The Supreme Court in Meredith v Jefferson County Board of Education

The Supreme Court after Brown v Board of Education

I see your Moloch...and raise you a Jesus. My response to the Family Foundation's celebration of the Louisville school desegregation decision

Yesterday, Martin Cothran of the Family Foundation wrote a brief celebration on the Supreme Court decision in Meredith on his blog vere loqui. It is a ruling that has many historical overtones that must be understood. Since the issue hit me in my wheelhouse, I thought a response might be in order.

Cothran implies that those who think diversity is a good thing...(actually he says it better than that)...He says those who "sacrificed children to the idols of egalitarianism and diversity" are the modern descendants of the Canaanite god, Moloch.

Well, this sounds really bad. I believe there is strength in diversity, so I wonder... Have I just been offended?

I don't actually know. I'll have to look up Moloch first...to find out if he was particularly nasty or something. But if I've been sacrificing little children to some Canaanite god and didn't even know it...I'm gonna be hacked off.

Martin is correct to point out that school districts will find other means to promote diversity.

Today I reveal the social liberal's Double-secret Plan B.

~
Dear Martin,

Access to quality education – who gets taught, and the quality of that teaching – is the central issue in the history of education in America.

Our Constitution said that all men were created equal. But in America’s earliest days, with few exceptions, it was the sons of white male landowners who received instruction. Why is that?

Racism? Well, yes…slavery was America’s original sin - but also economics.

Poor children were not thought to be worth the effort. After all, how much schooling is necessary to work a plow? An adequate education in the 19th century didn’t have to meet a high standard – just the 3 R’s (at about a 3rd grade level) would do. This - while children of means learned the classics. Millions of poor white and black children were denied equal opportunities. It was about class and economics – one’s station in life.

As a youngster in all-white Ludlow, Kentucky, I knew what it meant to have low expectations. I believe I was one of two Ludlow graduates in 1969 that went right on to college. That was not the story at the upscale Beechwood School. As bad as it could be for poor white children, being black was an additional burden. Why is that?

Neither group found it easy to get to a high quality school. It was doubly tough in Appalachia.

But, future economic success demands a competitive workforce. That means a 21st century education for all Kentucky children – something I suspect you fully support.

So we have to get the kids to school.

Every day school folks put millions of kids (who can’t drive themselves) on buses. We bus them...all over the place. We bus them from wherever they live. Big yellow busses. Flashing lights but no seat belts. And the wheels on the bus go ‘round.

It would have been nice if we never had to bus kids for reasons of racial desegregation. The best solution is always the presence of a high quality school in every neighborhood. But it didn’t work out that way. Why is that?

I assume nobody is arguing in favor of a return to the separate and very unequal days of Plessy v Ferguson. But when the Supreme Court ruled in Brown v Board of Education I, in 1954, that separate schools for African-American children were unconstitutional the Court was largely ignored. The following year the Court in Brown II ordered schools to begin desegregating. But they didn’t. Instead over 100 southern legislators decried the Court’s “intrusion,” asserted local control, and signed the Southern Manifesto vowing to obstruct where they could.

It was not until the Civil Rights Act of 1964, and the decision in Green v. County Board of Education in 1968 that school districts made any real attempt to comply with the court’s 1954 ruling, and then only under threat of losing federal funds. In the 1963-64 school year barely 1% of black children attended school with white children. By 1972 that percentage had grown to better than 75%.

Social engineering? You bet. Let’s say it together. Social engineering.

It would have been better if the Court had never had to intervene. But I think one can argue that the Court in Brown upheld unpopular principles of the Constitution on Christian moral grounds. As I read the Bible, I have trouble finding any place where Jesus did not gravitate toward the poorest, lowest class, downtrodden, sick, or otherwise despised individual and lift them up. Correct me if I’m wrong. Should we not do likewise?

Of course, the present Court’s ruling was predictable – signaled during oral arguments last March. There is even a rational legal basis for the decision. It is notable that civil rights advocates who argued the need for federal protection in Brown, were now arguing for local control in the Louisville case, Meredith. Legally, what else did they have to argue? It is fairly well understood that today’s residual racial segregation is the result of housing patterns in our cities – not the result of any intentional efforts by school districts to keep the races apart. This under lays Chief Justice Robert’s snappy retort.

So what now?

Is the Court inviting local school districts to return to the days of Jim Crow? Of course not.

I suspect what you will see now is a shift toward economics as a basis for future busing schemes. Since African Americans are overrepresented among the poor, the real impact of the Court’s decision may be limited in some places. In other places, probably in most places, it will result in a racial resegregation. The extent to which communities have built diverse neighborhoods will determine the extent of the impact.

Is this social engineering? You bet. Social engineering and busing. Different ideology, perhaps. Different set of kids maybe. Same buses.

What you won’t see: school districts ignoring the Court.

The solution today is the same as in the beginning. We must have high quality schools in every neighborhood, but the requirements of an adequate education today are much more substantial than in the past. If the citizens of Kentucky will support this effort we will all be better off and the courts won't have to do anything. Actually, our children will all be better off. We need a gainfully employed citizenry – with more employer supported healthcare and a much lower Medicare burden on the state budget. We need to care for the poor – not by giving them a handout, but by giving their children an opportunity to do better.

What would Jesus do?

With respect,

Richard

Harvard Professor Mica Pollock: Q & A on the Supreme Court’s Diversity Decision

In a 5-4 decision, the United States Supreme Court today ruled against Seattle and Kentucky school-choice programs that considered race in the assignment of children to public schools. Associate Professor Mica Pollock, whose research — including the award-winning book Colormute: Race Talk Dilemmas in an American School — focuses on the role of race in educational settings, discusses the decision.

Q. How will the Supreme Court ruling affect schools that want to maintain racial diversity?

A. As Justice Stevens suggested, districts are now going to be waiting in fear to be sued for even voluntary attempts to create or maintain racial diversity in school enrollment. It’s a sad day in America when people fear they will be sued for attempts to create diverse and equitable schools.
This ruling could prompt more complex efforts at diversifying school populations. The danger is that districts will hear this ruling as a mandate to mute any analysis or discussion of race when planning student enrollment or school programs. But districts don’t have to be colormute – they don’t have to stop their conversations about race and opportunity, and about student body diversity. I hope districts refuse colormuteness, and keep talking about how to attract diverse populations to their schools and educational programs.

School-level educators also need to keep talking about racially equal opportunity inside their schools and classrooms. No one in the field of education should take this opinion as a mandate to stop talking about race and opportunity, or the need for diversity. We can’t afford that as a nation.

Q. Are you fearful that this ruling will result in increased school segregation or will districts find a way around the ruling?

A. I’m certain that the ruling will result in increased school segregation, as districts abandon voluntary desegregation plans out of fear. I imagine that people interpreting this opinion in more detail will keep debating whether it leaves open the potential to consider race as one of many factors in school admissions; I know people will keep debating how to use various other methods to pursue a racially diverse student body in a school.

Q. Do you see this ruling as part of a trend? Or is it an anomaly?

A. This caps off a legal trend of the past several decades, in which judges and courts have repeatedly limited efforts to diversify schools and to equalize opportunities to learn for students of color. Brown’s original intent was to outlaw race-conscious efforts to deny students of color opportunity. It outlawed race-conscious efforts to create segregated schools. Today, the majority argued that race-conscious efforts to help provide students of color opportunity, or to create diverse schools, are discriminatory. As Justice Stevens argued, the majority distorted the logic of Brown vs. Board.

Q. What are the benefits of having a diverse classroom? Why should this even matter?

A. Diverse classrooms, of course, need to be equitable classrooms. When opportunities are distributed equally and sufficiently within diverse schools and classrooms, they seem to be the nation’s ideal learning environments. Students in such classrooms get exposed to a greater diversity of human experience, and this enhances the learning experience for all.

The plaintiffs’ lawyer, who argued that all the nation’s schools are now “equal,” is grossly uninformed. Schools dominated by students of color typically are less well resourced than predominantly white schools. Given the intertwining of race and class in the United States, they also tend to be pockets of student poverty, which depresses student performance. The students of color in today’s segregated schools are equally intelligent to the nation’s white students, but typically they do not have equal opportunities to learn or succeed educationally.

This from Harvard Graduate School of Education.

Bong Hits 4 Jesus: Debriefing

Yesterday, the U S Supreme Court crafted a narrow ruling in the "Bong Hits 4 Jesus" case, Morse v Fredrick, that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity when that speech may promote the use of illegal substances. Today, the lawyers are analyzing what that means with respect to free speech.

Here's what happened:

As the Olympic torch was carried through the streets of Juneau on its way to the 2002 winter games in Salt Lake City, students were allowed to leave the school grounds to watch. The school band and cheerleaders performed. With television cameras focused on the scene, student Joseph Frederick and some friends unfurled a 14-foot-long banner with the inscription: “Bong Hits 4 Jesus.”

But Frederick never reported to school. He said his car was stuck in snow.

He arrived outside the school in time for the torch entourage. He stayed on the sidewalk across the street from Juneau-Douglas High, and with the help of several other students, held up the banner just as the torch passed, in the hope of getting on the local TV news.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.

Juneau principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating drug use. But it probably did not help his case with the court, that he later pled guilty to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Texas.

This from PBS's NewsHour.

Experts Analyze Supreme Court Free Speech Rulings

JUDY WOODRUFF: What signals does the court send with today's decisions? For that, we turn to: Walter Dellinger, former acting solicitor general under President Clinton, and now a law professor at Duke University; and Richard Garnett, associate professor at Notre Dame Law School, where he teaches on First Amendment issues.

Richard Garnett, to you, first, three decisions, three split decisions, 5-4. Is there a common thread here as it relates to the First Amendment? Are we learning something about this court and the First Amendment today?

Richard Garnett: Notre Dame Law School

"...you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism."

RICHARD GARNETT, Notre Dame Law School: You know, one thread that seems to hold these cases together is that, in all three, you had an older decision that the courts have had the option of either rejecting or reversing entirely or trying to live with. And in several of the cases, you saw some of the justices on the conservative side saying, "Look, we should take this farther. The cases you're asking us to work with, they were wrongly decided. Let's scratch them and move on."

But in all of these cases, the court decided not to do that. And instead you saw what I regard as relatively narrow, modest opinions, which stayed within the framework of earlier decided cases. So you might say that these three cases are consistent with a theme that some people have seen in the new chief justice's thinking and writing, namely, incrementalism.

JUDY WOODRUFF: Is that what you're seeing, Walter Dellinger, incrementalism?

Walter Dellinger: Duke University School of Law
"In the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use."

JUDY WOODRUFF: Well, we hear Professor Garnett saying, though, they're doing this along pretty narrow definitions of the law.

WALTER DELLINGER: Well, that was true at least in one of the cases today, the school case. One of the things we learned about the First Amendment today was that the court -- it's a little more differential [sic] to free speech rights of corporations than it is to public school students in one important respect...

...And yet in the "Bong Hits 4 Jesus" case, what was striking was that the opinion is actually quite narrow. It's protective of student speech, because the opinion says that you can only suppress student speech if you're actually advocating illegal drug use.

But what does the phrase "Bong Hits 4 Jesus" mean? Nobody knows. The kid may have just wanted to get on television.

But in that case, the court went the other way and assumed that this was an advocacy of illegal drug use. I don't think that an earlier court in Tinker would have thought this unprotected speech by the student.

~

This from the Los Angeles Times: Justices let schools ban pro-drug signs.
High court rules, 5-4, that administrators have the right to discipline students for promoting illegal activities.

This from Education Week: Supreme Court Backs Discipline of Student for Drug-Related Banner.

And this: U.S. Supreme Court Limits Student Speech in 'Bong Hits 4 Jesus' Case.

This from BBC News: US student loses free speech case

This from the Christian Science Monitor: Court restricts student expression.
The Supreme Court ruled Monday that school officials retain discretion to censor student speech that they believe may encourage illegal drug use.

This from Breitbart: Top US court rules against 'Bong Hits 4 Jesus.'

This from CNN: 'Bong Hits 4 Jesus' case limits student rights.

This from the Chicago Tribune: Court Limits Student Free-Speech Rights.

This from MSNBC: Supreme Court limits student speech.
In 'Bong Hits 4 Jesus' case, Roberts says advocacy of drug use can be curbed.

No Bong Hits 4 Jesus after all

The US Supreme Court handed down its decision in Morse v. Frederick today where the Court held that public schools do not violate the First Amendment rights of students by sanctioning them for speech during a school-sanctioned activity that may be reasonably interpreted to promote the use of illegal substances.

A high school student was suspended after he displayed a banner with the message "Bong hits 4 Jesus" during a televised parade on a school day.

The student subsequently sued his principal, arguing that the principal unreasonably restricted his right to free speech. The Court reversed the Ninth Circuit's decision and held that the "First Amendment does not require schools to tolerate at school events student expression that contributes" to the danger of illegal drug use.

Read the Court's opinion per Chief Justice Roberts, along with a concurrence from Justice Thomas, a second concurrence from Justice Alito, a partial concurrence and dissent from Justice Breyer, and a dissent from Justice Stevens.

This from Jurist.

And this from the Anchorage Daily News.

WASHINGTON -- The Supreme Court tightened limits on student speech today, ruling against a high school student and his 14-foot-long "Bong Hits 4 Jesus" banner.

Schools may prohibit student expression that can be interpreted as advocating drug use, Chief Justice John Roberts wrote for the court in a 5-4 ruling.
Joseph Frederick unfurled his homemade sign on a winter morning in 2002, as the Olympic torch made its way through Juneau en route to the Winter Olympics in Salt Lake City.

Frederick said the banner was a nonsensical message that he first saw on a snowboard. He intended the banner to proclaim his right to say anything at all.
His principal, Deborah Morse, said the phrase was a pro-drug message that had no place at a school-sanctioned event. Frederick denied that he was advocating for drug use.

"The message on Frederick's banner is cryptic," Roberts said. "But Principal Morse thought the banner would be interpreted by those viewing it as promoting illegal drug use, and that interpretation is plainly a reasonable one."
Morse suspended the student, prompting a federal civil rights lawsuit.
The winning side in the case was quick to assert that the decision was not anti-free speech.

In their concurrence, Justices Samuel Alito and Anthony Kennedy specified that the court's opinion provides no support for any restriction on speech that goes to political or social issues.

It's a narrow ruling that "should not be read more broadly," said Kenneth Starr, whose law firm represented the school principal.

Students in public schools don't have the same rights as adults, but neither do they leave their constitutional protections at the schoolhouse gate, as the court said in a landmark speech-rights ruling from Vietnam era.

The court has limited what students can do in subsequent cases, saying they may not be disruptive or lewd or interfere with a school's basic educational mission.

Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

Joseph Frederick, who has been teaching and studying in China, pleaded guilty in 2004 to a misdemeanor charge of selling marijuana at Stephen F. Austin State University in Nacogdoches, Texas, according to court records.

Conservative groups that often are allied with the administration are backing Frederick out of concern that a ruling for Morse would let schools clamp down on religious expression, including speech that might oppose homosexuality or abortion.