Tag: 1st Amendment

Shane Kinney’s NRA Shirt and Your Rights

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A public school cannot stop a kid from wearing this

The Bill of Rights in our Constitution – it’s easy to cherry-pick the parts of it you want to defend. It’s also easy to see who cherry-picks what. 

Western New Yorkers have tested the First Amendment on two occasions in the past few weeks. I highlighted one of them already – the efforts of a handful of people in the Clarence community to censor books, censor parts of the curriculum, and demagogue the disease prevention unit of the sex education curriculum. The other is Shane Kinney’s NRA t-shirt on Grand Island. 

Kinney was asked to remove a “Protected by Smith & Wesson” sweatshirt, and then to turn a pro-NRA t-shirt inside-out. The school apparently gave Kinney a suspension when he refused to do so. 

I don’t like the gun lobby, and I don’t like guns. I detest the gun culture in all of its incarnations. I don’t like Freudian allusions whereby one extols the virtue of self-protection with killing machines and their long, cold, hard shafts. As point of fact, I hate guns. 

That doesn’t mean Shane Kinney’s rights to free speech should be infringed. 

Eugene Volokh explains that at least one federal circuit has declared school prohibitions on shirts that display guns. The issue is a tricky one for schools. A school is a government entity, but it deals almost exclusively with minors. A school is well within its rights, for instance, to censor a child’s clothing if it, for instance, glorifies or promotes violence, drugs, alcohol, or some other inappropriate or harmful behavior. When it comes to guns, the Constitution is invoked, and it’s a matter of degrees. 

An NRA t-shirt that quotes an excerpt from the 2nd Amendment is completely acceptable in all aspects. There is nothing objectively controversial about it, regardless of whether or not you like guns. The issue in cases such as Kinney’s revolves around the depiction of actual firearms. Here, you run into an analysis that requires you to parse the definitions of terms like “disruption” and “violence”.  A picture of two crossed rifles is not a big deal. On the other hand, a t-shirt depicting, say, a trenchcoated figure using an assault rifle to shoot a schoolkid in the head would be patently objectionable. 

But if you look at the Grand Island school district’s own dress code, it doesn’t really say much about guns. It prohibits “vulgar” or “obscene” t-shirts, and clothing cannot “promote and/or endorse the use of alcohol, tobacco or illegal drugs and/or encourage other illegal or violent activities”.  Courts use a case from the mid-60s to handle these sorts of issues. From the case Volokh cites,

Because most public school students are minors and school administrators have the duty to provide and facilitate education and to maintain order and discipline, the Supreme Court “has repeatedly emphasized the need for affirming the comprehensive authority of the States and of school officials, consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools.” Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 507, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Consequently, while a public school student does not “shed [his] constitutional rights to freedom of speech or expression at the school-house gate,” id. at 506, those rights may be limited as long as the limitation is consistent with constitutional safeguards…

…”conduct by the student, in class or out of it, which for any reason — whether it stems from time, place, or type of behavior — materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech.”Id. at 513, 89 S.Ct. 733. Accordingly, Tinker “requires a specific and significant fear of disruption, not just some remote apprehension of disturbance.” Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 211 (3d Cir.2001). In sum, “if a school can point to a well-founded expectation of disruption — especially one based on past incidents arising out of similar speech — the restriction may pass constitutional muster.” Id. at 212.

Courts have upheld, for instance, students’ rights to wear black armbands to protest war, and also upheld a school’s ability to restrict or punish lewd and inappropriate language.

Arguably anything involving firearms is by definition “violent”, but in Kinney’s case, the firearms were merely depicted – in the image, they were not being fired at anyone or anything. The “protected by Smith & Wesson” sweatshirt was likely closer to the line, as it specifically invoked a threat of deadly force in response to a provocation. Even deadly force in self-defense is, by definition, violent, and under the “substantial disruption” standard in the Tinker case, that invocation of violence might be legally restricted, depending on whether the school could establish that the restriction was based on ” something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,” and instead on whether the shirt would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.”

I remember I was once handling a criminal matter in Massachusetts and a man with an Irish surname was being arraigned on an assault & battery charge. He had been arrested while wearing a Notre Dame jacket, which depicts an angry leprechaun with his fists up, waiting for a fight, and I thought to myself that it was an especially funny thing to be wearing under those circumstances. Does that belligerent Irish stereotype violate high school dress codes because it glorifies violence? I doubt any principal would punish a kid for that. 

But while local right-wing media have been milking this NRA shirt thing for a week now, even causing it to go national, they’ve been completely silent (as far as I can tell) as far as efforts to violate the 1st Amendment when it comes to banning award-winning literature in Clarence schools. They’ve not said anything about protecting the sex education unit recommending that kids who have sex use condoms to prevent unwanted pregnancy and sexually transmitted disease. (Abstinence is part of the curriculum, incidentally, but not the entire curriculum because that would be insane). 

So, Shane Kinney should be free to wear his NRA t-shirt and probably even his Smith & Wesson t-shirt.  It’s not my favorite thing in the world, nor something I would send my kid to school in, but my sensibilities and opinions can’t be the arbiter of what is and is not appropriate or legal. The school district likely owes Kinney an apology. 

Clarence Bans Nothing

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On Tuesday night, the Clarence School Board held its regularly scheduled March meeting. On the agenda was a review of the curriculum procedure regarding materials that some parents might find objectionable. This is a completely reasonable thing for a board member to want to discuss, and wholly uncontroversial. 

However, late last week, an inflammatory hit list of allegedly obscene or inappropriate books and other materials was sent to selected homes in town. I obtained a copy of it and posted it widely  – here at Artvoice and on social media sites.  It – and my accompanying letter to the board – spread throughout the town. 

The people who had hoped that Tuesday’s meeting would include a discussion of an inappropriate curriculum were met with a shocker last night. These meetings – at best – attract about 20 spectators. This time, however, the place was literally standing room only. 

The board flew through its regular agenda, including a somewhat distressing presentation about the district’s understaffed special education department – last year’s budget crisis eliminated all of the social workers. Zero, nada, zilch. Kids who need these special services include those who undergo some sort of situational trauma like death, disease, divorce, drugs, or depression. So, it’s an interesting coincidence that many of the books on the hit list included kids who underwent similar traumas – especially rape. It was also striking to me that the majority of the books on the hit list were written by women, had female lead characters, or advocated somehow for the notion that women not be victims of assault, and that they are human beings equal to men in all things. 

When the discussion turned to this agenda item, Trustee Jason Lahti, who originally brought the matter up, begged off the controversy, indicating that he merely wanted to discuss the curriculum process, not ban any books. He indicated that he did not know anything about the letter and hit list from his wife, Ginger, that circulated throughout the town. Trustee Roger Showalter, Ginger’s brother, tersely indicated his satisfaction with the town’s opt-out provision for parents or kids who find materials objectionable. Then the rest of the board spoke. Every single Trustee spoke passionately and eloquently about the teachers, the students, the curriculum, and the adequacy of the current policies. Julie McCullough got the first standing ovation, and a huge sigh of relief when I realized that the crowd was there to defend – not defame – the books and faculty. Board President Michael Lex spoke about the need for adolescents to learn about overcoming assault and adversity, and quoted the author of hit list book Speak: 

But censoring books that deal with difficult, adolescent issues does not protect anybody. Quite the opposite. It leaves kids in the darkness and makes them vulnerable. Censorship is the child of fear and the father of ignorance. Our children cannot afford to have the truth of the world withheld from them.” – Laurie Halse Anderson

Then, the community spoke. Student after student – some current, some recent alums – was unbelievably brave and eloquent. Not only had they been taught to be rational analysts and critical thinkers, but good speakers, too. They defended specific books – one especially brave young alum spoke of her own assault and how it affected her mental health, causing her to drop out of college. She explained that she suffered terrible anxiety, yet she stood bravely in front of the board and 100+ members of the community to defend Speak, holding up her dog-eared copy and explaining how it helped her. Kids stood and defended their teachers and the way in which they teach these materials in a thoughtful and engaging way. 

There were a small handful of people there who were there to defend the hit list. Ginger Lahti herself was there, and tried to disassociate herself from the controversy. While Channel 2 was airing an interview with her in which she acknowledged preparing the mailing to address “obscene” works, she stood before the community to explain that it wasn’t even her list, that she had only shared it with two pastors, and that she doesn’t know how it got circulated. She said she wanted to see what the community thought, and she acknowledged that the community was clearly just fine with the current policy. One woman relentlessly attacked the works, alleging that she and her family had opted out over 30 times because of language and themes in some of the works, and she saved especial ire for the sex ed curriculum. Frankly, if you’re opting out of award-winning literature 30 times, perhaps public school just isn’t for you. 

However, the four people, including Lahti, who spoke about the hit list did raise an important issue – some kids who opt out have no meaningful alternative, and are just sent to the library for weeks at a time. 

When I spoke I thanked the board for bringing this matter to the community’s attention, and thanked Mr. Lahti specifically.  I said it was good to, basically, air grievances and discuss how to make policies work better, and that it was important that the handful of affected opt-out parents bring the issues of alternatives to the board’s attention so that these matters can be handled better. But I pointed out the Blue 4 Ben movement and argued that the community was capable of great things when we work together, rather than trying to rip people apart. While the agenda seems uncontroversial now, when it was coupled with the outrageous hit list, it certainly seemed to be a set-up for an effort to ban books and restrict the faculty’s and students’ rights. While Mrs. Lahti now disavowed the list and said she didn’t know where it came from, I noted that she referenced it in her letter. I closed by noting how my parents emigrated to this country in order to flee totalitarian dictatorship and a place where they were told what to think, what to read, and with whom to associate, and never did anyone imagine that we’d be facing similar issues in the U.S. a half-century later. 

The faculty – Mr. Zahn and Mr. Starr spoke passionately to defend the teachers and the curriculum, but also the Constitution. There was the kid who joked that the books on the hit list were so harmful to his upbringing that, instead of being back at college doing drugs, drinking, and having sex, he was at a school board meeting during Spring break defending the wholesomeness of his education. One parent stood to link the earlier special education presentation to the issues brought up in many of these books – how will we adequately help kids who suffer real-life traumas if we refuse properly to fund the nurses, special education, and school psychological staff. 

It was a glorious night, and the board just killed it. A packed house to defend free speech and critical thinking. A packed house to defend controversial books and essays, arguing that these materials are part of a carefully crafted, well-considered curriculum, and that the works are handled appropriately, with care. 

Yesterday, in advance of the meeting, I took some time to learn a little bit about each book on the hit list. Each one of them is an important, noteworthy work that teaches adolescents a valuable lesson. 

The Clarence List by Alan Bedenko

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 But I learned a valuable lesson, too. I learned that the kids are awesome. They’re brave, well-spoken, thoughtful, and hungry for knowledge. Whether it was the professional-quality, amazing production of Spamalot that the high school drama club put on last weekend, or the heartfelt speakers last night, they made us all proud. 

Clarence Schools Urged to Ban Books

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Note: At the February meeting of the Clarence school board, new trustee Jason Lahti asked the board to add an agenda item to the next meeting so that certain inappropriate materials could be discussed. The following letter was circulated to some Clarence families over the last week. The author of the letter is Lahti’s wife (and co-trustee Roger Showalter‘s sister). Shown below the embedded letter is the text of what I sent the board in advance of Monday’s school board meeting. In 1999, an effort was made to ban Harry Potter in Clarence schools. Now, we have a wider range of materials under attack. I think my letter speaks for itself, but I will add that banning books in schools is a 1st Amendment issue, and if this happens, I will gladly participate in an effort to bring a Constitutional challenge. Banning books is a much clearer and more present danger to education than anything relating to Common Core. 

Clarence School Curriculum Letter March 2014 by Alan Bedenko

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Ladies and Gentlemen of the Clarence School Board,  

It has come to my attention that there will be an agenda item and discussion at the March 10th board meeting to address concerns about certain curriculum materials having mostly to do with English, literature, and sex ed. 

I will be blunt – I do not want the school board legislating, micromanaging, or censoring the ELA curriculum or the ELA teachers. I think that these teachers are professionals, and that the school and parents can trust them to make appropriate curriculum choices in order to stimulate our children’s minds, turn them into critical thinkers, and make them hunger not only for knowledge, but curiosity. 

It is also my understanding that a policy exists whereby a parent can opt a child out of a particular reading assignment if they have a problem with the subject matter, so the issue is moot. 

The timing of this is highly suspect. I perceive this as a renewed attempt to divide this community into factions. Last year it was the budget. This year it’s the books. Next year it will perhaps be rejection of the science curriculum, or abstinence-only education. 

The NYS School Board Association maintains that a school board member must be, among other things, a “representative of the entire community”, and not just one faction of it. 

I do not support the censorship or banning of books, and I hope that in these lean budget times, the board would choose to avoid a costly and embarrassing constitutional challenge. 

1. CONFLICT OF INTEREST

There was an informational packet sent around to some town households in the last week or so, containing a call to action and a list of wildly extracontextual selections of themes and passages from books, essays, songs, and sex ed materials. It can be found at this link: http://www.scribd.com/doc/211263269/Clarence-School-Curriculum-Letter-March-2014 

That packet was prepared in part and sent by Ginger Lahti, who is the sister of one board member and the wife of another. There is a clear and obvious conflict of interest, and Mssrs. Showalter and Lahti must recuse themselves from any discussion or vote on this curriculum issue. This is not to punish Mrs. Lahti from speaking out – she has every right to petition the board for whatever she chooses. But because of the close family relationship she has with two members of the board, fairness and ethics demand recusal. The Board’s own Code of Conduct demands high ethical standards and mandates avoidance of even the appearance of impropriety. I believe that this issue meets that standard, and demands recusal.

2. SEX ED

There is a handout about avoiding STDs that Mrs. Lahti finds objectionable. Another one a “sexual behavior chart”. I’m willing to bet that there are more materials that exist within the sex education curriculum, some of which likely contain information about not having sex at all. But teaching abstention does not free our district from not teaching kids how to avoid sexual risk as part of the larger health curriculum. Some kids and parents are embarrassed to discuss matters such as these, but it’s critically important for adolescents to know how to avoid unwanted pregnancy and disease. None of it forecloses a household from emphasizing abstinence within its own personal morality. 

3. LITERATURE

10 of the 24 objectionable materials are for AP classes – college level reading. These kids are at an advanced, mature stage of their academic and chronological lives and can absolutely be trusted to read about adult themes. Likewise, the educators can be trusted to select age-appropriate literature, and the uncomfortable parts of these works can be addressed and discussed.

Where one finds only “male love dolls” and “flavored lubricant”, another finds a brilliant essay on life as a homeless person. Does Jonathan Swift’s classic 1729 satire, “A Modest Proposal”, which mocks the mistreatment of the poor, now merit censorship? After all, Swift is not really advocating for the consumption of infants. Steinem didn’t write about frathouse rape to excite people’s prurient interests, but to expound on the college experience that some women endure. The “Fraternity Drinking Songs” piece demonizes sexual harassment and mistreatment of women – people should be outraged by the song, not by the piece criticizing the song and its rape lyrics.

Farewell to Manzanar isn’t about glorifying child abuse, but one Japanese-American family’s experience in the WW2 internment camps. Those camps were a nightmare – we’re now going to censor teachers from teaching about American history, because some of it was unpalatable? Should we restrict anyone from using Anne Frank’s diary in the classroom because her experience is just too much? These allegedly serious concerns include – apropos of nothing – lyrics from a 5 year-old Nelly Furtado song, and a Donn Esmonde column.

It would appear that there are passages and themes picked out of a larger work, completely out of any meaningful context. They are selected by trained, educated, licensed, professional AP English or Literature teachers so my child can become a critical thinker, a lover of reading, and a lifelong learner.

4. CONCLUSION

Education shouldn’t just be the rote memorization of facts and figures. Sure, that’s part of it, but school exists also to teach kids how to think. Life and this world are full of things that make people uncomfortable. Thinking about things that make us uncomfortable is to be encouraged, not legislated away. Given that most kids in Clarence come from a home with involved parents and relative comfort, we should all make sure that they understand, appreciate, and think critically about the world and their role in it.

If layperson parents want to ensure that their children are exposed only to “wholesome” materials (the definition of which is wholly subjective), they have myriad ways to accomplish that goal. The problem is that Clarence is not some monolith – one person’s “wholesome” is another person’s unconstitutional censorship.

Mrs. Lahti’s call to action closed with a quote from utilitarian philosopher John Stuart Mill; “bad men need nothing more to compass their ends, than that good men look on and do nothing.” Setting aside for a moment the insulting notion that Clarence’s ELA and health educators are “bad”, that one quote is – like all the others in that packet – wildly out of context and wholly inappropriate here. Mill’s 1867 inaugural speech at St. Andrew’s University is a great read, and a brilliant exposition on the purpose and value of higher education.

Mill went on to say that schools, “are not intended to teach the knowledge required to fit men for some special mode of gaining their livelihood. Their object is not to make skillful lawyers, or physicians, or engineers, but capable and cultivated human beings.” He described education as many things, including, “the culture which each generation purposely gives to those who are to be its successors, in order to qualify them for at least keeping up, and if possible for raising, the level of improvement which has been attained.” These children will go on to do great things, if we let them. Here’s a better Mill passage:

If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind. Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.

— On Liberty, John Stuart Mill

Please do not censor or redact what is taught to kids in the schools. Our professional educators do not seek to add violent, or pornographic texts in order to elicit similar behaviors from students, or to excite some hypothetical violent or sexual propensities. These texts all serve a particular purpose, within their proper contexts, whereby our children are molded into adults capable of critical thought and rational analysis. Please don’t legislate someone else’s morality on our children, and breach the Constitution in the process. If parents truly fear exposing their children to the materials at issue here, they can take advantage of the existent opt-out provision. This is sound and fury, signifying nothing.

Alan & Maryl Bedenko

Clarence Center

Parents of two children in the Clarence Central School District, and School Taxpayers

Hamburg and the Constitution

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The right to blog anonymously is a right. The Hamburg School District is trampling all over that right, and sends a poor message to the students it purports to represent. 

I have never read the “Hamburg Educational Ethics” blog, which is written by the “Concerned Hamburger” anonym, but whoever writes it is a WNY blogger and, as far as I’m concerned, a colleague. 

I don’t know the first thing about what goes on in the Hamburg schools, but I know that the district doesn’t have to like what the author of that blog writes – in fact, they can hate it. But that doesn’t give them the right to serve a subpoena to “out” its author. 

Criticism of a school district is, after all, political speech – in 1st Amendment jurisprudence, political speech is afforded the very highest protection from government intervention or harassment. It is unconscionable that the district – which is a government entity – is so blatantly violating the 1st Amendment in an attempt to silence a critic. This is the stuff dictatorships do. It is absolutely unacceptable in this country. 

One of the blog’s anonymous commenters, who is also subject to the district’s subpoena, wrote this, 

Dear Readers….

Recently Concerned Hamburger received an email notification from Google indicating that the Hamburg School District, through their attorney Dick Sullivan of Harris Beach~ a commercial real estate attorney moonlighting in education and constitutional law~issued a subpoena to Google demanding the identities of Concerned Hamburger, Super and Klozman.  Immediately, Concerned, Super and Klozman, remaining anonymous,  hired a constitutional attorney to quash the subpoena.  You see readers~ we have the right in this country to voice our opinions and state the facts as we see them.  For almost three years and approximately 300K page hits, Concerned Hamburger has been operating as a citizen journalist reporting on the antics of the public faces of the Hamburg School District. Concerned is dedicated to reporting, and will continue to write on the school district despite their efforts to silence me and others.  It has been reported to Concerned Hamburger by many sources, that Dr. Joan Calkins has a vindictive and demonic alter ego.  Joan’s “other self ” has reported thoughout the Hamburg Community that she will unmask Concerned Hamburger, and she will cause financial harm to the victims of frivolous and baseless lawsuits she and Steve concocted.  Fortunately, turn around is fair play, and it seems that the plans of the District, the Bored of Education, Mr. Abramovitch and others will have unintended consequence never deemed fathomable on the onset of their witch hunt.  

Frankly, if the behavior of the the Bored of Education and Mr. Achramovitch was not so egregiously corrupt, there would be no material to report.  Instead, you the reader~of which there are many~ have been give factual, and sometimes humorous, accounts of the insidious behavior. 

* Concerned Hamburger has already spent thousands of dollars attempting to protect their rights, and it is likely the the district has spent tens of thousands on this witch hunt.   This latest stunt by Steve and Joan et. al. should shock the conscience of any reader.  Taxpayer dollars intended to go to children to support a fair and balanced education in accordance with NYS Constitutional Law instead is being used to strip  Federal and State Constitutional rights from private citizens- who are taxpayers. Steven Achramovitch ought to be fired immediately, and charges should be filed against each and every board member individually and collectively. A groundswell of anti-Joan and Steve support it growing across this community, and it appears this is only the beginning. 

Sincerely,

Concerned Hamburger 

That’s the nice thing about the 1st Amendment’s protection of political speech – if you don’t blatantly libel someone (that is, knowingly or negligently publishing a false statement of fact, depending on whether the subject is a public figure or not), you can write whatever you want. For instance, the author above refers to people as  “corrupt”, “frivolous”, “vindictive” and “demonic”. Those are statements of opinion, not fact, and opinion cannot be false or true – it is protected speech. 

A quick scan of the front page of the blog reveals recitations of facts dealing with school policy and budgeting, and opinion about those facts. Nothing appears to be defamatory or otherwise actionable. The fact that the district took action against the bloggers and not individual members who feel insulted helps enhance the Constitutional issue.

Bloggers have rights with their foundation in the 1st Amendment.  Anonymity is sometimes used by bloggers to shield them from repercussions at work. In 1995, the Supreme Court held that anonymous speech is protected speech. 

Protections for anonymous speech are vital to democratic discourse. Allowing dissenters to shield their identities frees them to express critical minority views . . . Anonymity is a shield from the tyranny of the majority. . . . It thus exemplifies the purpose behind the Bill of Rights and of the First Amendment in particular: to protect unpopular individuals from retaliation . . . at the hand of an intolerant society.

The Federalist Papers were written by anonyms. The Hamburg school blog may be no Federalist Papers, but it is still important to protect anonymous political speech, and the district’s efforts to use the courts to chill speech critical of it is reprehensible. 

While a minority of western New Yorkers expresses weeks’ worth of righteous Constitutional outrage over a gun law that only slightly tightens what were already the most restrictive gun laws in the country, this – this infringement on protected political speech deserves at least the same reaction.  

Perhaps the district’s social studies teachers can add this to their curriculum.