Taxation as Representation?

By Shawn Healy

Tomorrow the U.S. Supreme Court will consider a case involving the rather mundane issue of taxpayer standing in filing lawsuits against the government for programs enacted in violation of the Establishment Clause of the 1st Amendment. The case, Hein v. Freedom From Religion Foundation developed close to home. The Wisconsin-based organization challenged the constitutionality of the White House's Office of Faith-Based and Community Initiatives, and a federal district court in Madison turned them down, arguing that such standing applied only to cases involving congressional taxing and spending issues, not executive orders issued by the President.

In an appeal to the 7th District Court of Appeals, however, the court reversed course and ruled in favor of the plaintiffs. Judge Richard Posner wrote: "Taxpayers have standing to challenge an executive-branch program, alleged to promote religion, that is financed by congressional appropriation, even if the program was created entirely within the executive branch..."

His colleague, Judge Kenneth Ripple, in dissent, warned of a "dramatic expansion of current standing doctrine" if this decision stands. The petitioners themselves, the Office of Solicitor General, claim that the 7th District ruling goes so far as to violate the separation of powers doctrine, as the judicial branch invades upon executive branch authority.

The significance of a reversal by the Supreme Court could be a dramatic curtailment of Establishment Clause challenges by taxpayers. Stay tuned to this blog for updates on the oral arguments, the eventual decision and its long-term impact.

Walking the Line in Cactus Country

By Shawn Healy

Deb Mayer's recent First Amendment battles in the classroom have been well documented on this web log (2-5 and 2-20 posts), but the war over political speech espoused by teachers in our nation's public schools rages on. The Arizona Senate is considering a bill that would prohibit an instructor from endorsing a political candidate or from taking one side or the other on a controversial political issue.

While some fear that the bill could stifle discussion of any political issues, its sponsors suggest that it only dictates a position of neutrality on such touchy topics. Others argue that the bill is overly broad in scope and its spirit is already achieved through local policies (Ms. Mayer's case apparently cements this point).

As a former educator I recognize the power of teaching controversial issues in the classroom. Students are naturally interested in such tension, and teachers must show sensitivity when turning to these topics given the heterogeneity of their pupils in terms of race, gender, ethnicity, class, etc. Moreover, given the fact that students are in formative stage of development intellectually, balance is a must. There are, however, several ways of achieving this outcome.

1. Present both sides of an argument and ask students to weigh in with the position they find most appropriate.

2. Play devil's advocate, sensing the majority sentiment in the class and portraying the opposite.

3. Balance a viewpoint espoused in class with source material (op-ed pieces, film clips, political speech excerpts, etc) that draws an opposite conclusion.

4. Facilitate a class debate where students espouse their own personal beliefs.

5. Conduct a similar debate, but assign students to particular positions beforehand.

While this list is by no means exhaustive, some of these techniques could be precluded by the aforementioned Arizona legislation. I used each approach at different times during my career to various degrees of success, and wonder if further intrusion into the pedagogical methods of educators is the most productive use of political time and effort.

The Sound of Silence

By Shawn Healy

Deb Meyer, the former teacher who lost her First Amendment battle in the 7th Circuit Court of Appeals, responded to my February 5th entry by forwarding a letter she wrote for friends and supporters. It reads as follows:

February, 2007

Hello dear friends,

I wanted to share with you the latest development on my case. If you recall I was fired from my teaching job in Bloomington, Indiana for making a statement in support of peace before the war in Iraq began. Most recently I appealed to the Seventh Circuit Court of Appeals in Chicago to reverse the lower court’s ruling stating that teacher’s have no right of free speech.

I have lost the appeal with the court ignoring the issue to be decided, disregarding the facts of my case, and making assumptions that are not true. My attorney and I have petitioned for a rehearing, but I understand those are seldom granted in this court.

I am attaching the opinion and the request for rehearing so you can know the facts first hand. Either this court is crooked or extremely incompetent. Either way I am being denied justice and the entire country will suffer as a result.

Please share the opinion with your friends in education. Teachers need to know that their precious freedom of speech is now considered a commodity by the court. From the opinion, “. . . the school system does not “regulate” a teacher’s speech as much as it hires that speech. Expression is a teacher’s stock in trade, the commodity she sells to her employer in exchange for a salary.”

I would intensely argue that my speech is not for sale at any price and certainly not for a paltry teacher’s salary. My stock in trade is my knowledge about how kids learn and how to best teach them – not my right of free speech. I think this language changes entirely how we view our freedom. I certainly would not sell my freedom to a school system that requires me to teach lies as the truth as Monroe County Community School Corporation did. I was required to teach that Iraq had weapons of mass destruction and other untruths, and to always paint the President in a favorable light without giving real opposing views.

My next step is to go to the Supreme Court, but I need help. If you care about your right of free speech, please tell everyone you know about this new view of freedom.

Deb Mayer

She added that the Garcetti v. Ceballos Supreme Court decision last summer served to silence government workers nationwide, herself included. Mayer requested that we do all we can to stem the tide and push for the reversal of what she sees as a unconstitutional decision. She pleaded, "Please help save free speech at school. Call your school board. Write letters to the editor. Talk about it while you still have the freedom."

Religion and Politics...

By Shawn Healy

The two topics forbiden in the company of strangers, or with those whom you share conflicting viewpoints or denominations. In a presidential race where we have the most formidable female and African-American candidates to date, the issue of religion has also entered the fray on the Republican side of the aisle. Although former Massachusetts Governor Mitt Romney is not the first Mormon to seek the White House (Senator Orrin Hatch ran unsuccessfully for the GOP nomination in 2000), his status as one of three frontrunners in a deep field of contenders has elevated the issue of religion in this elongated contest.

Many Americans seem more willing to vote for a female or African-American candidate than a Mormon, and this brings back memories of John Kennedy's successful run in 1960 as the first Catholic President in history, or Al Smith's losing bid in 1928 as the first Catholic major party nominee. Joe Lieberman's unsuccessful run as Al Gore's VP in 2000 brought similar attention to the issue, but an overwhelming number of American stated that his Orthodox Judaism presented no barriers for them in the voting booth. For many, it actually enhanced his status.

Why then are a large segment of Americans reversing course and concluding that they could not support a Mormon? Is this bias tied to historic misconceptions? Fear of the unknown? It is my hope that these answers will emerge in the coming months, and whoever receives the respective nominations of both parties is judged by their respective policy positions and qualifications for office, and not the color of their skin, their gender, or what house of worship they frequent, or ignore altogether.

Words Mean Things

By Shawn Healy

In this political era of 30-second sound bytes and blogs, it should come as no surprise that musings directed toward, uttered by, and associated with presidential campaigns launching in full force 22 months before Election Day have come back to haunt all of the aforementioned parties.

The brigade began two weeks ago when aspiring Democratic presidential candidate Joe Biden "complimented" fellow contender and party member Senator Barack Obama by calling him "clean" in comparison to former African-American candidates. He issued an immediate apology, and later made fun of himself on the Daily Show, but the damage was done. Biden's story ran on the front page of the New York Times, and his campaign may have effectively ended on the same day it started, setting a record for brevity.

Obama accepted Biden's apology immediately, brushing aside any ill intentions, but later moved away from this position as other African-American leaders rose in opposition.

President Bush also "complimented" Obama in an exlcusive interview granted to the Fox News Channel. By describing him as "articulate" the President ignited a firestorm of his own as some took the description to mean that this trait was rare among African-Americans.

Obama proved equally adept at stepping on his own foot. One day after officially entering the race he claimed that the more than 3,000 U.S troops who have died in Iraq "wasted" their lives. Although he read from a scripted speech, he has since recanted his remark and claimed that he spoke in error.

The blogosphere was the site of the most recent controversy. Former Senator John Edwards, another Democratic contender for his party's presidential nomination, employed two bloggers who posted anti-Christian and anti-Catholic rants on their own personal blogs in months past. Edwards refused to fire them, although he did admit to being offended by their content. In the end, both bloggers resigned, but only after the story became a national scandal.

The Democratic frontrunner, Senator Hillary Clinton, in perhaps the biggest of ironies, is drawing scrutiny in New Hampshire and Iowa for what she refuses to say. While Obama has opposed the Iraq War since its inception and Edwards has since labeled his vote to authorize the war a "mistake," Clinton refuses to do the same. She admits that if confronted with the evidence as it currently exists, she would have voted against the war.

In the end, Democratic primary voters will sift through this littany of gaffes and omissions, but their compilation is evidence of a profoundly changed political landscape where minor stumbles can lead to great falls with the cameras always shining, keyboards in perpetual motion, and a million pundits ready to weigh in. Only 629 days to go...

Speech at the Schoolhouse Gate

By Shawn Healy

Washington State's consideration of legislation to expand student press rights has spawned national discussion over the extent to which the First Amendment applies to students within the schoolhouse gate. USA Today ran point/ counterpoint articles on the subject in today's editions, and Gene Policinski of the First Amendment Center weighed in on proposals in both Washington and Kansas, the latter legislation creating a board of approval for student publications beyond the principal.

The McCormick Tribune Freedom Museum's current temporary exhibit, Speech at the Schoolhouse Gate: Students' Use of First Amendment Freedoms, celebrates the vibrancy of the five freedoms both inside and outside the classroom. The top ten entries in the inaugeral MTFM/ J-Ideas National Editorial Cartoon Contest are the centerpiece of the exhibit (check them out on our web site), and are complimented by the four winners of the Illinois First Amendment Center poster contest.

Also on display are award-winning entries from the DuPage County Regional Office of Education "Call to Action," an article on media censorship in Gumbo Teen Magazine, and another article on First Amendment case law as it applies to schools in Say What?, a publication by Young Chicago Authors. Finally, two student-produced documentaries complete the exhibit. "The First Amendment Through Our Eyes" was compiled by Free Spirit Media, and "Live Free" by student filmmaker Alex Capogna.

The exhibit runs through March 25th, and look for a reprise of the cartoon contest next year with expanded categories to include photo journalism, web pages, and film.

Speech clearly does not begin or end at the schoolhouse gate. Its extent inside the classroom walls is the subject of debate in Washington and Kansas. The Freedom Museum shows the fruit of such endeavors as legislators weigh in on this most pressing of matters.

Angry Teachers

By Shawn Healy

One need only type in the key words angry teacher on YouTube and pull up 231 postings of student videos recorded on camera phones of their teachers acted in various states of anger and general discord. This phenomenon attracted the attention of the Los Angeles Times and Bill O'Reilly yesterday, and sets forth an interesting debate as school districts nationwide contemplate cell phone bans. New York City joined this fray, but some are weary of blanket bans in the aftermath of Columbine when students relied upon cell phones to notify authorities of the massacre. On the other hand, cell phones can certainly be a distraction and impede the educational process, representing a substantial distruption lending itself to school discipline.

Several issues should be considered in light of this controversy:

1. Should students be able to record and broadcast the classroom performances of their teachers, good or bad? Is the First Amendment implicated here?

2. Can teachers recorded on such videos be held liable for harassment and face punishment as a result?

3. Is there a middle ground here where cell phones are confiscated only when they are visible or audible by school employees?

4. Are cell phones a contributor to a safer school environment in light of Columbine?

5. Are blanket bans enforceable short of metal detectors and pat-downs at the schoolhouse gate?

I invite you to weigh in on these questions and more generally on this pressing digital age issue.

Drink the Hemlock

By Shawn Healy

The military trial of First Lt. Ehren Watada at Ft. Lewis, WA, has attracted national headlines over the last couple of days, and the story of his criticism of the Iraq War and refusal to deploy with his unit surfaced on the media radar since last summer. If convicted, Watada faces up to 4 years in military prison and dishonorable discharge.

While I certainly support the right of Lt. Watada to make disparaging comments about the Iraq War and other matters of public concern, I feel that he abrogated his duty to our country by deserting his 4,000 fellow troops in the 3rd Brigade, 2nd Infantry Division, and making comments that undermine their daily efforts to bring stablity and hopefully democracy to Iraq and the Middle East. Lt. Watada made a commitment to serve in 2003 as the US was already deployed in Afghanistan and contemplating an invasion of Iraq. He supported and served in the first conflict, but refused to deploy to the second, contending that "the wholesale slaughter and mistreatment of Iraqis is not only a terrible and moral injustice, but it's a contradiction to the Army's own law of land warfare."

Watada does not shy away from his spoken and published remarks, and shouldn't balk at serving time in jail or a dishonorable discharge either. He knowingly accepted the responsibilities of a soldier when he enlisted, leaving the terms of foreign engagements and deployments to elected officials and his superiors. When he violated this commitment he must have known that consequences would follow.

I find the story of Socrates as told by Plato a sound parallel. Socrates was a teacher of historic import and an advocate for democracy in his native Athens. When accused by the local government of teaching false gods to local youth, he accepted the punishment of his peers and drank the fatal dose of hemlock. Although his students crafted a plan for his escape, he reduced their argument in famed Socratic fashion, believing his decision rested in the best interests of democracy.

Watada should also stand on principle and accept his prison sentence and discharge. The merits of the Iraq War certainly warrant intense debate, but members of our military cannot pick and choose which battles to fight just as citizens cannot decide which, if any, laws they choose to obey. I saltute Watada's service in Afghanistan, and admire his outspoken opposition to the Iraq War. Socrates drank his hemlock, and Watada should enter his cell, both with their personal principles in tact.

Update: A mistrial was declared in the Watada case as he apparently signed a statement admitting to the actions described above, including his duty to deploy to Iraq. Watada contends that he did not want to go, never accepting it as his duty. The jury was dismissed and a new trial will begin on March 19th.

Puppet Show or Political Theater?

By Shawn Healy

Deborah Meyer recently lost her 1st Amendment battle to retain her position as an elementary school teacher when the 7th Circuit Court of Appeals in Chicago ruled in favor of her firing. A probationary teacher in Monroe County, Indiana, Mayer acknowledged to her students in the middle of a current events discussion that she beeped her car horn when she passed a demonstration against the Iraq War where one individual held a sign that read "Honk for Peace."

While the Court acknowledged that the Iraq War "is an issue of public importance," Mayer's rights as a public employee are restricted by a series of prior rulings, and specific limits apply in the classroom as teachers must execute the curriculum established by a chain of command that begins with the school principal. The Court argues "...that teachers hire out their own speech and must provide the service for which employers are willing to pay..."

The opinion concluded with the following contention: "It is enough to hold that the First Amendment does not entitle primary and secondary teachers, when conducting the education of captive audiences, to cover topics, or advocate viewpoints, that depart from the curriculum adopted by the school system."

While I will not quarrel with the opinion produced by the 7th Circuit as they are tasked with doing little more than applying past precedent to the facts of the case on hand, I do hope that Ms. Mayer appeals and that the Supreme Court grants cert and attends to a matter of utmost importance. Teachers are not mindless drones who operate out of a prescribed educational cookbook. They are for the most part highly-trained, yet underpaid, professionals who are fully capable of conducting themselves in a neutral fashion before students when addressing controversial subjects. Ms. Mayer's example serves to illustrate the multiple perspectives that the current conflict in Iraq extract from our citizenry. Her actions, whether right or wrong, mundane or controversial, deserve and demand constitutional protection.

On a personal level, I taught high school social studies for six years. I incorporated current events discussions into each subject to which I was assigned, from history, to economics, to government. These discussions cemented the importance of the material in the standard curriculum and allowed students to apply class principles to the real world. I encouraged students to take informed positions on these issues, but always avoided sharing my own beliefs. I chose this path not for constitutional reasons, but instead because I respected my students enough to draw their own conclusions when presented with objective information.

Some of my peers did use the classroom as a political platform, and I vehemently objected to these tendencies on pedagogical grounds. Then and now, however, I believe the First Amendment and their credentials as educators enable then to make this decision. Not a group of "concerned parents," not the students themselves, and certainly not the powers that be who spend little or no time in the classroom with tomorrow's leaders. We can only shield students from the realities of the society they will soon inhabit for so long, and we insult their intelligence when we take away their ability to make their own judgments about the political commentary and actions of their teachers.

To read the entire opinion, access the following web site and type in the docket number 06-1993. Then click "submit." The site does require free registration.

The History Behind Black History Month

By Shawn Healy

Black History Month has been celebrated in February since 1926 when Harvard scholar Carter G. Woodson attempted to make "the world see the Negro as a participant rather than as a lay figure in history."

But why devote February to Black History Month? The answer lies in our nation’s rich past. The month coincides with two men who had a great deal to do with freedom for the United States' African-American population, Abraham Lincoln (February 12, 1909) and Frederick Douglass (February 14, 1818). Woodson’s vision was reinforced by the historical events pertinent to African-Americans that unfolded in February both before and after 1926.

On February 1, 1865, Abraham Lincoln approved the 13th Amendment outlawing slavery. Five years later, on February 3, 1870, the approval of the 15th Amendment extended the right to vote to people of all races. February is also when we celebrate the anniversary of the Montgomery Bus Boycott (February 22, 1956), and mourn Malcolm X’s assassination (February 21, 1965).

African-American history is fundamental to the American fabric, which is why we celebrate it this month and throughout the year at the McCormick Tribune Freedom Museum.

We encourage you to check out our permanent exhibit, “Freedom For All?” which pays particular attention to African-American history. The exhibit shows how six groups used the five freedoms of the First Amendment to lay claim to the liberties promised in our founding documents. Sojourner Truth’s use of religious tenets to convince President Lincoln and others that slavery was a moral wrong punctuates our abolition kiosk, and Barbara Johns, a sixteen-year-old high school student in Farmsville, Virginia, led a student strike at her segregated school and ultimately found her case merged with four others in what would become the landmark Supreme Court decision Brown v. Board of Education (1954). The “separate facilities are inherently unequal” decision was the linchpin of the Civil Rights Movement and is featured on a kiosk devoted to this defining moment in American history.

Lastly, we invite you to participate in our upcoming February programs focused on African-American themes, such as a discussion on Jean Baptiste Pointe DuSable, founder of Chicago. Check out the “What’s Happening?” section of this newsletter to learn more.