use of the death penalty, long delays from murder to execution, and major endogeneity problems, I’m deeply skeptical that the statistics say anything clearly. Certainly on their own they don’t.
Interesting study. Metanalysis is an underutilized technique in a lot of disciplines. I also find it interesting that the authors had to pool studies from a bunch of countries in each category to create it. one wonders what their data would look like for just the US.
The effects of the death penalty on murder/violent crime rates is incredibly difficult to study in the U.S., in no small part because of geographical differences (not just between states, but even between jurisdictions), in death penalty policies, death penalty rates, and other factors that tend to increase or decrease crime. There is also, perhaps most importantly, differences in the certainty of apprehension.
If you look at the literature since 2008, you’ll find that, while it’s still frequently cited, the consensus is that Yang and Levin’s conclusion is wrong, but also that it’s complicated, and when you look at data outside the U.S., the picture gets much clearer (no deterrent effect).
My own opinion is that, even if there is a deterrent effect, this is a poor argument for the death penalty in any but a perfect legal system. In an imperfect one, where innocent people are executed (we know this for certain, now), “deterrent” is a pretty ghoulish utilitarian justification, in that it in effect, if not in explicit detail, argues that more lives will be saved than innocent people will be executed.
Which leaves state sanctioned revenge as its real motive.
This strikes me as a reason that is exceptionally (even painfully) easy to understand.
Hell, I even see how someone would enthusiastically support state sanctioned revenge.
Hey, some folks just need killing.
Of course, the state is absolutely horrible at making that determination, but revenge fantasies make for… interesting public policy (for certain values of ‘interesting’).
They believe that evil people who do evil things need to receive the ultimate punishment. It is really that simple.
totally agreed – they are still in the “Eye for an Eye” camp, which is amusing what with Christ’s Turn the other cheek ideas.
Death is the “ultimate punishment?” How unimaginative.
Gets the criminal to God’s feet faster, you see.
It’s not necessarily an eye for an eye. There are particular crimes that, if I were walking down the street and saw someone attempting, I’d consider it appropriate to risk killing him in order to stop him. Basically murder, rape, and treason. Nearly all capital punishment cases in this country’s history revolve around some aspect of those three. It’s different if it’s a person who has already committed those crimes. The state IMO should isolate him from society for the rest of their lives. But if a person by his original actions or repeated actions has demonstrated that he can’t be safely imprisoned without risk to fellow prisoners or guards, then the state has the responsibility to execute him.
I’d go further — they want to see someone punished for a crime. If it’s the wrong person, well, they probably were bad anyways or they wouldn’t have gotten looked at as a suspect in a crime that severe.
I’m not kidding. I’ve frequently heard exactly that response to the prospect of innocent people getting executed (since, you know, some people have been exonerated) and was literally told “They might be innocent of THAT crime, but they didn’t end up there without being guilty of lots of other things worth killing them” and telling me I was a fool to think otherwise.
I mean my primary thought was “So you’re good with the real killer going loose, as long as someone dies for the crime?”.
They wanted vengeance, not justice. To see someone die to “put the fear in others” — but mostly to reassure themselves that they were safe.
Strange overlap with the hardcore CC folks — white, suburban people whose biggest danger in life is someone backing into their pristine F-150 at a Costco.
I think the more interesting overlap would be those having revenge fantasies and those who never think a cop should be held to account for killing someone in the line of duty.
In my experience, they also think anyone a cop kills did, in fact, have it coming and are the first to comb through that person’s life to find a reason the cop was “justified”.
Because they cannot fathom Officer Friendly (who lets their white, suburban butts off with a warning) killing anyone for, say, selling loosies. So OBVIOUSLY there was another reason.
Which is why, for instance, I’ll see them justify cops shooting people based on information the cops didn’t have at the time, but was dredged up later as defense.
Like the cops have a “spent 6 months in jail for X ten years ago” sense for people, that apparently mostly works on those with dark skin tones.
And they defend that position with extreme rigor, because to do otherwise implies very uncomfortable things they don’t want to face — I’m not even talking racism, we’re talking core things like “Maybe law and order isn’t as cut and dried as I thought. Maybe bad things happen to good people. Maybe the police aren’t paragons of virtue, maybe innocent people DO go to jail, maybe I’m in danger….”
It’s pure denialism — it’s a denial of the reality of an America they don’t want to think exists (rather preferring the idealized one in their heads) and an absolute denial of the chaotic and capricious reality of life.
The same guy that thinks his two CC weapons (so he’s not caught reloading) will protect him (because he’s the good guy, and they always win) from the nefarious thugs also believes the cops would never arrest an innocent person (he’s innocent after all, and if cops arrested innocent people and they went to jail that might be him!) so therefore anyone they arrest and get charged was guilty of SOMETHING so it’s just karma (because he’s not guilty of anything important, right?)….
Probably tied in with moral development milestones, honestly. Some people really never go past “Immoral == against the law and vice versa” and never think further on it. Add that into a very naïve few of policing, justice, and the mythos of “fair America” and you absolutely get people who think if you got arrested, charged, and convicted — even if you were innocent of that crime you must have done SOMETHING wrong and got away with it, so you’re paying for it now.
There can never be innocent people in jail, because you being in jail is proof you weren’t innocent. And if somehow that’s shown to be false, you were guilty of SOMETHING or you’d have never been fingered for a crime you didn’t commit.
Good people have nothing to fear, right?
Not sure how many people remember but there was a case back in the 90s where the EPA mobilized their police powers to swoop down on some farmer in Central California for violations of the Clean Water Act. They arrested his tractor and seized some other stuff as part of the action.
Now a question for the class- without Googling, can you guess which side Rush Limbaugh and the conservative media took in this arrest and what their attitudes towards the police were?
Guessing (without looking anything up), that the police were jackbooted thugs screwing with an individual’s right to earn a living. But farming is an honorable way to earn a living. Selling single cigarettes in the heart of the big city is not.
Anywhere close?
Wait, was this Tom Selleck and his avocado farm?
“Jack booted thugs” was in fact his exact phrase.
If you want to see a fun argument over the selling of loosies from a couple years ago, you can do so here.
(You may be shocked to see who takes the position that we need the cops to protect property rights!)
I’m not at all shocked that everyone yes literally everyone thinks we need cops to protect property rights.
…You need to catch up with what’s been going on in San Francisco.
https://sfist.com/2022/01/03/stats-show-sf-property-crime-down-11-2-below-pre-pandemic-levels-despite-moral-panic/
I love the contortions they go through when a cop kills an innocent kid with a stray bullet. It’s either a deep dive on how terrible the family/neighborhood is, or it’s just a terrible tragedy and they are certain the officer feels horrible (but no, the officer shouldn’t be tried, he feels bad enough, they just know it).
WW1: The law has very little purchase here. Obviously, no library has to stock every book potentially relevant to its community of borrowers or keep every book once acquired, no matter how infrequently used. Many books are, for all practical purposes, fungible. Of the many biology textbooks out there, which do you assign? Normally, selecting a biology textbook is a good faith, reasonably well-informed professional judgment.
Except when it isn’t. Selecting a biology textbook that omits evolution or pushes creationism or intelligent design is not, and, in the public schools, it is illegal for specific reasons having to do with the establishment of religion, not general free expression. But no law prevents state and local school boards from refusing to approve biology texts that said too much too correctly about evolution. And this had consequences not only in the hookworm belt, but elsewhere. Because of the need to appease the statewide textbook selection committee in Texas, and similar bodies elsewhere, publishers of biology textbooks used nation-wide soft-peddled evolution through my own high school years and beyond.
But when the establishment clause is not at stake, the law has next to nothing to say about curriculum. If school authorities decided to teach phlogiston chemistry, not as history of chemistry, but as chemistry itself, a lawsuit would be futile. (The fossil fuel and petrochemical industries might raise holy hell, and rightly so, but that’s another issue.) History can freely be, and is, mangled however the educational authorities wish. I grew up in a region that was a hotbed of abolitionism, the last progressive impulse that ever flourished in the region. Even there, I was spoon-fed the Dunning/Phillips/Gone With The Wind view of the antebellum-civil war-reconstruction era as fact, not as the fading and largely discredited scholarly viewpoint it then was.
Some 20-odd years ago, I successfully defended our state’s education department in a lawsuit claiming that the contributions of black people to world history were systematically ignored. Although it cited much dodgy scholarship, their general point was, as a factual matter, largely correct. I can attest that in my K-12 years, the name of a Negro — as the well-bred among us called them in those days — literally never passed the lips of my history teachers. I first heard of Frederick Douglass in college. Martin Luther King, Jr., wasn’t history in my day, he was a much-reviled contemporary never spoken of except, perhaps, in current events. But whatever my general sympathies, the issue in such lawsuits is not what is true but who decides. And on that the law is clear and I had an easy victory.
Even where the law might provide some remedy for actions that are not good-faith professional determinations, it is easy to tell the right lies and get away with it. What is surprising, is how rarely anyone even bothers to tell the right lies.
Try this hypothetical on for size. A high school English class has room for two Shakespeare plays. Shakespeare wrote 30-some, depending on how you count. Nobody would suspect that replacing Julius Caesar with Coriolanus was anything other than a good-faith educational decision, even though Julius Caesar is more popular, more often produced, more “full of quotations,” and more likely to appeal to 16-year-olds than Coriolanus. But say that the two plays in the curriculum are Taming of the Shrew and Merchant of Venice, and half your students are girls and many Jews.. They or their parents are upset. Have they the right to compel the school to substitute Shakespeare plays of comparable merit to avoid offense? Probably not. Was this a good faith educational decision? Maybe, maybe not. One could argue that those plays were picked precisely to confront the issues of misogyny and anti-semitism the plays present. This might makes sense as a seminar, but for a general introduction to Shakespeare for high schoolers probably taught by-the-numbers rather than as an analysis of problems, unlikely. Maybe they were picked precisely to piss the girls and the Jews off. Still, both sides seem to be coming from a place of legitimate educational concerns, not censorious ass-hattery.
Most of the time, however, they are not, and we can usually tell. But even then, the law has little to say about it.
WWI: I pointed this out on the original Maus thread but the American public educaiton system is the most decentralized in the developed world or even in the world for a variety of reasons. In the past this meant that my suburban high school could have seniors read Narcissus and Goldmund by Hermann Hesse in literature class while in a more conservative leaning area, the reading list could be more tailored to the morals of the more religious and Protestant community.
This was at least supposed to keep the public peace in practice. Every community could have its own folkways blissfully unaware of what different communities in the same country did. This never really worked out that well. The more conservative and Protestant communities were always aware at what happened in more diverse, liberal, and less religious areas and they didn’t like it one bit. They would get my school to drop Hermann Hesse and DH Lawrence if they could. Now more liberal areas are not so willing to tolerate what is going on in more conservative districts either. They see it as imposing wrong values on kids. The problem is that neither side has the political power to impose itself on the other totally.
*Now* the progressives are? The conservatives did it first? Right, just the other day we were discussing this in school after prayers…
There will be prayer in school as long as there is algebra. Government prayer is another matter.
Wait, aren’t you the guy who objected a while back to Jews having a problem with Christian religious songs at public functions?
Got to witness my local school board (in Texas) ALMOST become the latest to get slapped down by the Courts over teaching evolution back in the 90s. That was just the most obvious thing they wanted to do, btw. They were all over the English and Social Studies curriculum. Their attack on math was primarily “Memorizing times tables is all you need/What was good for me in 1950 is perfect now”.
One vote between hard-core YEC creationists who wanted to cull the biology textbooks and replace them with heavily religious texts, implement a mandatory “religious studies” class that was literally Sunday School from their church, etc.
I’m not talking walk a fine line. I mean stuff the ACLU could have probably just filed a brief that was solely Really?” and won.
Not one of them had kids in the district. They all had kids in a private religious school miles away. One didn’t HAVE kids, but was darn active in church. All of this organized and bankrolled by the evangelical, fundamentalist church that was actually in another school district — where they’d previously failed.
The fight over that last seat was ugly — I mean legit mass mailers accusing the (non-fundamentalist but quite religious incumbent) of wanting to teach little kids to masturbate, weird screeds about Hillary Clinton (this was the 90s) and murder lists.
FWIW, i’m pretty sure it was those mass mailers that jazzed turnout for that election so high the fundamentalist block lost all but one seat, and that one quit about two months later.
These days? A facebook campaign using the exact same tactics likely would have won. After all, people like my parents (who rarely voted in those elections) wouldn’t have seen the smears as the algorithm would have sent those to more fertile ground — and thus wouldn’t have been so motivated to vote out of sheer irritation at this crap.
Elected school boards are a dumb idea for all the reasons outlined above. Public schools should be run by the civil service.
You get a handful of types on your school board.
1. Activists with an ax to grind. In Texas, at least, they tend to be heavily religious conservatives who are perpetually angry.
2. Retired educators/administrators who want to remain involved in something they dedicated their lives to and have expertise in.
3. Parents of children. Often very….micro-managing sorts.
And of course, people who realize hardly anyone votes in school board elections AND it’s probably the most powerful local elected position you can get. Note that 2/3rds there, best case, have literally no idea what goes into education or how to make it work.
Which is why the most powerful man on Texas’ STATE school board is, last I checked, a creationist dentist from a hick town (i’ve been there. It’s accurate) who really wants Texas to lose another visible education case over law that’s been settled for 50 years.
Since he can’t manage to swing that, he mostly shoots for dumbing down curriculum, spewing stupidity, arranging for sub-par textbooks with HEAVY bias, and generally sabotaging kids as best he can to save their souls.
“In either event, the book was removed from the curriculum, not the school library, and would not have been found unconstitutional by the Court in Island Trees, based on the plurality’s analysis.”
Just to be clear, where do you see that the book remains available in the library? I read through the minutes and it just kept saying “removal” or “complete removal”.
I have not read anywhere that it was removed from the library. Not sure I can prove a negative but the school board’s discussions were in the context of replacing the book in the 8th grade curriculum.
I went back through the minutes and the library is unmentioned. They at different points refer to removing it from the curriculum, removing it from the reading series, and removing it from the classroom. You’ve researched all this far more than I so if it is indeed available in the library… if it is a book the teacher could recommend or accept an independent reading assignment on or discuss with the students or share an excerpt from that doesn’t include the “offending language,” I would walk back calling this a ‘banned book.’
None of the reporting on this particular story (or any of the recent “school board votes to remove X”) covers the particulars IME.
Removing a book from the mandatory curriculum might not mean anything if it is still part of the optional curriculum. Side note: mandatory books in a curriculum are usually bad, standards are fine and recommended books that meet the standard are also fine but teachers should always have the flexibility to meet a standard with a book they find.
The question about book bans is always “Did a governance board exercise discretionary authority to remove a book from student access” and it’s almost never answered in the reporting.
If the book is actively removed from the library and/or teachers can’t teach it if they want to, that’s when it’s banned.
WW2: This is basically an extension of the affirmative defense, is it not? Or is this meant to apply to any killing, whether or not the perpetrator surrenders to the police and admits to the deed?
It applies to any investigation of use of force or threatened use of force, without the alleged perpetrator first having to raise the claim. Their actions are presumed reasonable.
That’s starting to feel like a gimmie to a certain demographic (mostly police and the L&O types who are inclined to shoot first). While I agree with you that persons should be presumed innocent until proven guilty, this feels more like a way to avoid a citizen of MO from being on the wrong end of the next Ahmed Aubery incident, or a DA getting dragged for declining to prosecute such a case.
IIRC requiring probable cause for belief that a use of force was unjustified in order to make an arrest is a fairly standard element of stand-your-ground laws, and I’m surprised that Missouri didn’t already have such a provision.
The bill is SB666, which I’m sure some people here will enjoy; the text is here:
https://www.billtrack50.com/billdetail/1404288
WW2:
Presuming the innocence of all parties is different than presuming a killing to be lawful.
In any killing, the police shouldn’t be presuming anything about the killing.
It isn’t always obvious if a killing is accidental or deliberate, justified or not, aggravated or mitigated.
Demanding that the police make a presumptive declaration that a killing is justified pretty much makes them play the role of coroner, prosecutor and jury.
It’s not presuming innocence, it’s presuming reasonableness. So McMichael killing Aubery is presumed to be reasonable unless / until evidence arises to damage that presumption. This depends a lot on the police choosing to fully investigate to find such evidence, and DA choosing to present such evidence.
Right, it allows them to use discretion which plays into existing bias.
For WW2, I wondered where Missouri was when it came to murder stats.
Here’s something from December. According to it, Missouri is in 2nd place for the “Murders per 100,000” stat according to the 2020 FBI numbers (but in the middle of the pack for absolute numbers).
I didn’t dig into the demographics of the murders.
WW4: “Much of the discussion has centered around his stated intention to nominate a Black woman to the Court, prompting cries of unconstitutionality, racism and pandering rather than an attempt to hire the most qualified person…”
Wait, I thought it was venomous to suggest that a Black female justice would have her qualifications questioned…?
She may be the most qualified person or at least sufficiently qualified for the Court. When we find out who she is, we’ll be able to decide. For the time being, Biden has said that he’s not looking for the most qualified person. It’s fair to call Biden out for it.
“For the time being, Biden has said that he’s not looking for the most qualified person.”
When did he say that?
When he said he was limiting himself to only black females candidates.
Criticisms assume a truth that there is some peak best candidate that may not be included in the set of black females, which might be valid if A) we had some stellar track record of selecting ‘best’ candidates for SCOTUS (rather than candidates who could do the job competently and get confirmed), and B) we could then show that said candidate is not among the desired set.
In short, there is no peak candidate. There is a set of competent candidates. We have 9 judges specifically to avoid having to trust to a peak best candidate.
What does it even mean to be “the most qualified person” to serve on the Supreme Court? There are probably about 10,000 lawyers who could serve honorably and not embarrass themselves. I’m one of them and I wouldn’t appoint me. About 20 percent of them have the kind of visible credentials and experience that make them very strong candidates, and the differences among them are largely arbitrary. Anyone who thinks Sri Srinivasin, for example, an excellent candidate by any measure and quite possibly Biden’s next pick if he gets one (precisely because he is Asian-American), is in some objective sense “better” than Ketanji Brown Jackson or Leondra Kruger is just spitballing. Once you’re fishing in that pool, ordinary political considerations of the type indulged by every President ever are perfectly legitimate, and all the pearl clutching over Biden saying openly, as many other Presidents — like Donald Trump and Ronald Reagan — have, that he plans to appoint a [fill in the blank] is just that. The fainting couch is over there.
The fact that the Constitution places the nomination in the hands of the President and subject to approval of the Senate indicates it was never intended to be anything other than a mechanism by which the President’s policy is advanced.
Also am I the only person who thinks its weird that the Conventional Wisdom is that just anybody can be President- a game show host, for instance- and just by dint of their Outsider homespun commonsense wisdom can effectively command the most powerful nation on Earth.
But a Supreme Court Judge needs to have a black belt in the mysterious priestly knowledge of law.
Double standards and hypocrisy abound here sir. Especially the one that says picking a black woman isn’t about finding the most qualified candidate.
If you go to a used car lot looking for a red car with the best gas mileage, you’re not necessarily going to get the car with the best gas mileage.
Perhaps, but a lot depends on the margins and other factors. If you find a red car on the lot that gets 50 mpg, but there is a blue car on another lot that gets 52 mpg, is it necessarily worth it for that difference of 2 mpg. What if the other lot offers higher interest rates, or has higher prices, or a reputation for terrible customer service?
As Kazzy quoted from the original article, “…rather than an attempt to hire the most qualified person”. You and I agree that he’s not looking for the most qualified candidate. I’ve also said that there may be a set of candidates at least sufficiently qualified for the Court (even though you said that no one’s said that).
The question at this point isn’t whether she’s qualified, because we don’t know who she is.
In terms of decisions, who he nominates isn’t going to matter much, at least for the near to medium future. In terms of issues of race, sex, and hiring, it’s a bad thing, and looks like it’s getting more blowback than I would have expected.
Actually, what I’m saying is that “most qualified” is a false criteria, or rather, it’s a highly subjective criteria. It’s not like MPG, in that it’s not something you can describe with numbers or facts. It’s closer to color, in that certain colors may be more popular, but any kind of evaluation of the ‘best’ color is going to be highly subjective.
Were Kavanaugh or Barrett the most qualified candidates out of all the potential candidates who could be considered competent for the job?
No, not by a long shot.
But they were on the list Trump was given by partisan interests Trump found acceptable, which means Trump was working for a reduced set and was unlikely to nominate the ‘best’ candidate.
The question at this point isn’t whether she’s qualified, because we don’t know who she is.
Do you always refer to yourself in the second person? Lots of people — “we” — know the list and know a lot about the people on it.