Wednesday, March 14, 2018


Today millions of students (I assume, it seems like it's basically nation wide so, let's go with that) will participate in an organized response to school violence with the #WalkOut protests. Many will be happening even as I write this. There is no shortage of conversation on this topic, both in our homes and on social media. In reading a friend's post, and the interesting replies, it was clear that while we might have opinions on what kids should do (what else is new) we might not fully grasp the First Amendment issues that underly how schools have to respond to these sorts of demonstrations and student political speech.

First let's break down what's happening. We have a huge organizing of students, mostly by students, to walk out of class and the school building to demonstrate frustration with school violence and the underwhelming response by the adults charged to protect the safety of these very students. For clarity, these are not “millennials” either. These are the next generation. And one day, soon, they will vote.

There has been a sort of counter movement to #WalkUp rather than #WalkOut, which is aimed at focusing the energy on loving each other and avoiding the division. That's great, and can be done simultaneously, but the point here is that adults are bickering over what these kids aught to do. What they should do. At least, what we think they should do.

The problem? Students are perfectly allowed to demonstrate with political speech, even during school hours, so long as it is not unduly disruptive to the educational environment. We don't actually get to decide if they can or not, and the kids are backed up by the Supreme Court on this one. It's not about if you like it or not, or if you support it or not. That doesn't matter. At all.

There are three useful cases to highlight here.

First, let's go over Board of Ed. Of Westside Community Schools v. Mergens, 496 US 226 (1992). In the Mergens case a group of students wanted to form an after-school club that was religious in nature. The school denied their club for several reasons, partly because the school feared it was a violation of the establishment clause and also because there was no faculty sponsor. The students, with help from their parents as you might guess, sued and eventually the case went to the US Supreme Court. In an 8-1 decision the Court held that the school could not stop a non-curriculum club from forming based on it's content and that the club was no different than a political club for purposes of the Equal Access Act.

Here we have a clear example of students banding together for non-curricular speech and association, much like the #WalkOut groups.

Second, we can look to Tinker v. Des Moines Independent CommunitySchool District, 393 US 503 (1969).  The Tinker case is (or least should) be part of every educator's basic understanding of student's rights. In Tinker, a group of students elected to wear black arm bands to support a truce in the Vietnam War. The school district's leadership tried to institute a policy to stop students from wearing arm bands, threatening suspension. The school lost, and to use a term from the President, the school lost, biggly.

In a 7-2 decision the US Supreme Court held that the arm bands were pure speech and that students do not lose their right and protection under the First Amendment just by stepping onto school grounds. Interestingly, that same opinion held that a school could punish students if the speech, or actions, would “materially and substantially interfere” with the schools activities. There is a pretty clear and logical argument that a mass walk out would materially and substantially interfere with the schools activities. But, that can be countered by this being a fairly short instance (17 minutes?) and that the walk out is about as pure of political speech as there can be.

Third we have a personal favorite, Morse v. Fredrick, 551 US 393 (2007). This case is also well known as the “Bong Hits 4 Jesus” case. Essentially, a senior showed up to the Olympic torch rally with a giant banner that said, you guessed it, “Bong Hits 4 Jesus” on it. Citing the Tinker case, the ten day suspension for the student was upheld as being in violation of the schools policy against promoting drug use. Funnily enough, when asked if it was a political message, the student originally said it was not. So, even though later the Tinker protection was used in appealing the punishment, the student had already admitted the point of the banner wouldn't have qualified under Tinker.

Here we have inherently political speech that, at least in a vacuum, clearly qualifies under the Tinker protection for student speech, but we have the very real and obvious argument that even so it may violate Tinker by being too disruptive. But, the Morse case didn't overrule Tinker either. Just helped clarify limitations.

It's a balancing act for these school, the teachers, and the administrators. Do you punish a huge (probably a majority) of students with suspensions or, instead, do you simply organize the day to allow for the demonstrations?

Most schools seem to be opting for the organization approach, without taking a stance one way or the other (smartly) on the message, but rather keeping something that will happen any way under control. It's hard. It's easy to just get mad at a bunch of kids and want to tell them to sit down and learn, but for all of the time spent trying to get kids to just engage in the lesson it seems a great chance to do just that. Asking them to do otherwise is counterintuitive, and expects them to suspend their ability to think and reason and just sit and do as they are told. I'm married to an educator and I know the task is monumental. There will always be unhappy parents in a situation like this, no matter what the school does, but in this instance it's not the parent's political views or the parent's speech at issue, but rather the children's.

I don't have a student in school yet. My oldest is three. He's already figured out that “just do as your told” is really just adult code for “I don't have a reason other than your a kid and I'm not” and that just doesn't fly very well. I imagine by the time he's 13 or so telling him to just turn off his brain and learn, as many seem to want to do, isn't going to work too well either. Which is good. I hope my children are able to think and reason for themselves and that their learning environment is able to foster more than just rote memorization and ability to follow directions. School structure is important but our kids are also citizens of this country and their liberty doesn't stop at the school's driveway.

Wednesday, January 31, 2018


Before you read on, know this:  This isn't "about" Donald Trump. It's about where I hope we can go in the future.

     January 30, 2018 was, for better or worse, a significant day. It was be the day that President Donald J. Trump, the 45th President of the United States of America, gave his first State of the Union address. For any Presidency that first time is important. For this particular administration it's monumentally important, though based on early returns it seems ratings were down. I, for one, didn't watch it. But I want to be clear here: It had NOTHING to do with not wanting to hear Donald Trump speak, or that the President was a Republican. Nothing at all.

So the question is, why didn't I watch?

Simply put: Spectacle. Whether you couldn't wait to see what Trump has to say because finally we have a true patriot American in the White House, or if the only reason you watched was because you just know he's going to sound like an idiot, you were watching for the exact same reason. It's fantastic television. It's political theater at the highest of levels, the President giving a road map of both his administration's vision for the coming year and an assessment of how things have been going for the previous year.

It's a pep rally for the people who agree with the President and a chance to yell at the Television for those who don't.

Over and over and over I'm having the same conversation with people. We all say the same thing, that we're tired of partisan politics, we're tired of the games, tired of the show. Then, what do we do?

We watch. We cheer for our team. We boo the other team. We hope for failure and pray for implosion when the other team is in power and we wait with anticipation for the amazing achievements of our own team.

We are totally convinced that the officials tasked with the rule enforcement (the Refs, so to speak) are ALWAYS on the side of the other team, and they NEVER help our team. Ever. Even if our team gets a good call, it's just human error, that stuff happens... surely the Ref wasn't actually trying to help us, plus our team deserved it because the other team is evil. If the other team gets a good call... well... there is no shortage of Patriot's memes to explain how we react to that.

Look, I love politics. I'm a junky of sorts, but I agree with what so many are saying. I'm exhausted of having to try and hate one side and love the other no matter what they do. What's more, WE DIDN'T USE TO BE LIKE THIS. This was done to us by the very people we've been electing because we've LET THEM do it!

Think about this:

Two groups of football players will play in the Super Bowl in a couple of days. Both teams will have the same number of players, most of the same positional spots filled, and supporting staff. Both teams will have a head coach, an offensive & defensive coordinator, and the rest of the coaching staff. Both teams will have medical trainers. Both teams will have fans. Both teams will have the EXACT same goal, to score the most points and win the game.

So, what's the difference between these two teams? One will be from New England, the other from Philadelphia. The players are from all across the country, and some are even from other countries. Very few of them will actually be FROM the towns and regions they play for. But, they wear the jerseys & the colors of “their” team. So, they play for that team. They think the other team is terrible and should always lose. They think their own team is the best and should always win. They love their fans (their fans are the best of all time) and they think the other team's fans don't understand what makes their team so special. This team is destined to win because they are just better, plain and simple.

Sound familiar?

Politics has become a sporting event. It even has a gambling market, just like sports. You can pick winners and losers. CNN is basically ESPN for politics. Highlights, a few journalists and some people who used to “play the game” sitting at a desk hyper analyzing every thing that happens for 24 hours a day. 

The problem is that football and politics shouldn't be so similar. It shouldn't feel the same. The winner and loser of the Super Bowl can be important to the players, even the cities their teams come from. But how does it impact the Country? Almost not at all. It doesn't change the tax rate, it doesn't impact health care policy, it doesn't impact national defense or international relations.

It's just a game, football. But, politics? Shouldn't it be more than a game? Shouldn't we treat it differently? Instead of unwavering allegiance as fans, shouldn't we instead be engaged and informed citizens demanding the most of our elected officials and government? Shouldn't we make sure we elect the right people to the right positions instead of picking our favorite team? Is it better to vote for someone because they are wearing a certain colored jersey, or have the right letter (D or R) next to their name, instead of voting for someone that can actually do the job well?

At least in sports when a player isn't any good they are cut, or traded. And what do we hear about that? It's a business, and loyalty isn't as valuable as a younger and better player at a lower cost. Sports franchises don't pick their players based on what team the player wants, they pick the best players that can actually do the job well.

That's why I didn't watch the State of the Union this year. It's not about being anti-Trump, or even anti-Republican. It's about being anti-spectacle. It's about demanding more from those in whom we place the sacred public trust.

It's a small step and I'm only one person, but it's something we can all do regardless of party affiliation. Ignore the show. Ignore the spectacle and instead invest in what the government is actually doing. Start ignoring the D or R next to the name and start concentrating on the substance of what they are doing and saying. Focus on the results of their actions. Pay attention to the promises they make and keep, and the ones they make and fail to keep.

It's a small first step, but it's one we can all take. Let's watch the Super Bowl because it's entertaining, and because it's supposed to be entertaining, and let's send a loud message to ALL of our elected officials: This isn't a game.