Contrast the commendable ruling in Safford with the outrageous decision in Morse v. Frederick, in which the Court held that an adult student, not enrolled in school that day and not on school grounds, essentially has no First Amendment rights, because — "OMG drugs!"

What I found disappointing in the decision, however, was the total failure to critically review the claim that there was any legal basis to search the 13-year old girl at all — let alone by strip search.

The only basis for school officials to suspect Redding was because a fellow student — already caught with contraband "OMG drugs" (i.e., ibuprofen), therefore already in trouble, and with a prior disciplinary record that surely negates any credibility she might have, fingers a classmate ("they must be hers").

How is that "probable cause" to conduct any search, let alone a strip search? How does a busted delinquent trying to dig herself out of a disciplinary hole satisfy the "totality of the circumstances" test of Illinois v. Gates?

(Recall also that Gates lays down the criminal standard for basing probable cause on an unreliable witness. Safford was not a criminal case, but only a "school policy" case. If the police could not have strip-searched Redding based only on a non-credible fellow student's account, then how could school officials possibly do so?)

The Court got it exactly right in its recognition that "strip searches ought to be different." What it got wrong is its refusal to recognize that "school searches ought not be different."

Finally, another tweet of mine:

Thomas, whom the stupid wing of the libertarian movement adore for some reason, again opines that children have no rights in school. kthxbye

In loco parentis might — might — not be an insane educational policy if — if — school were voluntary.

But to compel government-run, or at least government-regulated, education (i.e., to negate parental control), and then turn around and suggest, as Thomas does, that schools should be allowed to exercise full parental control, is so overtly self-contradictory that it is hardly surprising that no other Justice even bothers to respond to it.

The case is Safford Unified School District #1 v. Redding, No. 08–479 (June 25, 2009) (PDF – 44 pages).

Previously:
–Linkfest: Two "School as Prison" Anecdotes
–Linkfest: Supreme Court Roundup

—

Regarding Ricci v. DeStefano, yet another tweet:

It's a funky day indeed when I agree wholeheartedly with Justice Scalia. Not since Kyllo perhaps.

The Court resolved the reverse discrimination case under Title VII of the Civil Rights Act of 1964, rather than under the Equal Protection Clause. Which is to say that the Court ignored the pesky fact that Title VII, as invoked in this case at least, is patently unconstitutional.

As Justice Scalia put it:

The Court's resolution of these cases makes it unnecessary to resolve these matters today. But the war between disparate impact and equal protection will be waged sooner or later, and it behooves us to begin thinking about how — and on what terms — to make peace between them.

The best "peace" would of course be to acknowledge the plain language of the Fourteenth Amendment and concede that overt reverse racial discrimination in the name of eliminating (real or imagined) covert racial discrimination is — ahem — racial discrimination and therefore proscribed under the Equal Protection Clause. Disparate impact can never be the justification for disparate treatment — it's downright Kafkaesque. Two statutory wrongs do not make a constitutional right.

Finally, this was too long for me to tweet, so I had to post it to my Facebook instead:

Ginsburg's claim that there was no discrimination, because "everybody's score was equally discarded" is as disgraceful and disgusting as saying that there is no anti-gay marriage discrimination, since gays can equally marry someone of the opposite gender. Absolutely outrageous. Shame on her.

More on that today from George Will.

The case is Ricci v. DeStefano, No. 07–1428 (June 29, 2009) (PDF – 93 pages)

Previously:
–No Gender Left Behind

A 14-year-old Wisconsin girl who refused to stop texting during a high school math class was arrested and charged with disorderly conduct, according to police. The teenager was busted last Wednesday at Wauwatosa East High School after she ignored a teacher's demand that she cease texting. The girl … initially denied having a phone when confronted by a school security officer. However, the phone was located after the girl was frisked by a female cop. The Samsung Cricket, the police report noted, was recovered "from the buttocks area" of the teenager. The student was issued a criminal citation for disorderly conduct, which carried "a bail of $298," and had her phone confiscated.

Whatever happened to, "go to the principal's office"? Whatever happened to, "please come to the school to pick your child, who has been suspended"? Whatever happened to, "some incidents simply do not rise to the level of probing a 14-year old girl's buttocks for a cell phone" (not a weapon, not drugs — a cell phone)?

Are teachers these days really such weaselly wimps that they must call the cops to subdue every smart-aleck (but utterly harmless) brat?

Previously:
–Kids in Cuffs: 8-Year Old Aspie Charged With Battery
–From "Kids in Cuffs" to "Kids in Padded Cells"

A special subset of this phenomenon is what I call "Kids in Cuffs," the unconscionable notion that mundane unruliness by small children in a school setting can ever require police intervention — let alone arrest, handcuffing or especially tasering.

It's time to revive that category:

The mother of an 8-year-old autistic girl who was arrested after a scuffle with her teachers said it was horrifying to watch her daughter be led away in handcuffs from her northern Idaho elementary school.

Police in Bonner County, Idaho, charged the girl, Evelyn Towry, with battery after the arrest Friday at Kootenai Elementary School.
…
Spring Towry said she got to the school Friday just in time to see 54-pound Evelyn — who was diagnosed at age 5 with Asperger's Syndrome, a high functioning form of autism — being walked to a police car with two officers at her side.

"She started screaming 'Mommy, I don't want to go! What are batteries? What are batteries?'" Towry said. "She didn't even know what she was arrested for."

The battery charge was promptly dropped. That leaves unanswered the precedent question of how teachers could demand, and police carry out, the arrest of any child (with Asperger's or otherwise) too young to have any culpability for any criminal act. No child that young can form the criminal intent necessary to be found guilty of battery.

If — and it's a big "if" — police intervention is necessary in a school setting to restore order, then so be it: let the police "restore order" — until the parent can arrive to take the disruptive student home. Let the school mete out disciplinary or other corrective action as appropriate.

But for (sometimes literally) crying out loud, leave the cuffs in the holster and keep 8-year old kids, especially those with a little-understood and less-accommodated social disorder, out of Central Booking.

Via Popehat. More thoughts at Simple Justice, Arbitrary and Capricious, Asperger Square 8,

ITEM: The Supreme Court granted certiorari in an important students rights case:

School officials in Safford, Arizona, ordered the search in 2003 of Savana Redding, who was in the eighth grade. Following an assistant principal's orders, a school nurse had Redding remove her clothes, including her bra, and shake her underwear to see if she was hiding ibuprofen, a common painkiller.
…
The strip search had been prompted by an unverified tip from another girl who had Redding's school planner and some ibuprofen pills. She claimed Redding had given her the pills.

Redding denied it and an initial search of her backpack and pockets did not turn up any ibuprofen. The assistant principal then ordered the strip search to be done in front of the nurse and his administrative assistant, both women.

In fact, the girl had a previous record of illegally selling prescription-strength ibuprofen on school grounds.

There were, as is often the case with questions of constitutional rights violations, two sequential questions. First: Was there in fact a constitutional rights violation? Second: If so, then are the government officials entitled to qualified immunity (i.e., can they be held personally liable for their actions)?

The Ninth Circuit found a Fourth Amendment violation, which is not particularly controversial; the law regarding strip searches is well-established and quite demanding, even in prison settings, let alone a school. The appellate court also found, however, that qualified immunity did not apply and that the assistant principal is personally liable for ordering the search.

My initial guess is that the Supreme Court took the case because of the denial of qualified immunity rather than to revisit the propriety of the search itself. Piercing immunity is a very high hurdle that is rarely upheld: assistant principals, like police officers, are not lawyers and certainly constitutional law scholars. They tend to get the benefit of the doubt.

Therefore, I predict that the court will uphold the Ninth Circuit's 8-3 finding that the search was unconstitutional, but reverse the 6-5 ruling that qualified immunity does not apply.

The case is Safford Unified School District v. Redding, No. 08-479. My previous post on the case here.

ITEM: A federal district judge has ordered the release of a Guantanamo detainee, finding in a habeas corpus review that the government has no credible evidence against him:

Al Gharani was 14 years old when he was captured in Pakistan some seven years ago. He has been at Guantanamo since then. The U.S. government, in Judge Leon’s court, had relied mainly upon statements from two other Guantanamo prisoners who claimed that Al Gharani had stayed at a guesthouse in Afghanistan that was affiliated with the Al Qaeda terrorist network, had been trained at Al Qaeda military camps, had fought against U.S. and allied forces at a battle at Tora Bora in Afghanistan, and was a member of a terrorist cell in London.

Each of those contentions came from other detainees, Judge Leon said, and the judge found the statements inconsistent or unverified, and had no support from other evidence.

Without the Supreme Court's historic — and heroic — ruling in Boumediene v. Bush that wherever the United States Government goes, the Constitution goes with it, this "terrorist" would likely have rotted in Guantanamo indefinitely. But remember that the Bush Administration, to the bitter end, insisted that everyone at Guantanamo is "guilty" and a "terrorist."

The case is Gharani v. Bush, No. 05-429 (D.D.C., January 14. 2009) (PDF – 11 pages). My previous post on Boumediene here.

ITEM: The "exclusionary rule" requires courts to suppress evidence obtained from unconstitutional searches under certain circumstances. The Supreme Court recently eliminated one of those circumstances —

The Coffee County, Alabama Sheriff's Department apprehended Bennie Herring in July of 2004. Upon searching Herring's vehicle, officers discovered methamphetamine in Herring's pocket and a gun under the seat of his truck. However, the situation was complicated by the fact that the initial search had been made on a faulty arrest warrant. The warrant, still active in the neighboring Dale County Sheriff's Office, was supposed to have been recalled five months prior, however someone had accidentally failed to remove it from the computer system.

The Court held, 5-4, that mere negligence is not sufficiently culpable to trigger the rule:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

Others have already labeled Herring the "Barney Fife exception" to the exclusionary rule. My frustration with the reasoning is that it ignores the entire law of torts (i.e., that even "mere" and "non-recurring" negligence still warrants a remedy in the civil context, so why shouldn't it also warrant a remedy — the exclusionary rule — in the criminal evidence context as well?).

The exclusionary rule was misconceived from the outset. It has never been considered a constitutional right, but merely a tool to encourage responsible law enforcement. That logic has always been, and remains, absurd. "Free from unreasonable searches" means free from any and all fruits of unreasonable searches. An absolute, exception-free exclusionary rule is the only possible implication of the Fourth Amendment. It should have, as Justice Ginsburg suggests in her dissent, a "majestic conception" — just like the Fourth Amendment itself.

The case is Herring v. U.S., No. 07–513 (January 14, 2009) (PDF – 28 pages). You can peruse my recent Fourth Amendment posts here.

ITEM: When science class becomes "forensic science" class —

A science teacher at Comstock Middle School [in Dallas] is accused of trying to use a little bit of science to track down her missing belongings.

"She said some of the students took her cell phone and credit cards but she didn't know who it was. She told us she was going to fingerprint us," said student Savannah Seal.

Savannah says the entire 7th grade class was told to fill out background check forms with their names, addresses and parent information.

Then the teacher went around with an ink pad and had students fingerprint the bottom of the form.

MY TAKE: The teacher, who was not identified in the news account, was "administratively disciplined" according to school officials (whatever that means). In any event, putting aside the legal questions (i.e., Fourth and Fifth Amendment violations, tortious battery, intentional infliction of emotional distress, etc.), we also see here some great civics lesson added to this science class' curriculum: you are guilty until proven innocent, anyone in authority can do anything they want to you, privacy does not exist, and so on. (Via Fark.)

—

ITEM: What's the going rate on a student's dignity these days? Apparently forty dollars —

Monroe [Michigan] police are investigating the alleged strip search of three seventh grade female students at Trinity Lutheran School by a female teacher looking for missing cash.

"It doesn't seem appropriate, let's put it that way," Monroe Deputy Police Chief Thomas Moore told the [Detroit] Free Press today[.] But our county prosecutor will decide if anything illegal occurred."

The three girls were allegedly strip-searched last Wednesday. A parent of one of the children then complained, within a day of the incident, Moore said.
…
Moore said between $30 and $40 had gone missing from a class where the girls were present.

MY TAKE: You can write your own commentary about the deputy chief's sloppy shorthand statement that the prosecutor (as opposed to a jury) will decide whether anything illegal occurred. One would also hope that the previously cited "administrative discipline" might be in the cards, along with civil lawsuits, if the incident occurred as the three girls insist it did.

Meanwhile, even adults in a criminal setting have a higher expectation of privacy where a strip search is proposed. As a circuit court recently held in another student strip search case:

The feelings of humiliation and degradation associated with forcibly exposing one's nude body to strangers for visual inspection is beyond dispute. As the Tenth Circuit has explained, the experience of disrobing and exposing one's self for visual inspection by a stranger clothed with the uniform and authority of the state … can only be seen as thoroughly degrading and frightening.

–Redding v. Safford Unified School District #1, No. 05-15759 (9th Cir., July 11, 2008) (PDF – 75 pages) (internal citations and quotations omitted) (background here).

And if there is one power imbalance greater than a suspect facing "a stranger clothed with the uniform and authority of the state," it's a school-aged child facing her teacher.

I found this hilarious:

For the last several years, the Religious Right has been complaining about GLSEN's annual "Day of Silence" in which students pledge to "be quiet all day to protest the discrimination, harassment and abuse — in effect, the silencing — faced by lesbian, gay, bisexual and transgender students and their allies in schools."

Among those most active in fighting the "Day of Silence" has been the Alliance Defense Fund which launched its own counter mobilization effort called "The Day of Truth" because, as they see it, "the Day of Silence is a misnomer, because what is truly being silenced is the Truth."

Ignore for the moment the pesky fact that the Day of Silence folks advise participating students not to press the issue in the classroom setting itself, unless the teacher is willing to accommodate it (for a student to refuse to answer a question is, somehow, considered "disruptive" and therefore not entitled to First Amendment protection as originally laid down in Tinker v. Des Moines). That's another blogpost.

Ignore also the equally pesky fact that the "Day of Truth" is no way the "equal and opposite" response to the Day of Silence. The messages, "we face obstacles" and "you are sinners" are not equal and opposite and are not entitled to equal standing in a school setting, as the bigots would have you think:

"Unlike the Day of Silence, on which students are supposed to refuse to speak to teachers and school administrators, the Day of Truth does not call for students to engage in activities which are likely to disrupt the school's academic mission," [the ADF's CEO] explained. "It is a day to speak the truth in a polite, winsome, and attractive manner, not a day to cause hardship."

The ADF's idea of "polite, winsome and attractive" is, incidentally, to hand out cards summarily accusing all gays of — their words — "detrimental personal and social behavior."

In any case, it is beyond perverse to suggest, as the bigots do, that highlighting the existence of a hostile environment (the Day of Silence) is the functional equivalent of creating a hostile environment (the Day of Truth).

(This was also the horrendous error the noteworthy — "notorious" is a better word these days — Seventh Circuit judge Richard Posner made in a recent "anti-gay t-shirt" case.)

Anyway, here's what you shouldn't ignore:

On October 21st, people from all over this nation will give up their voices for a day in solidarity for these [unborn] children. Red arm bands and duct tape will identify them as taking part in the Pro-life Day of Silent Solidarity. They will carry fliers explaining why they are silent and educate others about the plight of the innocent children we are losing every day.

But surely this "Day of Silent Solidarity" is not meant for students in a school setting, right? That would be "disruptive," right?

We need to keep track of how many people participate and how many schools are involved with the event. The only required information is your school name and state.
…
We suggest that you talk to your school staff and let them know that you will be participating in this day. You have a legal right and the school cannot stop you from doing this or from distributing the flyers.

The event is not only targeting schools, it is exclusively targeting schools. Go figure.

And for students who choose to elevate their principles above the interests of the greater school community?

If your school harasses you about participating in the Pro-life Day of Silent Solidarity we can help you. The lawyers at the Alliance Defense Fund have put together a letter for you which explains your rights.

So when pro-life students participate in a day of silence, ADF's focus is on supporting "your" rights. But when anti-bigotry students participate in a day of silence, ADF's focus is on opposing "special" rights. Go figure.

When they say it's not about bigotry, they lie.

In the almost forty years since Tinker, we have seen that noble principle chipped away, piece by piece, via "exceptions," "competing interests" and "balancing tests," culminating in the Supreme Court's Kafkaesque holding in Morse v. Frederick, 127 S. Ct. 2618 (2007), that not only do students indeed shed their constitutional rights at the schoolhouse gate, but actually shed them long before they ever reach that gate: that they forfeit their rights merely via their status as students, and that even an 18-year old adult, not enrolled in school that day, not on school grounds and not taking part in a school function, could still be disciplined by school officials for his expressive conduct.

I therefore don't know whether this is a good sign or a bad one, but the evisceration of students' free speech rights has progressed so malignantly that one appellate court had to practically reinvent the wheel — literally down to the original Tinker fact pattern itself:

In the summer of 2006, the school district implemented a mandatory school uniform policy[.] The policy required students to "wear the school uniform while in school, on school buses, and at designated school bus stops." Paragraph 17 of the policy stated that "any attempt to defeat the uniformity intended by this policy is prohibited."

Several students and parents opposed the policy or the way it was enforced, and some of these parents and students organized a protest. On September 30, 2006, these parents and students handed out black armbands to be worn to school in protest of the policy on October 6, 2006. On that day, several junior and senior high school students wore the black armbands but did not wear them over any part of the school uniform. The school construed the student's conduct as an attempt to defeat the uniformity intended by the policy and disciplined the students who wore the armbands citing their violation of the uniform policy.

The choice of black armbands as a symbol of protest was of course not arbitrary: It was the same form of expressive conduct (i.e., speech) that was at issue in Tinker 39 years ago.

The students sued to challenge the disciplinary action, and of course won. On appeal, the educrats came up with a "creative" (i.e., totally disingenuous) argument that Tinker ought not apply:

Defendants attempt to distinguish Tinker by emphasizing that the Tinker students protested the federal government's Vietnam war policy, whereas here the protest object was merely a school dress code. This distinction is immaterial. Whether student speech protests national foreign policy or local school board policy is not constitutionally significant.
…
We find defendants' attempts to meaningfully distinguish Tinker unconvincing. We hold that Tinker is so similar in all constitutionally relevant facts that its holding is dispositive.

Exactly right. As I've noted in other contexts, it is often the local governmental unit — especially the city, county or school district — that tends to behave tyrannically in matters of free speech and other fundamental rights. The right, and the need, to protest local abuse of power is no less urgent (and sacrosanct) than the right, and the need, to protest the federal government.

One post script:

Next, defendants argue that because plaintiffs only received nominal damages they should not receive attorneys' fees, or at most, a very small amount — in essence defendants argue that plaintiffs' victory was merely technical or de minimis.

The First Amendment is "de minimis"? Guess again:

Although plaintiffs received only nominal damages, their victory was not merely technical. Plaintiffs obtained an injunction that benefitted all of the students in the school district, and the free speech right vindicated was not readily reducible to a sum of money.

Bottom line: Taxpayers yet again on the hook because activist legislators (or in this case educrats) refuse to acknowledge the Constitution and unambiguous case law. The bill this time: $37,500, plus expenses and interest; see related posts here, here and the third item here.

The case is Lowry v. Watson Chapel Sch. Dist., No. 07-3437 (8th Cir., September 2, 2008) (PDF – 21 pages) (Via School Law Blog.)

—

Elsewhere:

Milford's school board [Connecticut] has adopted a new policy that students are subject to breath testing for alcohol at school functions.

Under the policy, students entering a public school-sponsored dance will have to take a Breathalyzer test. The policy has been adopted as an effort to cut down on teen drinking.

The policy also allows school administrators to test individual high schoolers during the school day if there's reason to suspect they've been drinking alcohol.

School officials say if a student refuses to take the Breathalyzer, the student could be suspended for 10 days.

As I noted in a post on a similar rights-infringing policy in New Jersey back in January 2007:

From the narrow fact pattern [of drug testing student athletes], the Court's reasoning quickly imploded. Suddenly it went from athletics to all extracurricular activities (but how much harm can a stoned chess team do to themselves?). Suddenly a carefully crafted exception became a mere reasonableness test — reasonable to be defined, of course, by the school administrators. From "this and only this" to "whatever you feel like."

From "not shedding rights at the schoolhouse gate" to "shedding rights at the prom door." Splendid.

Previously:
–War on Drugs Now Trumps First Amendment
–Morse v. Frederick Already Being Abused
–Posner's Morse Error in the Anti-Gay Shirt Case
–Stitch in Haste Podcast #001
–The School as Breathalyzer
–School Tries to RFID Students Without Parental Consent

The movement called the Amethyst Initiative began quietly recruiting presidents more than a year ago to provoke national debate about the U.S. drinking age, which is among the highest in the world.

"This is a law that is routinely evaded," said John McCardell, former president of Middlebury College in Vermont who started the organization. "It is a law that the people at whom it is directed believe is unjust and unfair and discriminatory."

The pragmatic "cost-benefit analysis" aspect of lowering the drinking age — whether generally, for college students only, or on college campuses only — does not particularly interest me (though I did leave a brief comment on that theme at Market Power). Instead, I am (and have long been) far more interested in the political anatomy of the 21 drinking age.

I blogged about it back in April 2007, in a post titled Twenty Forever? (Or: "Footnote Fourfeit?").

—

George Will had a column critiquing the nationwide 21 drinking age:

18-year-olds have a right to marry, adopt children, serve as legal guardians for minors and purchase firearms from authorized dealers, and are trusted with the vote and military responsibilities. So … it is not unreasonable to think that they can, with proper preparation, be trusted to drink.

Nothing new there — although the proposal that 18- to 20-year olds could, after completing appropriate classroom instruction, obtain "drinking permits" akin to automotive learner's permits is new (and sensible) to me.

The illogical and heavy-handed federalization (via highway funds) of drinking age laws serves as a classic libertarian poster child for the nanny state and the warm-fuzzy-feeling elevation of political expediency over rational statecraft. It's also a great recruitment tool to initiate discussions with young people about libertarianism in particular and politics in general. Again, nothing new there.

I on the other hand like to use the federalized drinking age in another way: as an example of how insular minorities suffer under majoritarianism.

The group "18-, 19- and 20-year olds" are fully participating members of our democracy; they have as much access to the political process as anyone else. There are rich 18-year olds, there are educated 19-year olds, there are well-connected 20-year olds.

Yet the group as a whole is and will always be a political minority. They will always be at the mercy of the majority. If the majority acts in a fair, enlightened manner, then of course the group has little to fear.

But that's a mighty big "if."

Which is precisely why unbridled majoritarianism — "democracy" — fails groups such as "18-, 19- and 20-year olds." And which is precisely why the admittedly "undemocratic" but no less enlightened check-and-balance of judicial review — "activist judges" — is so vital in a society that seeks to be pluralistic, just and free.

Of course, there's an added twist to the specific example of the federalized drinking age: people aren't 18-20 forever. They graduate out of the insular minority. That mitigates the failure of majoritarianism, but it doesn't eliminate it. "You'll be 21 someday…" [as Chicago mayor Richard Daley arrogantly dismisses] is not a legitimate response to irrational age-based discrimination.

Now imagine how much worse the inequity is when an individual is permanently part of the insular minority. Imagine how unjust the federalized drinking age would be if some people were 20 forever. In such a world, the failure of majoritarianism, the injustice of irrational discrimination, is neither temporary nor insignificant.

Such is the struggle for gay rights.

Gays and other sexual minorities are the last yet-to-be-vindicated insular minority. The last group to be casually and insolently dismissed with a curt wave of the populist hand. "The people have spoken." "The will of the majority." "The democratic process in action." Ignorant bromide after ignorant bromide.

This is precisely what judges are supposed to prevent. If nothing else, if no other individual right is to be protected, if government is to be in no other way curtailed, judges are at least to do this much: protect insular minorities from the tyranny of the majority –

There may be narrower scope for operation of the presumption of constitutionality when legislation appears on its face to be within a specific prohibition of the Constitution, such as those of the first ten Amendments[.]
…
Nor need we enquire whether similar considerations enter into the review of statues directed at particular religious…or national…or racial minorities; [or] whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call for a correspondingly more searching judicial inquiry[.]

That's from the "most famous footnote in history" — Footnote Four from U.S. v. Carolene Products, 304 U.S. 144 (1938).

Libertarians tend not to like Carolene Products, because it was one of a number of "nails in the coffin" regarding judicial non-review of economic regulation. Still, Footnote Four can be viewed as a "half-full, half-empty" redemption. It essentially said: "No matter how much we judges emasculate ourselves, there are some lines we simply cannot let the legislature cross. We must, if nothing else, remain the last, best defenders of insular minorities."

Except for gays.

On questions of gay rights, especially same-sex marriage, court after court has cowered at the roar of the masses. When it comes to protecting fair, rational and equal treatment for gays, even Footnote Four seems dead.

The new mantra is not "judicial review" but "judicial deference." Not "checks and balances" but "check for legislative intent." Not "equal protection" but "equal abdication."

Will it always be thus? Hopefully not. Probably not. Gays will always be a political minority, but "gay friendlies" will not. Eventually there will be sufficiently large constituencies of disgust at anti-gay bigotry that either legislatures will accommodate them, or judges will be unable to ignore them.

That sort of "trickle up" victory is of course small consolation and wholly unacceptable. But for now it's all gays are going to get.

—

As for the drinking age, see the following relevant posts:

–On Special Exemptions to the Drinking Age (June 1, 2005)
–The Politics of the Warm Fuzzy Feeling Smoking Age (May 9, 2005)
–New Jersey to Raise Smoking Age (January 10, 2006)

ITEM: The federal government continues its futile, warm-fuzzy-feeling efforts to censor the Internet in the name of "protecting children." The Child Online Protection Act, enjoined by the Supreme Court in Ashcroft v. ACLU, 542 U.S. 656 (2004) (a/k/a "Reno II" — and yes that's "Reno" as in "Janet" from way back in 1998) is again before the Third Circuit, where the Justice Department must convince the court that:

• the availability to parents of built-in content filters
• the fact that U.S. law cannot reach online porn posted overseas anyway
• the fact that COPA "does not cover chat rooms, You Tube and other interactive sites that emerged in the last decade"

are all somehow irrelevant and that age verification ("a belt and suspenders approach" according to the DOJ lawyer arguing the case) is the "least intrusive way" to achieve the law's stated goals. Expect the court to yet again find the law unconstitutional. Flagship post here.

—

ITEM: Here's an incident where the censors claim not to be protecting the children but rather the parents —

In the short walk across stage, Joseph Bryan Shore, 18, elicited more than boos when he allegedly cursed out his family and flipped the bird to the crowd, according to authorities. Immediately after the [high school graduation] ceremony, two police officers took him into custody and charged him with disorderly conduct.
…
The principal of Arab City High School, Patrick Crowder, said he regretted the incident but that he had no choice other than to have Shore arrested.

MY TAKE: The principal "had no choice"? Over a few moments of some profanities and the finger — both of which are unambiguously protected free speech, even in "dignified" (the principal's term) settings such as, e.g., a courthouse? Without more, this sounds not only like a improper arrest but also a civil rights violation that would survive a qualified immunity challenge. (Related late entry here — it is graduation season, after all.)

—

ITEM: Let's switch from "commencement and freedom of speech" to "commencement and freedom of religion" —

Newark Public Schools has settled a lawsuit filed by a former student who claimed he couldn't attend his graduation from West Side High School because it was held in the sanctuary of a local Baptist Church.

Bilal Shareef, a Muslim student, said his religious faith prohibited him from entering a building with religious icons, such as pictures of God or images of the cross. He skipped the ceremony held at New Hope Baptist Church in June 2006.
…
The district also agreed not to sponsor or promote religious events, not to hold student events in places of worship and not to hold student events in other religious buildings unless religious images are covered.

MY TAKE: It is beyond absurd to suggest that a public school district as large as Newark's cannot find suitable secular locations to hold high school graduations and therefore simply "must" have them in churches. If all else fails, then have them at the schools themselves — that's where mine was held. I don't buy the "no other suitable site" excuse for using churches as polling places, and I don't buy it here. (Via Religion Clause.)

—

ITEM: And will students be reading about such stories in the school newspaper?

A high school newspaper in Northern California has been disbanded after it published a front-page photo of a student burning an American flag, triggering criticism that the administration was stifling free expression.
…
The Redding controversy is the latest example in recent years of high school and college administrators in California attempting to censure [sic] student-run newspapers or punish those who oversee them.

MY TAKE: I always tread lightly on this topic, since I am not convinced that there is a "right to a (taxpayer-funded) school newspaper." And no student was disciplined or penalized for exercising her free speech rights (cf., the Doninger case I recently updated here). But the fact that the topic that resulted in the newspaper's termination — flag burning — is itself protected expression and generates so much faux indignation by activist legislators and other anti-rights malcontents certainly gets my libertarian dander up.