Comments on: New Supreme Court Opinions

New Supreme Court Opinions

dios — Mon, 25 Jun 2007 10:15:51 -0800

A very big day for the Supreme Court. In Morse v. Fredrick, the Court ruled that a school could suspend a child for holding up a "Bong HiTs for Jesus" banner. (Previous post here). In Hein v. Freedom from Religion, the Court held that taxpayers lacked standing to challenged Faith Based Initiatives (previous discussions). In Wilke v. Robbins, the Court held that land owners do not have Bivens claims if the federal government harasses landowners for easements. In FEC v. Wisconsin Right to Life, the Court held that the portion of the campaign finance law which had blackout periods before elections on issue advocacy advertising was an unconstitutional restriction of speech (other). This Thursday, the Justices will deliver their last opinions of the term, including a death penalty case and the school assignment cases. (Opinions are .pdfs)

By: dios

dios — Mon, 25 Jun 2007 10:19:28 -0800

One note that might be of interest on a point other than the legal merits, is that on page 52, footnote 5 of the FEC case, Justice Scalia takes a pretty direct shot at Justice Alito. This is not important in itself or in comparison to the importance of the opinion, but it does kind of reflect on the silliness of that "Scalito" talk back during confirmation. Surprise, they are different people! The previous threads are interesting in light of the new opinions, so check them out.

By: DU

DU — Mon, 25 Jun 2007 10:25:58 -0800

I'm sure it is completely coincidental that the freedom of speech cases that were decided oppositely both favored conservatives.

By: XQUZYPHYR

XQUZYPHYR — Mon, 25 Jun 2007 10:26:24 -0800

The dissent in the BongHits case is fantastic, in one of those sad, masochistic ways. It's depressing but funny at the same time that the dissenting Justices don't even feel like pretending what the Court's been turned into at this point. It's a worthy effort on their part to make sure the historical record indicates as many times as possible that John Roberts is simply a complete idiot.

By: gurple

gurple — Mon, 25 Jun 2007 10:27:29 -0800

Thanks for the headsup, dios. I had thought we'd get the Hein decision last week, and I forgot to check for it today. 5-4. <sigh> surprise. Now I get to slog through the whole thing. I'll be interested to see if the court somehow manages to leave the people any way to prevent the executive branch from using federal funds to build a church or a mosque or a temple. I'm sort of vaguely ill about this right now, but I'll try to RTFDecision before I get really angry about it. Americans United puts a brave face on it, but who are they kidding? It's a loss.

By: Blazecock Pileon

Blazecock Pileon — Mon, 25 Jun 2007 10:29:17 -0800

And to think all of this political activism now stems from a handful of activist judges in 2000.

By: mdonley

mdonley — Mon, 25 Jun 2007 10:30:39 -0800

Morse makes me angry, because Fredrick only held up the poster in conjunction with the TV crews present for the Olympic Torch Rally, outside of school - in fact, Fredrick hadn't even attended school that day. The idea that the public schools have some sort of extraterritorial control over a student's life outside of campus grounds is most odious, as is this little tidbit not often mentioned about the case, and as reported by AP in the NYT: Frederick, now 23, said he later had to drop out of college after his father lost his job. The elder Frederick, who worked for the company that insures the Juneau schools, was fired in connection with his son's legal fight, the son said. A jury recently awarded Frank Frederick $200,000 in a lawsuit he filed over his firing.

By: DU

DU — Mon, 25 Jun 2007 10:31:23 -0800

Also, is there a 25 word, non-head-assploding explanation for HowTF taxpayers have no say in myth-based funding?

By: gurple

gurple — Mon, 25 Jun 2007 10:36:36 -0800

Also, is there a 25 word, non-head-assploding explanation for HowTF taxpayers have no say in myth-based funding? No, actually. You have to have a special kind of mind in order to warp the American Constitution in such a way as to make this make sense. 2 + 2 = 5. However, in broad terms, it has to do with precedent set in a case called Flast vs. Cohen. The appeals court held that taxpayers have the right to challenge any religious use of federal funds under that decision. The Supremes just reversed that decision, saying that a taxpayer has to show personal harm. Just what in our system of government can stop the executive from using money for religion, at this point, I don't know.

By: WCityMike

WCityMike — Mon, 25 Jun 2007 10:37:08 -0800

Back in 2000, I always thought that the worst thing wasn't necessarily going to be Dubya but the Supreme Court justices Dubya appointed ...

By: dios

dios — Mon, 25 Jun 2007 10:38:16 -0800

The idea that the public schools have some sort of extraterritorial control over a student's life outside of campus grounds is most odious That's an odd ground to rely upon. Neither the Ninth Circuit nor the dissent made or relied on that argument. It is pretty clearly the case that he was subject to school restrictions.

At the outset, we reject Frederick’s argument that this is not a school speech case—as has every other authority to address the question. See App. 22–23 (Principal Morse); App. to Pet. for Cert. 63a (superintendent); id., at 69a (school board); id., at 34a–35a (District Court); 439 F. 3d, at 1117 (Ninth Circuit). The event occurred during normal school hours. It was sanctioned by Principal Morse “as an approved social event or class trip,” App. 22– 23, and the school district’s rules expressly provide that pupils in “approved social events and class trips are subject to district rules for student conduct.” App. to Pet. for Cert. 58a. Teachers and administrators were interspersed among the students and charged with supervising them. The high school band and cheerleaders performed. Frederick, standing among other JDHS students across the street from the school, directed his banner toward the school, making it plainly visible to most students. Under these circumstances, we agree with the superintendent that Frederick cannot “stand in the midst of his fellow students, during school hours, at a school-sanctioned activity and claim he is not at school.” Id., at 63a. There is some uncertainty at the outer boundaries as to when courts should apply school-speech precedents, see Porter v. Ascension Parish School Bd., 393 F. 3d 608, 615, n. 22 (CA5 2004), but not on these facts.

By: ROU_Xenophobe

ROU_Xenophobe — Mon, 25 Jun 2007 10:39:17 -0800

is there a 25 word, non-head-assploding explanation for HowTF taxpayers have no say in myth-based funding? If you want to sue, you need to show the court the harm that you've suffered so that the court can fix it. Having this harm is having standing to sue. It doesn't have to be a big harm -- Yoder went to the Supreme Court over two $5 fines -- but it has to be something real and connected to the claims you're making. The Court said here that just being a taxpayer, some of whose taxes go to stuff you don't like, is not sufficient standing in this case. It might be if we were talking about a legislative earmark, but we ain't.

By: Blazecock Pileon

Blazecock Pileon — Mon, 25 Jun 2007 10:44:59 -0800

Just what in our system of government can stop the executive from using money for religion, at this point, I don't know. Law-abiding, ethical Christians could make these unconstitutional activities stop, but there's nothing in the Bible that proscribes sweet, delicious pork. Dig in!

By: cavalier

cavalier — Mon, 25 Jun 2007 10:45:55 -0800

Do I read the opinion right that the Morse case seems strictly limiting to "advocating illegal drugs", and if instead one were to speak about drug policy "Legalize pot" or drug education "Pot slows you down", they'd be just fine? It seems bizarre to read "BONG HITS 4 JESUS" as an advertisement for drugs, but I guess that's how you roll when you mess with the jesus.

By: DU

DU — Mon, 25 Jun 2007 10:49:42 -0800

The Court said here that just being a taxpayer, some of whose taxes go to stuff you don't like, is not sufficient standing in this case. What about being the target of a myth-based program (or failing to be the target of the reality-based one it replaced)? Like, if I got an abstinence-only education, can I sue? Even if I never had any children, just for the fact that my head was filled with nonsense? How about if I have to live in a society that's been brainwashed by religidiots? Is that harm enough?

By: quarter waters and a bag of chips

quarter waters and a bag of chips — Mon, 25 Jun 2007 10:50:54 -0800

Another sad day for democracy. Thanks, SCOTUS, for these intelligent, decisive (5-4, 5-4, 5-4) rulings. America sucks more every day.

By: Falconetti

Falconetti — Mon, 25 Jun 2007 10:52:50 -0800

Do I read the opinion right that the Morse case seems strictly limiting to "advocating illegal drugs", and if instead one were to speak about drug policy "Legalize pot" or drug education "Pot slows you down", they'd be just fine? I think you are reading that right and if that is indeed the case, it is a pretty illogical distinction to make and only adds even more confusion to the line of school speech cases, rather than clarifying. The concurrences in Morse demonstrate how wildly divergent some of the opinions are in this judgment majority.

By: oncogenesis

oncogenesis — Mon, 25 Jun 2007 10:53:33 -0800

By: footnote

footnote — Mon, 25 Jun 2007 10:54:42 -0800

Cavalier - The problem is that the kid testified that there was no political subtext to the sign - he said he was just making a joke. It would be a harder case if he said he was objecting to drug policy with absurdist humor. But the worrying part is that the broad language of the case in fact does seem to allow school districts to ban speech relating to drugs, even about drug policy, if it seems to be "promoting" drug use.

By: dios

dios — Mon, 25 Jun 2007 10:54:57 -0800

Do I read the opinion right that the Morse case seems strictly limiting to "advocating illegal drugs", and if instead one were to speak about drug policy "Legalize pot" or drug education "Pot slows you down", they'd be just fine? Close enough. There is a substantial difference between political speech and speech and general. Political speech is more vigorously protected under the First Amendment because it is, arguably, the only speech that the First Amendment is directed towards. (Political speech is fundamentally necessary in a representative democracy, other speech not so much-so the argument goes). But this wasn't political speech; it was speech that was seen as "speech celebrating illegal drug use." And the kid's mens rea with regards to why he was saying it was not relevant to the issue. The issue is that, in regards to school, whether the message could be taken that way and therefore subjected to the schools prohibition against promotion of illegal activities. The school found it was. The Supreme Court held that the school's conclusion was not constitutionally impermissble.

By: XQUZYPHYR

XQUZYPHYR — Mon, 25 Jun 2007 10:57:45 -0800

Thanks, SCOTUS, for these intelligent, decisive (5-4, 5-4, 5-4) rulings. While I was joking about it before, there's actually a significance to the constant mentions in the dissents how these are illogical, partisan rulings. The obvious consequence of Bush making this the most partisan Court in history is that it's likely going to be the most overturned one as well. Ginsberg practically said flat-out in the PBA ruling that this was a decision so incorrect it'll be overturned within her own lifetime. As the fanatic anti-choice crowd has been emphasizing for years, it's a matter of the right case at the right time to overturn a previous Court's rulings. I predict the legacy of the Roberts court being one of faster-than-expected revision.

By: dios

dios — Mon, 25 Jun 2007 10:58:16 -0800

does seem to allow school districts to ban speech relating to drugs, even about drug policy, if it seems to be "promoting" drug use. posted by footnote at 12:54 PM on June 25 They are carving the salami thin, but you pretty much nailed it. If you are advocating the use of something that is currently illegal, then the school can regulate it. If you are advocating that the thing not be illegal, then there are other concerns. If you change it out of the drug context, it gets a lot easier. The problem is that the there is so much social baggage attached to the drug issue that is blurs the lines. If X is illegal, then promotion of X can be restricted.

By: dig_duggler

dig_duggler — Mon, 25 Jun 2007 10:58:32 -0800

Hmm, any SCOTUS scholars here know what the record for 5-4 decisions in a term is? I've only been paying vague attention but there appears to be a lot of them this go around...

By: quarter waters and a bag of chips

quarter waters and a bag of chips — Mon, 25 Jun 2007 10:59:46 -0800

I predict the legacy of the Roberts court being one of faster-than-expected revision. Unfortunately, it'll still take half a generation or more for this to happen.

By: matteo

matteo — Mon, 25 Jun 2007 11:04:13 -0800

Surprise, they are different people! true, one wants to kill Roe vs Wade and defecate on its corpse, the other just wants to overturn it

By: dios

dios — Mon, 25 Jun 2007 11:06:57 -0800

Another sad day for democracy. posted by quarter waters and a bag of chips at 12:50 PM on June 25 That's a curious reaction. Because the opinions do not reflect upon democracy in any way. The people can change the rules if they so choose. What the Supreme Court was arguably doing was dealing with the rules that were democratically established. Hmm, any SCOTUS scholars here know what the record for 5-4 decisions in a term is? I've only been paying vague attention but there appears to be a lot of them this go around... posted by dig_duggler at 12:58 PM on June 25 I don't have the numbers off my head, but you likely only to pay attention to the controversial opinions, and those are opinions which are more likely going to be split decisions. The vast majority of opinions are not 5-4. But on the controversial topics, I wouldn't say there are any more under Roberts than there were under Rehnquist. It's fairly common. The opinion was 9-0 in the Wilke case I linked above on some parts, 7-2 on other parts. All nine justices thought that the superintendent should not be liable in Morse v. Fredrick, they just split on the issues they focused on. If the opinion was more narrow, it could have been a 9-0. I would like to see Roberts demand more narrow grounds on his opinions.

By: jonp72

jonp72 — Mon, 25 Jun 2007 11:08:14 -0800

it does kind of reflect on the silliness of that "Scalito" talk back during confirmation. The right-wing public relations machine also gave the mainstream media and the American public a total snow job about how Roberts would not be divisive as a Chief Justice, but usher in a new era of consensus and 9-0 decisions. Instead, we get a whole lot of 5-4 decisions with a right-wing judicial voting bloc imposing its opinions on a minority of liberal justices.

By: mdonley

mdonley — Mon, 25 Jun 2007 11:12:43 -0800

@dios: Ah, didn't catch that. (In my petulance, I only read the dissent.) Thanks.

By: mullingitover

mullingitover — Mon, 25 Jun 2007 11:17:09 -0800

dios writes "The problem is that the there is so much social baggage attached to the drug issue that is blurs the lines." It's ironic that conservatives are most likely to fight against sane drug laws. You'd think advocates of smaller government would be all for a more rational, and less 'nanny state,' solution. Equally galling is their argument: it's because the government's job to watch out for the public's health and safety. This goes great with their opposition to universal health care.

By: three blind mice

three blind mice — Mon, 25 Jun 2007 11:17:18 -0800

Thus comes to an end any attempt at consensus on the Roberts Court. Nice try Johnny boy.

By: rakish_yet_centered

rakish_yet_centered — Mon, 25 Jun 2007 11:19:40 -0800

I'm not understanding "standing" The Constitution says "Federal-court jurisdiction is limited to actual “Cases” and “Controversies." (quoted in Hein) But to my eye, Scalia has changed the phrase "Cases and Controversies" to mean "Cases." “ Whenever the court talks about this issue (quoted in Hein) "A plaintiff must allege personal injury fairly traceable to the defendant’s allegedly unlawful conduct and likely to be redressed by the requested relief.” Allen v. Wright, 468 U. S. 737, 751. Pp. 6–8. they are talking about Cases, which is fine, but what happened to Controversies? Anyone understand this?

By: dig_duggler

dig_duggler — Mon, 25 Jun 2007 11:22:21 -0800

I don't have the numbers off my head, but you likely only to pay attention to the controversial opinions, and those are opinions which are more likely going to be split decisions.The vast majority of opinions are not 5-4. Well if by controversial opinions you mean ones reported on the news (or the news-ish websites like MeFi), then sure. Interesting to see what percentage this term were, but might have to go crunch some numbers. Also the record % would be interesting, but all that will have to wait til after work.

By: quarter waters and a bag of chips

quarter waters and a bag of chips — Mon, 25 Jun 2007 11:23:40 -0800

Wow, Ken Starr took the Bong Hits case pro bono. I knew that dumb cocksucker would fight freedom and democracy for free.

By: footnote

footnote — Mon, 25 Jun 2007 11:25:23 -0800

dios: But this wasn't political speech; it was speech that was seen as "speech celebrating illegal drug use." The problem is, by what standards does the school district get to decide that certain speech "celebrating" or "promoting" a certain behavior is disruptive? The opinion cites a bunch of social science evidence showing that drug use is B-A-D, and therefore promoting it is disruptive. But who gets to decide "badness"? Isn't that in and of itself a political question? And what is the relevant standard of review -- does the school district merely have a rational basis for deciding something is B-A-D and cannot be promoted by students? Why does the school district get to be the moral hegemon, when we're only talking about SPEECH, not conduct? What if I'm stuck in an abstinence-only "sex ed" class -- am I free to say that I don't believe that sex before marriage is B-A-D?

By: Bulgaroktonos

Bulgaroktonos — Mon, 25 Jun 2007 11:28:20 -0800

My understanding is that, outside of this one First Amendment context, "case and controversies" has always been read that way. Basically, that there has to be an individual with a particularized interest in the outcome of the case. This was how it was taught in my con law class by my fairly liberal con law professor. I don't know anything about the doctrine in the First Amendment context, so it was kind of surprising to me that this wasn't obvious, or that it was ever decided any other way.

By: dios

dios — Mon, 25 Jun 2007 11:30:35 -0800

Isn't that in and of itself a political question? posted by footnote at 1:25 PM on June 25 Yes. And it's one that has been resolved. Marijuana is illegal as per statute.

By: homunculus

homunculus — Mon, 25 Jun 2007 11:31:32 -0800

Bong Hits 4 Jesus: high court ruling's implications for online speech

By: footnote

footnote — Mon, 25 Jun 2007 11:34:58 -0800

Yes. And it's one that has been resolved. Marijuana is illegal as per statute. posted by dios at 2:30 PM on June 25 [+] [!] Right -- but think about a kid wearing a reggae shirt saying "legalize it" to school. What then?

By: damn dirty ape

damn dirty ape — Mon, 25 Jun 2007 11:35:45 -0800

The people can change the rules if they so choose. I thought the entire point of CFR is that "the people" can't change the rules because of the lack of money and influence they have in congress. The monied interests can. Gutting CFR guarantees "the people" can't change the rules.

By: quarter waters and a bag of chips

quarter waters and a bag of chips — Mon, 25 Jun 2007 11:35:53 -0800

It's highly debatable whether or not "bong hits 4 jesus" promotes marijuana use. IMO, SCOTUS got it wrong (which they've been doing surprisingly frequently lately!)

By: nervousfritz

nervousfritz — Mon, 25 Jun 2007 11:38:42 -0800

Would it have been alright to them if the sign had said "legalization for Jesus"

By: Blazecock Pileon

Blazecock Pileon — Mon, 25 Jun 2007 11:44:24 -0800

Frederick would have had a very big day, if only he had worn a "GOVERNMENT PORK 4 JESUS" t-shirt.

By: Challahtronix

Challahtronix — Mon, 25 Jun 2007 11:46:52 -0800

What about "Bong Hits 4 Satan"?

By: Mayor West

Mayor West — Mon, 25 Jun 2007 12:03:57 -0800

Admittedly, some high school students (including those who use drugs) are dumb. Most students, however, do not shed their brains at the schoolhouse gate, and most students know dumb advocacy when they see it. The notion that the message on this banner would actually persuade either the average student or even the dumbest one to change his or her behavior is most implausible. ... If this were a close case, the tie would have to go to Frederick's speech, not to the principal's strained reading of his quixotic message. (From the dissent XQUZYPHYR liked to above) Holy GOD... there weren't no dissents like that to read in my Con Law class a few years back. The moderate and left-leaning justices on the court now must be writhing in horror at the partisan bullshit that's now passing for judicial review. And, really, what's your option? You can't reason with these people, and you'll always be voted down, and if you resign in protest, Bush will find some other, equally unqualified idiot to take your position and really fuck things up. So... I guess you write scathing dissents, in the hope that in 20 years, when the conservative bloc retires, there will be a new group with enough sense to overturn all the ridiculous decisions made under the tenure of an incompetent high court.

By: prostyle

prostyle — Mon, 25 Jun 2007 12:10:20 -0800

The dissent is of the opinion that The Court ruled on two points, that the rights of students are not "coextensive" which those of adults and that fighting drug use amongst children is a "valid and terribly important interest." Stevens says, in part: "As to the first, I take the Court's point that the message on Frederick's banner is not necessarily protected speech, even though it unquestionably would have been had the banner been unfurled elsewhere. As to the second, I am willing to assume that the Court is correct that the pressing need to deter drug use supports JDHS's rule prohibiting willful conduct that expressly "advocates the use of substances that are illegal to minors." App. to Pet. for Cert. 53a. But it is a gross non sequitur to draw from these two unremarkable propositions the remarkable conclusion that the school may suppress student speech that was never meant to persuade anyone to do anything." Time to throw in the towel, we're done. Incitement to Imminent Lawless Action: Give me liberty or give me ~~death~~ a handshake of carbon monoxide...

By: Mental Wimp

Mental Wimp — Mon, 25 Jun 2007 12:10:27 -0800

It seems like some "conservatives" (loosely defined) are just squirmy with delight that their heroes on SCOTUS are legislating like crazy from the bench, making up shit as they go along. It's always been true that no one could turn the US into a totalitarian state unless they captured the Supreme Court. Although the 5-4 majority is slim, they are making hay while this sun shines.

By: peeedro

peeedro — Mon, 25 Jun 2007 12:16:57 -0800

In Frederick, what's up with Justice Thomas? On page 28 of the pdf, he drops this bomb: "In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools." Is he really saying, "Nya nya nya, I can't hear your Tinker."

By: LooseFilter

LooseFilter — Mon, 25 Jun 2007 12:23:04 -0800

Mayor West, you left the most scathing sentence off of your quote from Stevens' dissent: That the Court believes such a silly message can be proscribed as advocacy underscores the novelty of its position, and suggests that the principle it articulates has no stopping point. I think you're absolutely right--those dissenting must simply be looking toward the next court, hoping it will right these boneheaded decisions.

By: Riki tiki

Riki tiki — Mon, 25 Jun 2007 12:23:18 -0800

So I'm emotionally conflicted. I spent a good part of yesterday hitting refresh on the "no touching" post and arguing that broad, overly-restrictive school policies are a good thing when enforced by reasonable people. Now it's today, and I see a broad, overly-restrictive school policy being enforced by a principal who reasonably (if incorrectly) judged the situation, and I disagree with it. I'm sure if I analyzed my specific wording in yesterday's thread I could doublethink my way into believing I was right all along, but I'm not going to do that. Instead, I admit that I was being a short-sighted idiot, and throw myself upon the mercy of the blue.

By: anotherpanacea

anotherpanacea — Mon, 25 Jun 2007 12:28:40 -0800

That's funny: I thought it was a great day for the Supreme Court because my partner is there today. Obviously, the Morse decision is a bit disappointing, but as dios and others have pointed out, the Court upheld his suspension because they found him to be substantially 'at school,' negating most of the misleading talk about his having been off school property (in the street) or having not been officially 'in attendance,' (despite his presence at the event.) If this had been serious political speech rather than a prank, or if he had advocated legalization without advocating usage (which most sane commentators do, nowadays) the Court would have upheld his right to speak. As it was, it seems most analogous to commercial speech for an illegal product, and I think we can all agree that advertisements can and should be restricted on school property, all the more so when what is being marketed is illegal and bad for children. Wilkie is a new case for me, and seems fairly straightforward from the opinion: Robbins had alternative methods for resolving his dispute with the government, and the worst offenses could be dealt with individually without invoking a Bevins claim. The dissent paints a picture that I find rather frightening, of a Land Management officials running rough-shod over a rancher just trying to make a living, and certainly the pattern of trespass and outright abuse of power is pretty damning. Still, I think that 'the death of a thousand cuts' argument is a little too much of a slippery slope, and that, on balance, he should have tried to recover for each of the individual infringements. Trespass, especially, goes to the heart of the matter and courts have been known to grant large damages for trespass even when the injury was largely symbolic.

By: LooseFilter

LooseFilter — Mon, 25 Jun 2007 12:33:31 -0800

I don't think you were wrongheaded in your perspective in that thread, Riki tiki--I think that what's evident is that one can no longer count upon the existence of reasonable people, particularly in positions of authority. You seemed to me in that thread to be arguing from a world where most people really do have basic common sense, and those in positions of responsibility and authority actually work to exercise good, considered judgment. That world does not currently exist in the U.S. I have learned not to count on anyone's basic good sense or considered judgment about anything, and I'm more often right about that than not, unfortunately. Thinking that way has saved my ass in a few work situations (by helping me preempt an incompetent supervisor's next moves), and keeps me pleasantly surprised when I do discover reasonable, thoughtful people along the way.

By: Riki tiki

Riki tiki — Mon, 25 Jun 2007 12:41:43 -0800

Thanks LooseFilter, I feel a tiny bit better (and a lot more cynical). You get a favorite for being nice to me.

By: jfuller

jfuller — Mon, 25 Jun 2007 12:46:32 -0800

> It seems like some "conservatives" (loosely defined) are just squirmy with delight that > their heroes on SCOTUS are legislating like crazy from the bench, making up shit as > they go along. Conservatives of a more libertarian bent are not squirmy with delight, to speak of. But it's hard not to enjoy a told-you-so moment like this. To those who for so many years ran to the courts whenever the voters were too retarded and/or wicked to give them the progress they demanded (and still do so today, e.g. concerning gay marriage) we said "Don't turn the courts into a partisan weapon, it will twist in your hand and cut you one day, and then you'll wish you hadn't but it will be too late." Well, here's the told-you-so moment, bitter but not totally unsweet. What part of "what goes around, comes around" didn't the dolts understand? Any of it, evidently.

By: LooseFilter

LooseFilter — Mon, 25 Jun 2007 12:46:34 -0800

Aw, thanks! The paradox for me has been that, since I've accepted a more cynical perspective about the world I live in, I've actually been able to indulge my optimism more--it's no longer naive or idealistic, and grounding my natural optimism has allowed it to be more influential. Though it can be a difficult balance.

By: [expletive deleted]

[expletive deleted] — Mon, 25 Jun 2007 12:52:02 -0800

Is it just me, or is Alito arguing in Hein v. Freedom from Religion that the plaintiff lacks standing because Flast doesn't apply to the executive? From the Souter dissent (p. 57 of the pdf):

Justice Stewart recognized this in his concurring opinion in Flast, when he said that “every taxpayer can claim a personal constitutional right not to be taxed for the support of a religious institution,” and thus distinguished the case from one in which a taxpayer sought only to air a generalized grievance in federal court. 392 U. S., at 114.

How is there a substantive difference between congress giving tax dollars to churches and congress giving tax dollars to the president to give to churches?

By: LooseFilter

LooseFilter — Mon, 25 Jun 2007 12:52:31 -0800

(previous comment intended for Riki tiki of course) jfuller: What part of "what goes around, comes around" didn't the dolts understand? Any of it, evidently. You shade your views on these large issues in terms of personal competition--it's subtle, but present nonetheless. That's what I think pisses me off about conservative politics of the last few decades so much, that it's so much about personal competition, about your view "winning" over another. While some social liberals may have tried to pursue issues inappropriately--in your view--through the courts, bad decisions are bad decisions, and it simply doesn't matter whose view is temporarily vindicated. If you think this is a "told-you-so" moment, you're not seeing the forest for the trees.

By: gurple

gurple — Mon, 25 Jun 2007 12:54:09 -0800

Wow. Apparently Fox News now shows cartoons on Saturday morning. And jfuller lives in one.

By: gurple

gurple — Mon, 25 Jun 2007 12:56:22 -0800

How is there a substantive difference between congress giving tax dollars to churches and congress giving tax dollars to the president to give to churches? According to Souter's dissent, representing nearly half the Supreme Court, there isn't a substantive difference there.

By: anotherpanacea

anotherpanacea — Mon, 25 Jun 2007 12:59:13 -0800

jfuller: Conservative courts have been, both historically and currently, more given to overturn the actions of democratically elected legislators than so-called liberal ones. (source) You may be pissed about the Warren court, but those decisions were just a reaction to the Lochner-era court before it. Don't kid yourself: courts are active participants in our democracy, and conservatives 'go running' to them just as often as liberals, if those terms even mean anything.

By: quarter waters and a bag of chips

quarter waters and a bag of chips — Mon, 25 Jun 2007 13:04:44 -0800

I am fully convinced Clarence Thomas would've ruled against Oliver Brown if he had the opportunity.

By: Riki tiki

Riki tiki — Mon, 25 Jun 2007 13:07:23 -0800

Between Hein and the Newdow pledge of allegiance case, I'm becoming frustrated at "lack of standing" being used to avoid answering questions about religious establishment. I understand that the SCOTUS can't just throw judgments around willy-nilly without it being brought to their attention through proper channels, but here it just seems like a cop-out. That said, if they didn't cop out of answering the question it seems entirely likely that they'd find a way to answer it wrong, so maybe this is the lesser evil.

By: CitizenD

CitizenD — Mon, 25 Jun 2007 13:19:59 -0800

Riki tiki Between Hein and the Newdow pledge of allegiance case, I'm becoming frustrated at "lack of standing" being used to avoid answering questions about religious establishment. I second that emotion. When it's a constitutional issue, how could *any* citizen *not* have standing? Oh yeah, I must be living in that nonsensical world described upthread, where you can reasonably assume common sense, good-will, yada yada yada. Loosefilter -- you oughta publish a book about that whole cynicism/optimism balance thing you got goin' on...

By: RichardP

RichardP — Mon, 25 Jun 2007 13:20:06 -0800

peedro:

In Frederick, what's up with Justice Thomas? On page 28 of the pdf, he drops this bomb: "In my view, petitioners could prevail for a much simpler reason: As originally understood, the Constitution does not afford students a right to free speech in public schools." Is he really saying, "Nya nya nya, I can't hear your Tinker."

Yes, in his concurring opinion Justice Thomas is essentially declaring that he is in agreement with Justice Black's dissenting opinion in Tinker (i.e. that public school students completely lack First Amendment rights while at school). Ouch.

By: a robot made out of meat

a robot made out of meat — Mon, 25 Jun 2007 13:22:22 -0800

Assuming that

To the extent the Court independently finds that "BONG HiTS 4 JESUS" objectively amounts to the advocacy of illegal drug use—in other words, that it can most reasonably be interpreted as such—that conclusion practically refutes itself. This is a nonsense message, not advocacy. The Court's feeble effort to divine its hidden meaning is strong evidence of that. Ante,at 7 (positing that the banner might mean, alternatively, " '[Take] bong hits,' " " 'bong hits [are a good thing],' " or " '[we take] bong hits' ").

is correct, it's amazing. I can't wait for the fun times administrators can have adding "are a good thing" to statements and inferring a threat!

By: jonp72

jonp72 — Mon, 25 Jun 2007 13:24:03 -0800

on page 52, footnote 5 of the FEC case, Justice Scalia takes a pretty direct shot at Justice Alito. This is not important in itself or in comparison to the importance of the opinion, but it does kind of reflect on the silliness of that "Scalito" talk back during confirmation. It's a distinction without a difference. Scalia and Alito were still both voted in the majority in the FEC case. Ideologically, they are still brothers in arms, even if they might express a few minor differences in a footnote here and there. In addition, the nickname Scalito dates back to at least 1992, when it was mentioned in a National Law Journal article about Alito's tenure as a federal judge. During Alito's confirmation hearings, Republican Senator John Cornyn also referred to Samuel Alito as Scalito. The fake right-wing moral outrage over the "Scalito" nickname was an attempt to argue that opposition to Alito was motivated by anti-Catholic bias, not because Alito is a total lackey of the Bush Administration.

By: CitrusFreak12

CitrusFreak12 — Mon, 25 Jun 2007 13:27:53 -0800

I just wanted to pop in here and say I wish more people tagged their posts like this...

By: jonp72

jonp72 — Mon, 25 Jun 2007 13:28:21 -0800

The Court's conservatives, needless to say, are not always on the side of reducing standing; as Jack Balkin has pointed out, "the most unprincipled and arbitrary parts of American constitutional law." Compare this case with Northeastern Florida, in which Thomas wrote an opinion holding that a challenge to an affirmative action program could go forward even absent any evidence that the individuals challenging the program were denied a contract because of it. In fairness, Scalia and Thomas have created a clear, identifiable principle: standing rules should be liberal when they are likely to produce conservative outcomes and narrow when they are likely to produce liberal outcomes. Whether this is a defensible principle I leave to the reader. (cite)

By: Avenger

Avenger — Mon, 25 Jun 2007 13:29:13 -0800

ROU_Xenophobe wrote:If you want to sue, you need to show the court the harm that you've suffered so that the court can fix it. Having this harm is having standing to sue. It doesn't have to be a big harm -- Yoder went to the Supreme Court over two $5 fines -- but it has to be something real and connected to the claims you're making.

The Court said here that just being a taxpayer, some of whose taxes go to stuff you don't like, is not sufficient standing in this case. It might be if we were talking about a legislative earmark, but we ain't.

Okay, hold on a second here. Full stop. My taxes do go to things I don't like. The war. Abstience education. Abstience re-education. So on and so forth. The difference, though, is that you can argue (albeit in an incredibly strained and contorted way) that those expenses are constitutional under, say, I dunno, the "provide for the common defense" bit in the preamble. Government funding of churches is not just "something I don't like". It blatantly, fundamentally violates the constitution. Congress giving money to the President to give to Churches is functionally indistinguishable from Congress establishing and funding churches.

By: Blazecock Pileon

Blazecock Pileon — Mon, 25 Jun 2007 13:35:08 -0800

Well, here's the told-you-so moment, bitter but not totally unsweet. It's wonderful that we now celebrate on Metafilter the making and adjudicating of laws out of spite. A very big day, indeed.

By: Skygazer

Skygazer — Mon, 25 Jun 2007 13:42:18 -0800

It will interesting to see how the Fredrick case impacts the day to day interactions of school officials and students. Does it mean that any book in a school library that can be interpreted as advocating drug use can be banned? Because a shit load of classic books are going to be thrown out of H.S. libraries. And what about music or fashion? If a student is listening to something on his/her Ipod glorifying the pleasures of chronic and ho's and what have you, what happens then? And clothes wise there's all sorts of hip hop and punk rock fashion that can be said to support illegal drug use and illegal behavior. And even if the school officials aren't anti-first amendment blowhards, I imagine once the "intelligent design" crew starts snooping around there's all sorts of ways they can limit student expression. Hell I wouldn't be surprised if they come up with a way to associate evolution with advocating drug use. You heard it here first. This is going to be an unholy mess...and I too predict that it will be picked up again in the future and overturned as the narrow BS ruling that it is. The Roberts bench has set a new low in arrogance.

By: Smedleyman

Smedleyman — Mon, 25 Jun 2007 13:46:26 -0800

WWJ420? "You'd think advocates of smaller government would be all for a more rational, and less 'nanny state,' solution" F'ing A. I keep losing wingmen to transient partisan crap. "That's a curious reaction. Because the opinions do not reflect upon democracy in any way." Socially. It could - albeit doesn't legally - have a chilling affect on students wishing to express themselves in a variety of ways. This, to me, seems like basic humor, not advocacy. Granted it can be read in such a way, and has been ruled so, but it does really put a damper on one's outlook at that age. But "bong hits for Jesus" is a pretty funny thing to have on a sign. Seems fairly harmless given the circumstances and they could have reasonably looked the other way. They chose not to. Although once committed obviously they have to go all the way. And I get the legal position that he was under the auspices of the school district, so I can't really go after that. (Well, I could, but it's shaky ground for me). But I can fault the initial conditions - what's the educational message? (I know what it's supposed to be, but that's bullshit and everyone knows it). So, what - don't buck the school system? Don't be a smart ass and joke about dope? Silly. Much ado about something easily brushed off as petty adolescent rebellion - given the circumstances. They could have nailed him for skipping class or being at a school function when he was supposed to be home or some such. That part of it I find more disturbing.

By: ROU_Xenophobe

ROU_Xenophobe — Mon, 25 Jun 2007 13:49:18 -0800

Government funding of churches is not just "something I don't like". Well, point to your damages then. How have you been harmed? Government funding of churches is not just "something I don't like". It blatantly, fundamentally violates the constitution. Nah. The government can give grants to various groups for things like various community outreach programs, food banks, textbooks, all sorts of stuff. And it can give those grants to religious institutions the same as any other, subject to a few constraints.

By: Blazecock Pileon

Blazecock Pileon — Mon, 25 Jun 2007 14:00:10 -0800

Well, point to your damages then. How have you been harmed? That tax revenue could have paid for real and important homeland security improvements. It could have paid down the national debt. It could have paid for basic research in medicine and energy. I can think of many tangible harms caused to citizens by not allocating tax revenue towards funding the state's critical, non-political needs.

By: gurple

gurple — Mon, 25 Jun 2007 14:00:28 -0800

And it can give those grants to religious institutions the same as any other, subject to a few constraints. Subject to a few very important constraints that have been hammered out in the Supreme Court over the years. For example, the government can give money to a church to run a food bank, but that church then can't discriminate in the hiring of those food bank staffers, and the money has to stay separate from funds used by the church for religious activities. Incidentally, the current DoJ doesn't even believe that that restriction should apply, as in the case of the Salvation Army, but that's neither here nor there. The government cannot give money to any institution, religious or otherwise, for the promotion of religion. The FFRF, who brought the Hein case, would like to argue that this is exactly what the Faith-Based Office does. Unfortunately, because of this decision, they don't even get to make that argument. Well, point to your damages then. How have you been harmed? If you don't think the Establishment clause of the First Amendment protects the American people from harm, ROU_Xenophobe, I believe the onus is on you to explain yourself.

By: dios

dios — Mon, 25 Jun 2007 14:04:28 -0800

Government funding of churches is not just "something I don't like". It blatantly, fundamentally violates the constitution. Congress giving money to the President to give to Churches is functionally indistinguishable from Congress establishing and funding churches. posted by Avenger at 3:29 PM on June 25 This is incorrect. Look at Bowen v. Kendrick or Mitchell v. Helms or Lemon v. Kurtzman. It is constitutionally permissible to give money to a church if the money is not for advancement of religion and has a secular purpose. Funding a soup kitchen run by a church group is not constitutionally different than funding a soup kitchen run by the local Junior League. By the Supreme Court's jurisprudence, as long as the money does not have the primary purpose of advancing or inhibiting religion. Or as the Supreme Court has said in Bowen: "[Facially neutral activities] are not themselves specifically religious activities, and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations."

By: amberglow

amberglow — Mon, 25 Jun 2007 14:11:19 -0800

Conservatives go 4-4 today at the Supreme Court-- ... Each of these decisions help establish the true conservative bona fides of this Court. It is more conservative than it was last term, when Sandra Day O'Connor sat in one some of the cases. And was more conservative last term than the term before that, before Chief Justice Roberts and Justice Sam Alito joined the Gang of Nine. In fact, the Court now is is so entrenched on the ground of the legal right that, aside from the global warming case decided earlier this year, it is hard to point to a single major ruling this term that could or would give succor to legal liberals or even jurisprudential moderates. ... Welcome to the next 20 years or more.

By: CRS

CRS — Mon, 25 Jun 2007 14:23:51 -0800

I'm confused as to why the FEC decision is seen as a pro-conservative ruling. Doesn't it relax restrictions on free speech? I understand that the instant case involved a pro-life organization, but the effect is to allow more speech from either side. So could someone explain how this qualifies as a conservative victory? Thanks.

By: smackfu

smackfu — Mon, 25 Jun 2007 14:27:25 -0800

Is this the Democrat "woe is me" thread?

By: Avenger

Avenger — Mon, 25 Jun 2007 14:27:40 -0800

Well, point to your damages then. How have you been harmed? How have I been harmed? How has our country been harmed? Nah. The government can give grants to various groups for things like various community outreach programs, food banks, textbooks, all sorts of stuff. And it can give those grants to religious institutions the same as any other, subject to a few constraints. "How could anyone possibly be against charity? Who in their right mind would be against their local Hellfire & Brimstone Baptist Church opening up a soup kitchen? You're not anti-homeless, are you? ARE YOU?!?!?" The fact that the supreme court has ruled that the government "can" subsidize religious activity with secular tax dollars doesn't make it right or ethical. Tax dollars flowing into Church coffers is a bad, bad thing, even if the churches are promoting the "common good" or whatever. Its bad because the "common good" may eventually be defined in a religious way. Bush the First has already stated that Atheists "should [not] be considered citizens". Whos to say that in the future, the President decides that widespread belief in Christianity among the common citizens is a vital matter of national security? He signs an executive order earmarking 10 billion dollars to "The Helping Every One Critical Response And Caring Youth" Program, which will help to instill badly needed Judeo-Christian values in our nation. And hey, I won't be directly harmed by it, so its all good, right?

By: brain_drain

brain_drain — Mon, 25 Jun 2007 14:33:22 -0800

Well, here's the told-you-so moment, bitter but not totally unsweet. What part of "what goes around, comes around" didn't the dolts understand? Any of it, evidently. Cool, so I assume you'd have no complaint if Bush were impeached by a Democratic Congress.

By: smackfu

smackfu — Mon, 25 Jun 2007 14:34:32 -0800

I love Supreme Court decisions because they get people arguing the law who have no idea WTF the law is.

By: gurple

gurple — Mon, 25 Jun 2007 14:38:30 -0800

I love Supreme Court decisions because they get people arguing the law who have no idea WTF the law is. Me, too, except I'm not being sarcastic. IA(most definitely)NAL, and I definitely feel that I'm more aware of the how the legal system works than I would be if the Supremes didn't keep doing wacky stuff like this and forcing me to read all kinds of precedents to have some hope of understanding the context.

By: Skwirl

Skwirl — Mon, 25 Jun 2007 14:43:44 -0800

So, when kids graduate from high school, or turn 18, (whichever is later) could we give them a plaque or a statuette or something that says, "you are now eligible for inalienable human rights, please figure out how to use them responsibly seeing as how no one ever gave you half a chance to do so up until this magic, arbitrary moment. Good luck!"?

By: footnote

footnote — Mon, 25 Jun 2007 14:48:14 -0800

Ok, I feel a little better now that I've read more... it's Kennedy's concurring opinion that controls, and he tries hard to limit the decision to the facts of this case. So a "legalize it" t-shirt is probably still ok.

By: grouse

grouse — Mon, 25 Jun 2007 14:50:24 -0800

Does it mean that any book in a school library that can be interpreted as advocating drug use can be banned? There was nothing in law before to stop schools banning books or refusing to purchase them for their libraries.

By: Riki tiki

Riki tiki — Mon, 25 Jun 2007 14:52:30 -0800

smackfu: I've read the bill of rights, learned some of the history and precedent behind free speech and establishment clause cases, and consequently I'm making my points based on my knowledge. IANAL, but that's some idea of what the law is. If you're looking for someone with omniscient understanding of SCOTUS issues then I suggest you make a sign of the cross and turn your eyes upwards (while this administration hands you a check and asks you nicely to use it to help people without preaching to them). In the meantime, if you disagree on a specific point then I invite you to elaborate. Rest assured that I'll only dismiss it on its actual merits rather than because you prefer to snark than to make meaningful contributions.

By: footnote

footnote — Mon, 25 Jun 2007 14:55:13 -0800

Sorry, that's Alito's concurrence, joined by Kennedy. (The rule is that where there's a concurrence needed to make a majority, the narrowest interpretation is precedent.)

By: amberglow

amberglow — Mon, 25 Jun 2007 14:55:36 -0800

on the faith-based financing: ... The Bush administration says taxpayers should not be allowed to challenge the government's conferences [to train Christianists in how to work the system to apply for grants] because Congress did not earmark funds for a specific program and no funds were distributed outside the government. The White House pulled money for the conferences out of general appropriations. ... It's our money and we now have no say in challenging how it's spent at all. We fund the entire government. It's also directly against that favorite talkingpoint of Scalia's--original intent. We've seen him distort their intent before: ...Scalia, a devout Catholic, is distorting the historical record in order to shoehorn his personal faith into civic life. Scalia discounts a singularly important fact: The Constitution, our nation's seminal document, purposely includes no mention of a deity. Religion is mentioned only to guarantee no religious test for public office. The founders at the Constitutional Convention were creating a nation governed by men, based on the ideas of men, and they understood perfectly - having been witness to the centuries of religious conflict in Europe - the danger of government entangling itself in sectarianism. ...

By: EarBucket

EarBucket — Mon, 25 Jun 2007 14:58:10 -0800

The Stevens dissent, to my mind, is the most interesting part of the Morse case: Reaching back still further, the current dominant opinion supporting the war on drugs in general, and our anti-marijuana laws in particular, is reminiscent of the opinion that supported the nationwide ban on alcohol consumption when I was a student. While alcoholic beverages are now regarded as ordinary articles of commerce, their use was then condemned with the same moral fervor that now supports the war on drugs. . . . Surely our national experience with alcohol should make us wary of dampening speech suggesting--however inarticulately--that it would be better to tax and regulate marijuana than to persevere in a futile effort to ban its use entirely. Utterly sensible advice seasoned in with a dose of Abe Simpson-esque "Why, back during Prohibition!" Love it.

By: footnote

footnote — Mon, 25 Jun 2007 15:01:44 -0800

If you're looking for someone with omniscient understanding of SCOTUS issues then I suggest you make a sign of the cross and turn your eyes upwards (while this administration hands you a check and asks you nicely to use it to help people without preaching to them). Riki Tiki, I think that some of the snark towards lay people has to do not with their understanding of the law, but with their "OMG WTF!!!" reaction to outcomes that were really quite predictable to lawyers following the Supreme Court. The Hein decision sucks, but it couldn't have been really surprising to even the most die-hard advocate. Now, sometimes you do have objectively outrageous results or language in court cases (like the language about precious mommies in Carhart this Term), but what seems outrageous to a lawyer is not always outrageous to the lay person, and vice versa.

By: washburn

washburn — Mon, 25 Jun 2007 15:05:12 -0800

It's sad to see what's happening to the United States.

By: Riki tiki

Riki tiki — Mon, 25 Jun 2007 15:12:10 -0800

footnote: I can appreciate that distinction, but the fact that lawyers received their dose of "OMG WTF" gradually over the full course of the case doesn't make the decision any less ridiculous, and for those of us arriving late to the party and being blasted with it all at once it's a bit overwhelming. Moreover, I was responding to smackfu's general snarky tone, including his jab at whiny democrats seven minutes earlier.

By: smackfu

smackfu — Mon, 25 Jun 2007 15:26:49 -0800

All I got is snarky tone, since I certainly don't know enough law to debate SCOTUS decisions.

By: footnote

footnote — Mon, 25 Jun 2007 15:47:16 -0800

I can appreciate that distinction, but the fact that lawyers received their dose of "OMG WTF" gradually over the full course of the case doesn't make the decision any less ridiculous, and for those of us arriving late to the party and being blasted with it all at once it's a bit overwhelming. Well, I guess the problem is we have a much higher tolerance for ridiculousness because we're already grounded in the precedent that leads up to the decision. To you it might seem crazy that simply being a taxpayer isn't sufficient to challenge what seems to you to be an illegal use of taxpayer money. But to lawyers, we already knew that was the basic story. Now, none of this is to say that your layperson's instinct that all the precedent on standing is blatantly ridiculous is wrong. That's why it's good for lawyers to talk to nonlawyers (assuming that lawyers still have the ability to communicate outside of the species).

By: dw

dw — Mon, 25 Jun 2007 15:47:46 -0800

From the NY Times:

Former independent counsel Ken Starr, whose law firm represented the school principal, called it a narrow ruling that 'should not be read more broadly.' Taking issue with that, Steven R. Shapiro, national legal director of the American Civil Liberties Union, said, 'It is difficult to know what its impact will be in other cases involving unpopular speech.'

But based on the margins, it looks like the majority is saying that anything the school thinks is unpopular and/or interfering with the school's mission is fair game. And that means... high school religious groups. Wiccans will get shut down in small communities. Christians will get booted in liberal communities just because the community finds their beliefs unpopular. And then the bloggers and the talk show hosts and politicians will have more fodder than ever. Am I reading this right? Because if so, this court is going to be looking at Morse v. Frederick again and again until they finally just return to Tinker.

By: rob511

rob511 — Mon, 25 Jun 2007 15:57:12 -0800

I liked the Supremes a lot more in the old days, when they wore those long spangly dresses.

By: The World Famous

The World Famous — Mon, 25 Jun 2007 16:20:07 -0800

Wiccans will get shut down in small communities. Christians will get booted in liberal communities just because the community finds their beliefs unpopular. And then the bloggers and the talk show hosts and politicians will have more fodder than ever. And since those will be test cases, they'll go up to the Supremes, too, and afford an opportunity for clarification and more line drawing.

By: ROU_Xenophobe

ROU_Xenophobe — Mon, 25 Jun 2007 16:20:44 -0800

If you don't think the Establishment clause of the First Amendment protects the American people from harm, ROU_Xenophobe, I believe the onus is on you to explain yourself. It's not my position, so I really don't care either way. It's merely my layman's understanding of how being a taxpayer does not normally establish standing, except for direct earmarks. I've nowhere said that I support it. The fact that the supreme court has ruled that the government "can" subsidize religious activity with secular tax dollars doesn't make it right or ethical. Of course not. I never said that it did.

By: XQUZYPHYR

XQUZYPHYR — Mon, 25 Jun 2007 16:20:48 -0800

Former independent counsel Ken Starr, whose law firm represented the school principal, called it a narrow ruling that 'should not be read more broadly.' That's what they said in Bush v. Gore too. Because, you know, that's what the Supreme Court is really all about. The little things.

By: rxrfrx

rxrfrx — Mon, 25 Jun 2007 16:26:59 -0800

dw: I don't think you're reading it right. My understanding is that the school's justification for the punitive action against Frederick was that his speech endorsed an illegal action. Forget that it's a politically controversial action, a nonviolent misdemeanor, etc, etc. They could point their finger and say LOOK IT'S CODIFIED AS WRONG! So in order to use this against Christians or bloggers, well, there would have to be some stretching. But as was already mentioned in this thread, not that much stretching. Any sort of speech that represents disorderly conduct, for example, or some form of civil disobedience, in the way that BONG HITS 4 JESUS represents marijuana usage (i.e. "this thing exists and I am not imploring you to not do it") would be fair game for punitive action by the school.

By: rxrfrx

rxrfrx — Mon, 25 Jun 2007 16:29:08 -0800

...not to mention the large amount of our popular culture that represents illegal actions in this way (e.g. violent TV and movies, violent song lyrics, song lyrics that represent drug use in a permissive manner).

By: gurple

gurple — Mon, 25 Jun 2007 16:31:16 -0800

Well, Frederick may have lost the Bong Hits case, but maybe he'll recoup his attorney fees with t-shirt sales.

By: gurple

gurple — Mon, 25 Jun 2007 16:41:06 -0800

Er, or with these t-shirt sales. All right, I guess they're probably all just unrelated opportunists. That sucks.

By: Smedleyman

Smedleyman — Mon, 25 Jun 2007 16:41:32 -0800

Ah, the "Snarky Tone" record label has endorsed so many performers doing that thing they do. One of the Boojums in the 'Snarky Tone' galaxy of Bandersnatchs. "Any sort of speech that represents disorderly conduct, for example, or some form of civil disobedience, in the way that BONG HITS 4 JESUS represents marijuana usage (i.e. "this thing exists and I am not imploring you to not do it") would be fair game for punitive action by the school." Phew. So that's ok then. Plus: the threat of punitive action.

By: mullingitover

mullingitover — Mon, 25 Jun 2007 16:50:44 -0800

rxrfrx writes "My understanding is that the school's justification for the punitive action against Frederick was that his speech endorsed an illegal action. Forget that it's a politically controversial action, a nonviolent misdemeanor, etc, etc. They could point their finger and say LOOK IT'S CODIFIED AS WRONG!" Well in fairness, we're not talking about bong hits for just anyone, it's bong hits for Jesus. Since Jesus is God and God is infallible, Jesus could technically be doing coke off Mary Magdalene's tits and it would still be righteous and good.

By: LooseFilter

LooseFilter — Mon, 25 Jun 2007 17:39:07 -0800

It is constitutionally permissible to give money to a church if the money is not for advancement of religion and has a secular purpose. I understand this point, but then why is it OK to give so much money to church-based "health" programs that teach abstinence-only and refuse to educate about or even mention effective birth control/disease prevention methods? Teaching abstinence only through U. S. government funded programs (which is happening all over, most damagingly in Africa), is clearly the advancement of a religious point of view.

By: ROU_Xenophobe

ROU_Xenophobe — Mon, 25 Jun 2007 18:18:07 -0800

By: bruce

bruce — Mon, 25 Jun 2007 20:35:45 -0800

blow jobs for jesus!

By: infinitywaltz

infinitywaltz — Mon, 25 Jun 2007 22:18:45 -0800

Man, this is a fascinating thread. Incidentally, Dios, despite the acrimony occasionally directed toward you--not to mention the fact that I disagree with you on a lot of things--you are really good at explaining legal issues in layman's terms when you want to be.

By: matteo

matteo — Tue, 26 Jun 2007 02:23:16 -0800

Well, here's the told-you-so moment, bitter but not totally unsweet. It's wonderful that we now celebrate on Metafilter the making and adjudicating of laws out of spite. A very big day, indeed. jfuller's still sore about Brown v Board of Education, it's OK, desegregation must have been an enormously hard pill to swallow, but I trust he'll recover sooner or later

By: amberglow

amberglow — Tue, 26 Jun 2007 08:28:40 -0800

No. Teaching abstinence-only is merely teaching behavior that a religious group happens to like, not teaching religion. Unless they teach with religious reasons for abstinence, anyhow. It's still stupid, of course. That depends on the people teaching and group's methods--we know that many of these programs getting taxpayer money are explicitly religious and prosyletizing, and only formed social service arms when the faith-based funding started. You can google for it. They also discriminate in hiring and in who they offer programs too (unless those people in need are willing to sit thru hours of church and religious talk before getting the services they need.)

By: amberglow

amberglow — Tue, 26 Jun 2007 08:31:51 -0800

That's why the govt runs these conferences all the time, as a matter of fact--and the money handed out is now in the billions from these grants.

By: pyramid termite

pyramid termite — Tue, 26 Jun 2007 10:22:46 -0800

It's merely my layman's understanding of how being a taxpayer does not normally establish standing, except for direct earmarks. this whole controversy is where people are getting mad at the wrong people ... if the president is giving money to faith-based initiatives, it's congress' fault for not specifying where that money should go, or specifying that it cannot be used in that way

By: pyramid termite

pyramid termite — Tue, 26 Jun 2007 10:26:01 -0800

i might also point out that if anyone can have standing in a case just because they pay taxes, we might as well forget about having a functioning government

By: oaf

oaf — Tue, 26 Jun 2007 12:30:30 -0800

What the Supreme Court was arguably doing was dealing with the rules that were democratically established. Who voted on the First Amendment? IMO, SCOTUS got it wrong (which they've been doing ~~surprisingly~~ frequently lately!) There we go.

By: dw

dw — Tue, 26 Jun 2007 13:44:35 -0800

They also discriminate in hiring Actually, they can't. Taking federal money means they lose their Title VII exemption. That's why they formed these social service arms -- so they can take the money while not having to lose the exemption for their entire organization. World Vision, for example, has had a division called WVUS for a couple of decades now that handles their USAID money. This money uses the same distribution system as the main Christian NPO but is accounted for differently, and none of it goes to any religious part of the organization, only to food and clothing purchases and distribution. WVUS also handles the UN (UNICEF/UNHCR/UNESCO) money they receive for emergencies.

By: The World Famous

The World Famous — Tue, 26 Jun 2007 13:49:53 -0800

Who voted on the First Amendment? You're kidding, right? You didn't know it was ratified? I suspect that a lot of the backlash against faith-based initiatives stems from people's misunderstanding exactly what a faith-based initiative is, and what hurdles an organization must get over in order to get funding.

By: amberglow

amberglow — Tue, 26 Jun 2007 13:53:56 -0800

They also discriminate in hiring Actually, they can't. Taking federal money means they lose their Title VII exemption. That's why they formed these social service arms -- so they can take the money while not having to lose the exemption for their entire organization. Actually they do. No one is inspecting any of them until someone complains -- or takes them to court (and not even then--and not anymore, as we see). There aren't any "faith-based inspectors" and there isn't any "faith-based accountability". Or, rather, it's all on "faith".

By: amberglow

amberglow — Tue, 26 Jun 2007 13:56:57 -0800

Their social service arms are often if not always staffed by and housed in the same places as the religious. It's fact. Many of the social service arms didn't even exist until the government started this funding. No one is examining any of this except for church/state nonprofits, which is why court cases were needed. Not the DOJ, who is now prosecuting on behalf of the religious, and not anyone else. There are no success requirements, or achievements that need to be shown. There is no accountability.

By: The World Famous

The World Famous — Tue, 26 Jun 2007 14:21:56 -0800

There are no success requirements, or achievements that need to be shown. There is no accountability. For non-faith-based organizations, are there success requirements or achievements that need to be shown in order to continue to receive funding? How do the requirements for receiving funding differ between faith-based and non-faith-based initiatives? For whatever it's worth, I think that if the government is going to fund charities, it should be required, constitutionally, to fund both religious and non-religious charities. But I also strongly believe that the government should not fund any charities, and that religions should never accept money from the government. But I think that if funding is given out, then the requirements for receiving funding should be the same for all organizations.

By: dw

dw — Tue, 26 Jun 2007 14:35:22 -0800

Yes, there is accountability. There's just as much accountability as there is for any organization under Federal law. If these things are being under-prosecuted, well, look to the White House and their attitude towards civil rights enforcement. But if Title VII is in effect, then all parts of Title VII are in effect, and you can sue for hiring discrimination until the cows come home. For non-faith-based organizations, are there success requirements or achievements that need to be shown in order to continue to receive funding? How do the requirements for receiving funding differ between faith-based and non-faith-based initiatives? It's pretty much the same as any federal granting process. File for grant, show work for renewal, competitive renewal after X number of years.

By: amberglow

amberglow — Tue, 26 Jun 2007 14:49:14 -0800

Again, there is no enforcement, unless you mean the religious getting support from the DOJ to sue whoever they want. Unearthing Civil Rights Erosion -- ... # Employer discrimination has become a much smaller concern for the department. Title VII lawsuits, which cover discrimination in employment based upon race, sex, religion, and national origin, have gone down significantly during this Bush administration. Department officials have been less likely to reach out to employers to discuss these issues, and lax enforcement has helped encourage employers to cease self-assessments that often help correct problems before an active Department penalizes them for it. ... Testimony of Helen Norton, University of Maryland School of Law before the United States Senate Committee on the Judiciary Civil Rights Division Oversight June 21, 2007 --...More specifically, the Section filed a total of only 39 Title VII cases from January 20, 2001 through June 20, 2007 (a period of six years and five months, or approximately 80% of an eight-year Administration). ... Of the 39 Title VII complaints filed by the Division during the current Administration, only 13 included pattern-and-practice claims brought under section 707.2 Only four were brought on behalf of African-Americans and Latinos, only two on behalf of women, two on behalf of white men, one on behalf of Native Americans, and four alleged religious discrimination. ...

By: amberglow

amberglow — Tue, 26 Jun 2007 14:50:20 -0800

and religious organizations are exempt from Title VII, no?

By: ROU_Xenophobe

ROU_Xenophobe — Tue, 26 Jun 2007 14:55:30 -0800

Their social service arms are often if not always staffed by and housed in the same places as the religious. It's fact. Many of the social service arms didn't even exist until the government started this funding. This should be okay. If the government is giving a grant for a food bank, the government shouldn't care -- shouldn't be allowed to care -- what the people running the food bank think about Jesus or Mao or the Great Green Arkleseizure, for or against or indifferent. Obviously, the current crop of nimrods aren't running any sort of level playing field, and that's bad. But the ideal should not be that the government only gives grants to groups that are secular enough, since requiring a declaration of non-faith is just as discriminatory as requiring a statement of faith. This is a free-expression matter, not an establishment-clause one.

By: dios

dios — Tue, 26 Jun 2007 14:59:25 -0800

Just for the record, what amberglow is saying makes no sense whatsoever and is not any way applicable to the subject at hand. The faith-based initiative does not create special funding that goes only to faith-based groups. What it does is allow faith-based groups to compete with secular groups for charitable funds. But as the law makes clear, the sectarian groups who ask for the money are restricted in its use and must strictly comply with the requirements of the federal grant. The cases that deal with this make all of this clear. I don't have a fricking clue what amberglow's point is or why he has brought up Title VII prosecutions in this context, so I'm at a bit of a loss as to explain exactly how it doesn't apply. Read about what the Faith-based Initiative is instead of assuming it is money set aside specifically for religious groups. When you do you realize that the measure is about leveling the playing field between secular and sectarian charity groups. It doesn't give either side an advantage; it merely clears out the former restrictions which effectively prevented any religious groups from receiving federal money to perform secular charity work, such as soup kitchens or running abused spouse shelters, etc.

By: dios

dios — Tue, 26 Jun 2007 15:01:16 -0800

Obviously, the current crop of nimrods aren't running any sort of level playing field, and that's bad. Do you have any hard evidence for this? If so, I'd be interested in seeing it because I have not seen it.

By: dw

dw — Tue, 26 Jun 2007 15:09:45 -0800

and religious organizations are exempt from Title VII, no? That's. What. I've. Been. Saying. And you're missing my point. The point is that a religious organization, even with the eased restrictions, still must set up independent organizations, ones that must comply with all laws governing Federal funding, in order to receive Federal money, even from FBCI. And these shell organizations, no matter how many of the pastor's children or church secretaries are running them, are NOT exempt from Title VII. And BTW, it's that fact that has kept a lot of churches from taking money from FBCI. They don't want the Feds telling them how they can and can't use the money. Which is why most federal money going to religious organizations is still going to relief and development organizations with long, deep standing with the US government and secular NPO/NGOs, such as World Vision and the Salvation Army. I'm not saying the rules aren't being enforced. I am saying there are rules, and they're still there. Stop implying that they aren't there. When Dubya leaves, those rules will still be there, even if the ~~President of the Senate Supreme Lord High Commander Generalissimo~~ Vice President insists they're not applicable to him.

By: dw

dw — Tue, 26 Jun 2007 15:19:16 -0800

The faith-based initiative does not create special funding that goes only to faith-based groups. What it does is allow faith-based groups to compete with secular groups for charitable funds. But as the law makes clear, the sectarian groups who ask for the money are restricted in its use and must strictly comply with the requirements of the federal grant. Actually, dios is stating it more clearly than I was. Basically, the restrictions on the grant process and how funds are spent were eased so that the elaborate budget processes were no longer needed. Title VII was not rescinded.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 02:37:41 -0800

Obviously, the current crop of nimrods aren't running any sort of level playing field, and that's bad. For those who care to pay attention to a reality-based world and look at the facts as they are, the bias in funding not only shows itself in where the funds are directed (fundamentalist, white-run Christian organizations, at the expense of all other secular and religious organizations) but in how the funds are then spent. Revenue pays for a body of staff who generally follow the organization's religious teachings, and it pays for proselytizing to those who are aided by said organizations, through (for example) only providing Bible study, prayer and religious counseling with faith-based initiative funding, or by eliminating education in healthcare choices such as contraception and abortion, in direct support of religious political goals in which a woman's reproductive health is ultimately managed by a patriarchal, fundamentalist autocracy. Of course, the same fools who keep denying that faith-based initiatives are anything but funding a state-promoted religion and doing an end run around the Constitution are the same fools who celebrate the spiteful, partisan hackery now coming out of a stacked Supreme Court — and whether here or elsewhere, these fools deserve only as much attention to their idiocy as needed to highlight their stupidity, the next time they open their big, fat mouths. What's more important is keeping an eye on where the money goes.

By: amberglow

amberglow — Wed, 27 Jun 2007 08:17:09 -0800

If the rules are there and they're not enforced, and there has been clear discrimination by those "arms" of those orgs, and nothing has been done, and now the Supremes say you can't go to court to stop conferences teaching only those religious orgs explicitly how to qualify for those grants, what's the difference? Get real. Blazecock is right. It's not like any of this is a secret. Or that only "real" and valid social service orgs, or "not very religious" orgs, etc, are now getting the money. The Salvation Army, which you mention, is explicitly religious and they do discriminate in everything from hiring to distribution or aid. You can't get any aid separate from the religion from the vast vast majority of these groups. Go look at who's gotten the grants. Go look at how they operate. Go look at who's attended the govt conferences. Go look at the distribution of our money. It's in the billions now, from 7 different agencies. ...The Bush Administration considers the issue as a matter of "protecting the civil rights and religious liberties of faith-based organizations." In support of this position, the President has issued an executive order and has called on Congress to clarify that faith groups can make employment decisions on the basis of religion, whether or not they receive public funds. ... (lots of relevant stuff here)

By: amberglow

amberglow — Wed, 27 Jun 2007 08:21:26 -0800

They don't even hide their discrimination-- both in who can participate, who is offered aid, and what the recipient must do, religiously-- This is just one of many many many programs: Fresh Start program recruiting churches--... Churches will have a choice about which offenders they serve. Once one is assigned to the congregation, the offender will attend worship there regularly and will go through the Celebrate Recovery 12-step program with members of his or her friendship committee, Oliver said. ...

By: amberglow

amberglow — Wed, 27 Jun 2007 08:31:54 -0800

attending worship? choosing who they serve? Fresh Start's Mission

By: amberglow

amberglow — Wed, 27 Jun 2007 08:36:27 -0800

from 05: ... "Most of the grant recipients have a 'Statement of Faith' prominently displayed on their websites or other promotional materials," the study found. "Others declare themselves 'faith-based' or 'Christ-centered'. Nearly all of them incorporate three distinct elements into their mission, social services and public policy advocacy: personal salvation, biblical infallibility and a commitment to religious proselytising." Jeff Krehely, NCRP's deputy director, recently wrote in the magazine Tom Paine: "Something else that most of them have in common: a close relationship with the Bush administration, either as recipients of government grants, or as champions of the administration's most divisive policies, including its opposition to reproductive choice, gay marriage and...any kind of human sexuality that does not involve one man (and) one woman." Krehely cited a group known as Samaritan's Purse as an example of organisations receiving both private foundation and government grants. This group, he says, received 6.6 million dollars from the foundations analysed in the NCRP study, and 5.6 million from the United States Agency for International Development (USAID) to work on abstinence programs whose goal is to stop the spread of AIDS in Africa. Krehely wrote that "Samaritan's Purse is led by Franklin Graham, who provided the sermon at George W. Bush's first inauguration and more recently was in the headlines for denouncing Islam as an 'evil' religion." Graham has also crusaded against the use of condoms, and Krehely says the group was censured for proselytising while carrying out anti-AIDS work in Africa -- paid for by another grant from USAID. "Some of the organisations in the NCRP study -- including the largest --are not required to file IRS tax returns because they are technically established as churches," he told IPS.

By: amberglow

amberglow — Wed, 27 Jun 2007 08:40:10 -0800

ACLU in 03: ... The Woolsey Amendment exactly tracks two of the important legal points made by the Supreme Court in Chief Justice Rehnquist's majority opinion in Bowen v. Kendrick, 487 U.S. 589 (1988). The Court made clear that, although the Constitution does not bar religious organizations from participating in federal programs, it requires (1) that no one participating in a federal program can "discriminate on the basis of religion" in the federal program, and (2) that all federal programs must be carried out "in a lawful, secular manner." Id. at 609, 612. ...

By: amberglow

amberglow — Wed, 27 Jun 2007 08:44:04 -0800

in 05, in Congress: ... At today's hearing, witnesses in support of the faith based-initiative offered truly startling policy suggestions regarding pre-emption of state and local civil rights laws. The vast majority of federal funding for social service programs is administered through state and local governments, many of which offer greater civil rights protections. Lawmakers heard suggestions that such locally enacted protections be cast aside. Also suggested was an exemption for faith-based providers from the standard licensing and certification requirements in substance abuse and other treatment programs. ...

By: dios

dios — Wed, 27 Jun 2007 08:47:02 -0800

attending worship? choosing who they serve? Fresh Start's Mission posted by amberglow at 10:31 AM on June 27 Do they accept federal aid for their mission? I don't see that in the article or on the website. It looks like to me that you are making a poor assumption and trying to use it as proof. If they do limit who can use their charitable services, then they will be in violation of the law. They would have to comply with the law if they want aid. But your link doesn't suggest that that group applies to that discussion. That seems purely your editorial spin. And what exactly is your point by linking to the thing from the ACLU about the Woosley Amendment? What do you see the relevance is to anything here?

By: dios

dios — Wed, 27 Jun 2007 08:48:06 -0800

How about not data-dumping every article you find on faith-based initiatives and instead structuring them into a coherent point?

By: dios

dios — Wed, 27 Jun 2007 08:58:06 -0800

And FYI- I'm trying to be a dick or mean to you or whatever conclusion you're likely to jump to. I'm be serious. We were having a reasoned dialog in this thread. Random link dumping without any sort of explanation or structure into a coherent point makes discourse near-impossible. Instead, the only point that is made is that you hate faith-based initiatives and there are other people who do too. We can't really address the specific legal objection to the opinion specifically or the practice generally when you merely present a generalized grievance.

By: dios

dios — Wed, 27 Jun 2007 08:59:22 -0800

And of course I meant to put the word "not" into that first sentence as should be obvious to anyone contextually--a mistake of omission that I frequently make. Let's all be big people and not jump on obvious typos.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 09:01:04 -0800

A Pennsylvania county has agreed not to support religious activities with public funds, in order to end a lawsuit charging that its contract with a faith-based prison ministry was unconstitutional. The lawsuit, brought two years ago by Americans United for Separation of Church and State and the American Civil Liberties Union of Pennsylvania, charged that a government-funded prison ministry known as the Firm Foundation employed only Christian staff and pressured inmates at the Bradford County Correctional Facility to pray and attend worship services. It operated the jail's only vocational training program... Government partnerships with faith-based organizations in prisons and elsewhere have come under the scrutiny of watchdog groups, as the Bush administration advances its Faith-Based and Community Initiative, a federal effort to promote such alliances. At the heart of many of the legal challenges aimed at these contracts is the question of just what religious activities the government may fund without violating First Amendment limits on government endorsement of religion.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 09:18:18 -0800

BP- That's already been posted. More to the point, you're actually demonstrating that the law is being obeyed, and that when there are violations, the law is enforced by the courts. The key is to find a violation that isn't resolved by litigation. Of course, the usage of 12-step Recovery programs as mandated treatment is probably its own sort of establishment violation, but it's one that we seem to have given a pass to for efficacy reasons.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 09:25:07 -0800

The key is to find a violation that isn't resolved by litigation. The key point is really that funding goes to groups which proselytize. Reading the article further: Of three defendants involved in the lawsuit, only Bradford County has agreed to a settlement. The consent order was filed with the U.S. District Court for the Middle District of Pennsylvania on April 3. Americans United and the Pennsylvania ACLU are in talks toward a similar settlement with the Pennsylvania Commission on Crime and Delinquency, according to AU attorney Alex Luchenitser. The legal challenge against the Firm Foundation is proceeding, he said... About the settlement reached Tuesday, Aden noted that Bradford County has not acknowledged any wrongdoing. Clearly the law is not being obeyed unless the offenders can be dragged into court. Even when they are confronted with the law, most appear to get away with violating it. Those that are unlucky enough to get caught don't even have to admit wrongdoing.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 09:38:43 -0800

Shabaz noted: "MentorKids recruits and hires only Christians as mentors," even requiring them to write an essay in which they must "Briefly describe how you might be able to share your Christian faith with a youth." He added: "Potential mentors receive a 'fact sheet' stating that 'mentors introduce children to the gospel of Jesus Christ, allowing them to build their lives on the solid foundation of God's love.'... MentorKids' also requires mentors to provide monthly reports on whether their mentee "seems to be progressing in relationship with God," and whether they have "participated in Bible Study;" "Attended Church;" or "accepted Christ this month."... In the same decision, Shabaz ruled in favor of HHS granting nearly $4.5 million to the Interfaith Health Program at Emory University in Capital Compassion Fund money to fund a "Strong Partners Initiative" in which Emory awarded money to eight or nine religiously-sponsored foundations (Strong Partner Foundations, or SPFs), who in turn gave out "sub-sub-awards" and matching grants to other groups, with preference to faith based community organizations "which have links to local congregations; and which attempt to engage body/mind spirit." The Foundation submitted evidence that 80% of these grants was awarded to religious organizations. Most of this money was designated and appeared to go toward setting up a faith-based bureaucracy, according to Annie Laurie Gaylor, co-president of the Freedom From Religion Foundation... Said Gaylor: "What is being legitimized by this decision is public funding of religiously-exclusionary groups which say 'anyone may apply,' but which admit giving preference to applicants of their own faith!" MentorKids did not return the federal grant funding it received. Critics argue that these programs effectively promote organized religions at the least by freeing up money raised by religious groups to be used for other purposes once taxpayer money is provided for particular social programs. ... There is no effective way to monitor programs to ensure that religious groups are not using taxpayer money to promote religion. For example, tax dollars support religion-based, abstinence-only sex education in schools across the country that include references to God and religious duty and result in students failing to receive the necessary information to help them make decisions about their sexuality. This study by the Hudson Institute (which claims to show that faith-based funding works without creating problems) indicates that 57% avoid problems by holding inherently religious services separately from the government-funded programming — that suggests that almost half are mingling religious services and government programs. The study also shows that the groups receiving government funds are almost all Christian. Id. Many programs promote Christianity as the means of addressing the social problem for which they are receiving funding. See the study by the Hudson Institute (35% of groups surveyed indicated that the program actively used faith) and this article on Teen Challenge and testimony given before Congress. Worse, Bush has specifically praised religious groups that provide social services that make religious services a requirement, implying that he sees this as a desired result of his initiative. See this article. Americans United for Separation of Church and State also reports that a pastor that directly endorsed Bush in the 2000 elections has received $1 million through the faith-based initiative. See this article. That tax support tears down the separation of church and state that is a cornerstone of American democracy. In light of the facts, anyone who still believes that faith-based initiatives are anything but the federal sponsorship of Christian faith by the GOP, using taxpayer monies, is a complete and utter fool.

By: homunculus

homunculus — Wed, 27 Jun 2007 09:47:18 -0800

Honor student suspended for marijuana free speech in Canada

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 09:48:55 -0800

People murder, rape, and steal, and often do not admit wrongdoing, even when convicted in court. Seriously, though, this is tough territory: the government can't simply deny funding to organizations because their members are religious. Once wrong-doing is alleged, the lawsuits proceed, but to presume guilt on the basis of religious affiliation is pretty troublesome. The big reason that disbursement patterns are so skewed towards protestant organizations is that most other religious folks know better than to get mired in the affairs of states. Despite what so many progressives think, the separation of church and state isn't there to protect the state from its fundamentalist populations: those yahoos still have their say democratically. Church/state separation is designed to protect churches from becoming embroiled in mundane affairs. Red tape, bureaucracy, and poor funding are more likely to distract a church from its mission than to somehow insidiously overthrow the government from within. On the other hand, some churches take their charitable responsibilities seriously, and they have the time but not the money to help out our least advantaged fellow citizens. So long as they don't discriminate against some sinners more than others, and so long as they don't misappropriate the funds to pay for proselytizing, I can't see why we wouldn't want to let them help. That said, I'd also like to see better oversight for the OFBI. I'm a pro-oversight kind of guy, and the Bush administration has allowed principled incompetence to reign in this realm as in most others.

By: Mental Wimp

Mental Wimp — Wed, 27 Jun 2007 10:06:28 -0800

Of course, the usage of 12-step Recovery programs as mandated treatment is probably its own sort of establishment violation, but it's one that we seem to have given a pass to for efficacy reasons. Last time I looked, there was no hard evidence of the success of 12-step programs, only a vocally supportive group of individuals involved in it. But no studies comparing its recidivism to doing nothing or to other programs.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 10:10:42 -0800

But no studies comparing its recidivism to doing nothing or to other programs. Your google-fu has failed you then.

By: dios

dios — Wed, 27 Jun 2007 10:12:24 -0800

The big reason that disbursement patterns are so skewed towards protestant organizations .... is that 80% or more of religious people in the United States are Christian. It stands to reason that the majority of aid going to faith-based organizations will be going to Christian faith-based organizations. No other group cracks 2% of the population. The only relevant question here is the one I asked ROU for citations to. Previously, 0% of the federal charitable aid went to faith-based organizations. The rules were cleared up so that faith-based organizations could compete for the aid. The question is what the breakdown is now. Then you have to drill down and look at efficacy rates of new groups to which groups were crowded out to determine whether this makes sense from a purely policy stand-point. But that question is separate and apart from the constitutional question which is one that the Supreme Court has already ruled upon. As I quoted above from the Court: "[Facially neutral activities] are not themselves specifically religious activities, and they are not converted into such activities by the fact that they are carried out by organizations with religious affiliations." Every time the Supreme Court has addressed this over the last 50+ years (including the Warren court and Burger Court--so it's not just this run-away 'conservative' Roberts Court bullshit being trotted out) which is around a dozen or times, the Supreme Court has found that the First Amendment does not prohibit government funds from going to relgious groups when the funds have a secular purpose. The Supreme Court has repeatedly made clear that this notion of a wall between church and state is a myth, but one that does not die even after a dozen or so rejections of it by various compositions of the Supreme Court.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 10:18:10 -0800

More on drug courts and 12-steps programs. This, of course, raises the question: if religious alternatives to secular policy initiatives are more successful even by secular standards, does the establishment clause prevent the state from using them? I rather suspect that it might.

By: dw

dw — Wed, 27 Jun 2007 10:24:03 -0800

Seriously, though, this is tough territory: the government can't simply deny funding to organizations because their members are religious. Once wrong-doing is alleged, the lawsuits proceed, but to presume guilt on the basis of religious affiliation is pretty troublesome. In the opinion of some, just being religious means you shouldn't even be allowed within 1000 miles of any Federal facility, which just means they're answering one wrong with another. I haven't seen anything that tells me faith-based groups are better or worse than secular groups at anything. Seems like the level of effectiveness and corruption overall is about the same. That said, I'd also like to see better oversight for the OFBI. I'm a pro-oversight kind of guy, and the Bush administration has allowed principled incompetence to reign in this realm as in most others. On the whole, OFBCI has been one of the few areas that has at least been working out of this White House, albeit with a host of problems and a lack of buy-in by most religious organizations afraid of being tainted by mammon. Here's the current Compassion Capital Fund beneficiaries. Lots of traditional social services organizations (Big Brothers, Easter Seals) and traditional religious social services groups (Jewish Federation). Intermixed you see black churches. There's a COGIC here, an Elijah there. And the black churches make sense -- they've been desperate for development capital for years. All that said, I think this program will live on in a Democratic administration. Congressional oversight would far better, though. The question is what the breakdown is now. Actually, we know the high-level numbers thanks to the OFBCI's own numbers. Here's 2005. 10.9% that FY.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 10:25:06 -0800

The only relevant question here is the one I asked ROU for citations to. Come on dios, I'm in agreement with you on the legal issues here. But that doesn't mean there aren't a number of other questions we might ask. Such as: What level of oversight is required to prevent the use of federal funds for programs outside of the scope of grant, such as proselytizing? Should a church, presented with the possibility of applying for federal funding to pay for a charitable project, decide instead to proceed on private donations? And, as above, what if religious alternatives are more efficacious than secular ones, say for marriage counseling, should the government reject those programs in favor of less effective but secular alternatives?

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 10:25:21 -0800

Once wrong-doing is alleged, the lawsuits proceed, but to presume guilt on the basis of religious affiliation is pretty troublesome. Well, we deny violent, mentally ill people the right to purchase and own guns, because we presume they will be more likely to commit a violent crime if we facilitate putting one in their hands. I'm not sure waiting for a mental patient to break the law/hurt people is smart. More to the point, the federal government facilitating a mental patient's illegal, damaging behavior is troubling. The empirical data suggest that religions do use federal monies to proselytize, through their captive audience (children, destitute adults) and through their employment and educational practices. This can be rationalized in a number of greasy ways, but the hard reality is that cold, hard federal dollars are being used to spread the word of the Lord, even with existing oversight. The GOP and its Supreme Court seem to think that only employing Christians to carry out charitable works, or for that matter forcing aid recipients to practice a specific religion constitutes secular aid. There are more fundamentalist groups than lawyers in the ACLU. Time will tell how these religious sponsorship deals work out.

By: homunculus

homunculus — Wed, 27 Jun 2007 10:26:54 -0800

Bong Hits 4 Bush

By: dios

dios — Wed, 27 Jun 2007 10:36:51 -0800

Such as: What level of oversight is required to prevent the use of federal funds for programs outside of the scope of grant, such as proselytizing? Same as for every other federal program. If reports of abuse are made, the OIG investigates. Do you think that the federal government is constantly auditing hospitals to ensure compliance with HIPAA, Stark, Medicare part B, and a litany of other federal regulations? No. They investigate when there are reports of malfeasance. There is nothing constitutionally different here. The same oversight that goes into whether Big Brother/Big Sister isn't skimming money to buy hookers and blow is the same oversight needed to monitor the faith-based organizations. If they are running afoul of the restrictions and a report is made, it should be investigated and the group prevented from receiving aid until compliant. That's how governmental funding works. Should a church, presented with the possibility of applying for federal funding to pay for a charitable project, decide instead to proceed on private donations? I don't know. Sounds like a personal choice to me. And, as above, what if religious alternatives are more efficacious than secular ones, say for marriage counseling, should the government reject those programs in favor of less effective but secular alternatives? The government should always at least maintain the illusion that it is focused on effective use of resources. If it knows Group A is more efficacious than Group B, then it should fund Group A. But Group A still must comply with the restrictions. The money must be primarily used for secular purposes, as the Supreme Court has said. There is no exemption to this restriction for efficacy.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 10:46:50 -0800

Well, we deny violent, mentally ill people the right to purchase and own guns, because we presume they will be more likely to commit a violent crime if we facilitate putting one in their hands. Will you listen to yourself for a moment? Do you honestly believe that this is a reasonable comparison? This is completely unnecessary histrionics: all you have to do to make your argument is look at the website: Kendall Christian School, Miama, FL: $49,360 to "improve capacity by hiring a staff member to develop a funding plan; providing training and mentoring to staff on development processes; providing leadership and fundraising training to the board; and enhancing the Web site to provide updated school information to the community." United Jesus Outreach Ministries, Canton, IL: to "instill and enhance motivation towards change in individuals experiencing life difficulties due to dysfunctional situations." The problem isn't that the people are dangerous and unstable and now armed with a deadly weapon. The problem is that these people are clueless and incompetent and are wasting federal funds.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 10:58:44 -0800

I don't know. Sounds like a personal choice to me. Certainly it is, or at least a communal and institutional one. The point is that there are questions beyond the legality which might effect the distribution of the funds. Specifically, there's a large swath of Christianity that a. understands charity as unpaid labor, b. is skeptical of entrenched bureaucracy, and c. doesn't seek secular power. The fact that many religious people prefer a strong secular state is tied to pluralism and the privatization of faith that many theologies actually celebrate. They remember the Wars of Religion, too, and they drew their own lessons from them.

By: dw

dw — Wed, 27 Jun 2007 11:07:24 -0800

The problem isn't that the people are dangerous and unstable and now armed with a deadly weapon. The problem is that these people are clueless and incompetent and are wasting federal funds. If you think this is clueless, incompetent, and wasting federal funds, I advise you to stay far, far away from NIH grant proposals. The stuff I've seen in funded NIH grants -- graft, corruption, faked science -- makes this stuff look quite tame.

By: dw

dw — Wed, 27 Jun 2007 11:26:06 -0800

I don't know. Sounds like a personal choice to me. Certainly it is, or at least a communal and institutional one. The point is that there are questions beyond the legality which might effect the distribution of the funds. Specifically, there's a large swath of Christianity that a. understands charity as unpaid labor, b. is skeptical of entrenched bureaucracy, and c. doesn't seek secular power. First off, everyone thinks charity is free. I worked at a place once where they had 35% overhead, and that really turned off donors. NPOs exist because of low-paid peons committed to The Cause. But based on my review of that list we've been bouncing around, it really looks more like these groups need money and are going to ask for it no matter where it comes from. That's why you keep seeing inner-city churches on the list. What do they have to lose competing for Federal grants? The fact that many religious people prefer a strong secular state is tied to pluralism and the privatization of faith that many theologies actually celebrate. They remember the Wars of Religion, too, and they drew their own lessons from them. This is another post in the Blue sometime, but the Second Great Awakening really messed that idea up here in this country, re-writing the founding myths so that everyone was a Patrick Henry sort of firebrand Christian. Religious fervor tends to swing back and forth in the US. We're coming off a 30-35 year period of public religiosity in this country, peaking with Dubya's election, and are moving towards a 30-35 year period of more private faith.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 11:50:55 -0800

Do you honestly believe that this is a reasonable comparison? The reason we have separation of church and state is, through the establishment and free exercise clauses, to protect minorities from the tyranny of a majority-led church-state. There are tangible harms caused to citizens not receiving government services because of illegal funding of a targeted subset of religious organizations — ask any Hurricane Katrina victim, for example.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 12:01:41 -0800

Umm, what? In what way does this link about Louisiana state red tape contribute to a discussion of federal funding for faith-based social services? Or is this more histrionic "look! look! suffering! I'm right and you're wrong about this difficult policy question because of some random link I didn't even read!"? Most of the people who lost their homes in Katrina were also people of faith.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 12:18:12 -0800

Histrionics? You protest way, way too much. Do these empirically religious programs take away funding from real needs or not?

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 12:32:36 -0800

Seriously, BP. Read your own link before you post it: "The federal government has provided $7.5 billion for The Road Home program, but officials say getting the money to homeowners is the state's responsibility." The money is there. It's allocated, but not being disbursed, apparently because Louisiana is either too lazy or too tangled in federal red tape to actually cut the checks. Your link is COMPLETELY IRRELEVANT.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 12:39:40 -0800

Your link is COMPLETELY IRRELEVANT. Ugh. Keep reading: But the bottlenecks aren't limited to The Road Home program. Andy Kopplin says other delays are the result of a requirement that the state and parishes put up 10 percent matching funds, and also because of disputes with FEMA over some repair costs. Don Powell says the federal government has bent over backward to waive requirements but that some requirements are in place to protect taxpayer funds. But Senate Homeland Security Committee Chairman Joseph Lieberman says that Hurricane Katrina was such a catastrophic disaster that the usual rules should be set aside. Strikes me as more than a bit hypocritical of the government to protect taxpayers here. Course, you'd have had to read the article to GET TO THIS PART.

By: anotherpanacea

anotherpanacea — Wed, 27 Jun 2007 12:50:03 -0800

Oh God, you're right! How could I have been so blind! We should just give money to whomever asks for it! Why... I had all but forgotten about the mansion I had in New Orleans that was destroyed.... Only a vacation home, of course, but still very dear to me....

By: dw

dw — Wed, 27 Jun 2007 13:58:41 -0800

Histrionics? You protest way, way too much. Hey, could I see the part where you equate religious people to the criminally insane again? Well, we deny violent, mentally ill people the right to purchase and own guns, because we presume they will be more likely to commit a violent crime if we facilitate putting one in their hands. I'm not sure waiting for a mental patient to break the law/hurt people is smart. More to the point, the federal government facilitating a mental patient's illegal, damaging behavior is troubling. Yeah, that part. Juxtaposition is 9/10ths of irony, you know.

By: Blazecock Pileon

Blazecock Pileon — Wed, 27 Jun 2007 15:20:42 -0800

Hey, could I see the part where you equate religious people to the criminally insane again? Erm, that was a metaphor to explain why we have these sorts of laws. Don't misinterpret stuff.

By: ROU_Xenophobe

ROU_Xenophobe — Wed, 27 Jun 2007 22:45:20 -0800

Do you have any hard evidence for this? None whatsoever. ISTR Bush saying that he would actually favor faith-based organizations, but I'm way too uninterested to go look it up. I freely admit that it might not have happened. It merely seems the MO for the current administration to reward people who seem loyal to them with jobs and money, and the idea that Bush et al would administer any grant program with even the appearance of neutral efficiency seems, at this point, ridiculous to me.

By: amberglow

amberglow — Thu, 28 Jun 2007 08:04:35 -0800

It merely seems the MO for the current administration to reward people who seem loyal to them with jobs and money, and the idea that Bush et al would administer any grant program with even the appearance of neutral efficiency seems, at this point, ridiculous to me. Grants Flow To Bush Allies On Social Issues (WaPo, 06) Redefining Rights in America: The Civil Rights Record of the George W. Bush Administration, 2001–2004 -- ...page 9: In fact, the faith-based initiative's only civil rights significance may be that it actually allows employment discrimination. ... (pdf linked there)

By: anotherpanacea

anotherpanacea — Thu, 28 Jun 2007 08:44:19 -0800

Parents involved in Community Schools v. Seattle School District No. 1 et al

By: anotherpanacea

anotherpanacea — Thu, 28 Jun 2007 09:09:54 -0800

They've done it. Resegregation is now an option, so long as it is not officially approved. Kennedy's narrow concurrence controls, and he argues that the programs were not narrowly tailored but that the government still has a legitimate interest in racial diversity. However, it's pretty clear that the class of 'narrowly tailored' strategies to accomplish diversity has been almost evacuated. Like it or not, it's the end of an era.

By: amberglow

amberglow — Thu, 28 Jun 2007 10:55:06 -0800

Like it or not, it's the end of an era. Totally, and it's disgusting. ... "While I join Justice Breyer's eloquent and unanswerable dissent in its entirety, it is appropriate to add these words," Justice Stevens wrote. "There is a cruel irony in the chief justice's reliance on our decision in Brown vs. Board of Education." Today's ruling breaks faith with the 1954 ruling, Justice Stevens asserted. "It is my firm conviction that no member of the court that I joined in 1975 would have agreed with today's decision," he wrote. The decision today runs to 185 pages, including the dissents. It was eagerly awaited by the National School Boards Association and by the Council of the Great City Schools, representing 66 urban districts, which had filed briefs on behalf of Seattle and Louisville and had warned of disruption if the justices overturned lower court rulings upholding the diversity plans. The Bush administration participated as a "friend of the court" on behalf of the plaintiffs who challenged the diversity plans.

By: amberglow

amberglow — Thu, 28 Jun 2007 10:56:59 -0800

And wasn't Roberts all about respecting precedent when he was obviously lying before Congress?

By: Mental Wimp

Mental Wimp — Thu, 28 Jun 2007 11:07:37 -0800

Your google-fu has failed you then. No, and actually I don't rely on Google to find primary sources. Note that the linked article refers to drug court programs in general, not 12-step programs. Often they are 12-step, but often they aren't, and it relies on other, secondary research: "NPC Research has performed process, outcome, and cost evaluations". The other link isn't a study either, but a law article. The Cochrane Collaboration did a systematic review in 2006 and concluded "No experimental studies unequivocally demonstrated the effectiveness of AA or TSF approaches for reducing alcohol dependence or problems. One large study focused on the prognostic factors associated with interventions that were assumed to be successful rather than on the effectiveness of interventions themselves, so more efficacy studies are needed." (Ferri M. Amato L. Davoli M. Alcoholics Anonymous and other 12-step programmes for alcohol dependence. Cochrane Database of Systematic Reviews. 3:CD005032, 2006) I have searched Medline, PsychInfo, and several other databases for at least one study that isn't fraught with confounding, selection or reverse causality bias, e.g., a decent randomized trial comparing 12-step to other treatments or doing nothing or at least a well-designed epidemiologic study with a decent attempt at deconfounding, but nada. Much of the literature is reviews of these badly done studies concluding that if those self-selecting to treatment and staying there have less recidivism that those not, treatment must be the cause, not the differences in the individuals who self-select. This is ironic in the face of the mantra that the first requirement for change is that you have to want to change. More astounding would be if those who show up aren't more motivated to stay off the sauce than those who don't, but I digress. These reviews contain statements like the following: "Correlational and natural history studies point to the value of Alcoholics Anonymous membership in fostering stable abstinence." (Saunders, John B. International Review of Psychiatry. Vol 1(1-2) Mar 1989, 121-137) There are also a lot of studies that look at "process" and find that the process changes psychosocial factors measured on instruments that SHOULD lead to change or that at least predict staying in the 12-step programs. And then the smattering of small, poorly controlled studies. That ain't proof. If I could find one, just one randomized trial demonstrating efficacy, or at least a respectable cohort study, I would seriously consider the claim, but the very fact that no one has ever done one makes me highly suspicious.

By: pyramid termite

pyramid termite — Thu, 28 Jun 2007 11:15:45 -0800

Resegregation is now an option, so long as it is not officially approved. it always has been people have moved out of the city to the suburbs to resegregate schools people have pulled their kids out of the public schools and into private schools, while voting down taxes and letting the public schools go to hell, all so they could resegregate it's unfortunate, but true

By: dios

dios — Thu, 28 Jun 2007 12:22:15 -0800

Ok, I read the opinion. There is no end of an era. You people really, really, really ought to consider reading opinions instead of taking whatever slanted rant you find on your favorite political internet page as gospel. The Court did not authorize resegregation. The Court did not overturn Brown. The Court did not "end an era." Kennedy's concurrence is the controlling opinion, and if you read it and understood what it was saying, you wouldn't be making these asinine claims.

By: anotherpanacea

anotherpanacea — Thu, 28 Jun 2007 18:04:53 -0800

Tell me... what part of: "Kennedy's narrow concurrence controls, and he argues that the programs were not narrowly tailored but that the government still has a legitimate interest in racial diversity" didn't you understand? Of course the court doesn't rule as a matter of law that we should resegregate. But Kennedy leaves a large municipal government with no workable policies. The Seattle program is one of the best and most careful in the nation, and even it fails to reach his high standards. So you tell me: what would count as a workable program under Kennedy? One that only corrects official racism, right? That's the Wygant standard he sets out: government can only correct its own abuses, not the abuses of its people. He himself argues that "School districts that had engaged in de jure segregation had an affirmative constitutional duty to desegregate; those that were de facto segregated did not." (98) Yet Jefferson County -did- have legal segregation. Without admitting it, Kennedy has handed us a judgment that overrules the corrective measures there, apparently because the remaining racial issues there are due to de facto, societal racism rather than holdovers from legal segregation. So yeah: it's literally the end of an era. According to the Supreme Court, Kentucky has had all the resegregation it needs (the 'last vestiges of prior segregation' have been eliminated since 2000!), and affirmative measures are no longer acceptable in non-slave states like Washington. if you read it and understood what it was saying, you wouldn't be making these asinine claims. My point, exactly.

By: amberglow

amberglow — Thu, 28 Jun 2007 18:58:45 -0800

... As Justice Breyer rightly asked in dissent, "What has happened to stare decisis?" Breyer correctly observed that Roberts had distorted the Court's precedents, "written out of the law" a host of Supreme Court decisions, and disingenuously reversed the course of constitutional law. Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them. ...

By: The World Famous

The World Famous — Thu, 28 Jun 2007 19:02:39 -0800

Whereas Brown v. Board of Education had held that government could not constitutionally assign black and white students to different schools in order to segregate them, Roberts had the audacity to cite Brown for the extraordinary proposition that government cannot constitutionally assign black and white students to the same school in order to integrate them. Whereas Brown held that gov't couldn't constitutionally assign people to schools based on their race, the Court has now held exactly the same thing, again. "What has happened to stare decisis?" He could ask the same thing about Brown.

By: Blazecock Pileon

Blazecock Pileon — Thu, 28 Jun 2007 21:15:07 -0800

Breyer correctly observed that Roberts had distorted the Court's precedents More judicial activism from the conservatives, once again.

By: dios

dios — Fri, 29 Jun 2007 08:00:18 -0800

Tell me... what part of: "Kennedy's narrow concurrence controls, and he argues that the programs were not narrowly tailored but that the government still has a legitimate interest in racial diversity" didn't you understand? Probably the part where you then went on about "end of an era" politically-charged horseshit. If you actually read and understood the Kennedy concurrence, you wouldn't have made such an asinine comment. The Seattle program is one of the best and most careful in the nation, and even it fails to reach his high standards. So you tell me: what would count as a workable program under Kennedy? One that only corrects official racism, right? That's the Wygant standard he sets out: government can only correct its own abuses, not the abuses of its people. And? Constitutional decisions cannot be made on the basis of the wholly conclusory opinion that Seattle had "one of the best and most careful" in the nation. As any constitutional rule forumlated has to apply neutrally to Seattle and Selma and Boston, as well as future socially popular theories of race relations. Thomas actually has some powerful language that forcefully addresses the dissent and what I perceive to be your point, when he addressed with citations how the dissent's argument mirrored the segregationist's arguments in Brown. Thomas noted:

It is no answer to say that these cases can be distinguished from Brown because Brown involved invidious racial classifications whereas the racial classifications here are benign. See post, at 62. How does one tell when a racial classification is invidious? The segregationists in Brown argued that their racial classifications were benign, not invidious. See Tr. of Oral Arg. in Briggs v. Elliott, O. T. 1953, No. 2, p. 83 ("It [South Carolina] is confident of its good faith and intention to produce equality for all of its children of whatever race or color. It is convinced that the happiness, the progress and the welfare of these children is best promoted in segregated schools"); Brief for Appellees on Reargument in Davis v. County School Board, O. T. 1953, No. 3, p. 82–83 ("Ourmany hours of research and investigation have led only to confirmation of our view that segregation by race in Virginia's public schools at this time not only does not offend the Constitution of the United States butserves to provide a better education for living for the children of bothraces"); Tr. of Oral Arg. in Davis v. County School Board, O. T. 1952, No. 3, p. 71 ("[T]o make such a transition, would undo what we havebeen doing, and which we propose to continue to do for the uplift and advancement of the education of both races. It would stop this march of progress, this onward sweep"). It is the height of arrogance for Members of this Court to assert blindly that their motives are better than others. ... JUSTICE BREYER's good intentions, which I do not doubt, have the shelf life of JUSTICE BREYER's tenure. Unlike the dissenters, I am unwilling to delegate my constitutional responsibilities to local school boards and allow them to experiment with race-based decision making on the assumption that their intentions will forever remain as good as JUSTICE BREYER's. See The Federalist No. 51, p. 349 (J. Cooke ed. 1961)("If men were angels, no government would be necessary"). Indeed, the racial theories endorsed by the Seattle school board [ed: Your so-called "best in the country"] should cause the dissenters to question whether local school boards should be entrusted with the power to make decisions on the basis of race. The Seattle school district's Website formerly contained the following definition of "cultural racism": "Those aspects of society that overtly and covertly attribute value and normality to white people and whiteness, and devalue, stereotype, and label people of color as 'other,' different, less than, or render them invisible. Examples of these norms include defining white skin tones as nude or flesh colored, having a future time orientation, emphasizing individualism as opposed to a more collectiveideology, defining one form of English as standard . . . ." See Harrell, School Web Site Removed: Examples of Racism Sparked Controversy,Seattle Post-Intelligencer, June 2, 2006, p. B1. After the site was removed, the district offered the comforting clarification that the site was not intended " 'to hold onto unsuccessful concepts such as melting pot or colorblind mentality.'"More recently, the school district sent a delegation of high school students to a "White Privilege Conference." See Equity and Race Relations White Privilege Conference, https://www.seattleschools.org/area/equityandrace/whiteprivilegeconference.xml. One conference participant described "white privilege" as "an invisible package of unearned assets which I can count on cashing in each day, but about which I was meant to remain oblivious. White Privilege is like aninvisible weightless knapsack of special provisions, maps, passports,codebooks, visas, clothes, tools, and blank checks." See White Privilege Conference, Questions and Answers, http://www.uccs.edu/~wpc/faqs.htm; see generally Westneat, School District's Obsessed with Race,Seattle Times, Apr. 1, 2007, p. B1 (describing racial issues in Seattleschools). ... Can we really be sure that the racial theories that motivated Dred Scott and Plessy are a relic of the past or that future theories will be nothing but beneficent and progressive? That is a gamble I am unwilling to take, and it is one the Constitution does not allow. The plans before us base school assignment decisions on students' race. Because "[o]ur Constitution is color-blind,and neither knows nor tolerates classes among citizens," such race-based decisionmaking is unconstitutional.

Bemoaning Seattle's deprivation of their ability to engage in social engineering is not a reasonable critique of the opinion or its Constitutional basis. As Justice Kennedy made clear, there are constitutionally permissible methods to promote diversity and better schools short of this kind of unconstitutional race classification:

School boards may pursue the goal of bringing together students of diverse backgrounds and races through other means, including strategic site selection of new schools;drawing attendance zones with general recognition of thedemographics of neighborhoods; allocating resources forspecial programs; recruiting students and faculty in a targeted fashion; and tracking enrollments, performance, and other statistics by race. These mechanisms are race conscious but do not lead to different treatment based on a classification that tells each student he or she is to be defined by race, so it is unlikely any of them would demand strict scrutiny to be found permissible. Executive and legislative branches, which for generations now have considered these types of policies and procedures, should be permitted to employ them with candorand with confidence that a constitutional violation does not occur whenever a decisionmaker considers the impacta given approach might have on students of different races. Assigning to each student a personal designation according to a crude system of individual racial classifications is quite a different matter; and the legal analysis changes accordingly. .... The argument ignores the dangers presented by individual classifications, dangers that are not as pressingwhen the same ends are achieved by more indirect means. When the government classifies an individual by race, itmust first define what it means to be of a race. Who exactly is white and who is nonwhite? To be forced to live under a state-mandated racial label is inconsistent with the dignity of individuals in our society. ... The decision today should not prevent school districtsfrom continuing the important work of bringing together students of different racial, ethnic, and economic backgrounds. Due to a variety of factors—some influenced by government, some not—neighborhoods in our communitiesdo not reflect the diversity of our Nation as a whole. Those entrusted with directing our public schools can bring to bear the creativity of experts, parents, administrators, and other concerned citizens to find a way to achieve the compelling interests they face without resorting to widespread governmental allocation of benefits and burdens on the basis of racial classifications.

There are other ways to achieve the solution sought that are constitutionally permissible. Though the other ways may be more less efficient or more time and resource consuming, they have the virtue of not engaging in state-based classifications that run afoul of the Constitution. This "end of an era" horseshit" is just simple-minded hackery designed to be bring political passions to boil. A serious legal examination of the opinions show that the controlling opinion of Kennedy is fairly reasonable and grounded in stare decisis.

By: anotherpanacea

anotherpanacea — Fri, 29 Jun 2007 08:47:13 -0800

This "end of an era" horseshit" is just simple-minded hackery designed to be bring political passions to boil. Seriously, tone down the rhetoric; you're being childishly rude. I make no claim about whether this is a good decision, simply that something fundamental has changed. It is the end of the era, because for the first time the Supreme Court has agreed that 'the last vestiges' of official, legalized segregation have been dealt with, to the 'extent practicable.' You know as well as I that that's a pretty big claim, and that the SC had not previously ruled on it. That means that the Wygant standard is going to be phased out: no more practicable desegregation means that the housing market and the varying preferences of individuals, both racist and egalitarian, will hold sway in public schooling. As of now, the Supreme Court has ruled that there's no segregation left to fix that wouldn't do more harm than good. In addition to that obvious game-changing move, I would argue that as a matter of practicable policies, the 'narrowly tailored' test is now an impossible obstacle. Calls for ingenuity aside, nothing like the current diversity regime will now be tolerated in public schools. Of course, you can prove me wrong: innovate a racial diversity scheme that ignores 'individual racial classifications.' Go ahead. Except, of course, that you won't, because you know as well as I that it's only 'technically' possible, not practically so. It's an empty class: as a matter of technical legality some miraculous scheme might suffice, but there aren't any human, messy political methods that will achieve this level of omniscient luck. It's the 'strict in theory, fatal in fact' problem all over again. Maybe that's okay, but it's certainly a big change. Bah. Why bother? You'll just attack me for your perception of my political leanings. Ironic, isn't it, since that's what people do to you?

By: dios

dios — Fri, 29 Jun 2007 09:35:16 -0800

Bah. Why bother? You'll just attack me for your perception of my political leanings. Please. Out of the all the people in this thread, I'm the one person who is actually focusing on the legal opinion itself instead of playing political games. You seem to be somewhat interested in the legal ruling, but you made political conclusions which are not based on the actual holding. You are hedging now, but you posted this at first: They've done it. Resegregation is now an option, so long as it is not officially approved. Like it or not, it's the end of an era. This is the kind of political horse-hockey that you read from partisan individuals. I'm not criticizing you for your politics because I don't really know what they are or care. What I am criticizing you for is politicizing of this opinion. The same thing that newspapers have been doing. This opinion doesn't change the law, your protestations notwithstanding. What it does change is policies implemented by governments which were an outgrowth and extension on prior court rulings. You have now twice suggested this changed the Wygant standard, an argument that I can't even begin to find in any of the opinions in this case. Where did you come up with this argument? It seems to me to be wholly made-up. The dissent doesn't make it, and none of the majority opinions reject Wygant. I think you are maybe confused there. The relevant opinions here are Brown v. Board and Grutter v. Bolllinger. But neither of those opinions reversed. Quite simply, there is no fundamental legal change of doctrine in Kennedy's controlling opinion. Most lay people seem to think that Brown v. Board ordered integration. That is fundamentally incorrect. Brown v. Board prohibited segregation. Those two concepts are distinct and opposed. That is, the holding was not that districts had to define racial makeups and make them equal; the holding was that it is constitutionally impermissible to make any differential treatment based on racial classifications. The Plan in Seattle violated that principle of Brown. What legal principle do you think this opinion changes?

By: pyramid termite

pyramid termite — Fri, 29 Jun 2007 09:52:58 -0800

What I am criticizing you for is politicizing of this opinion. The same thing that newspapers have been doing. the court system is not on mount olympus somehow removed from all political influence and bias and it's rather naive of you to expect that discussions of a court's decision aren't going to have a political aspect in fact, claims that a court should or should not be politicized is in and of itself a statement of political philosophy Most lay people seem to think that Brown v. Board ordered integration. well, it didn't The proportion of black students in majority-white schools stands at "a level lower than in any year since 1968." The four most segregated states for black students, according to a recent study by the Civil Rights Project, are New York, Michigan, Illinois and California. In New York, only one black student in seven goes to a predominantly white school.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 10:00:14 -0800

dios, I don't know how you have the time or patience to type out well-thought-out legal analysis here (I certainly don't), but I really appreciate it. I don't always agree with you, but I appreciate your legal analysis.

By: dios

dios — Fri, 29 Jun 2007 10:05:37 -0800

the court system is not on mount olympus somehow removed from all political influence and bias and it's rather naive of you to expect that discussions of a court's decision aren't going to have a political aspect I can see you wholly missed my point. I'll make it real simple: we have an opinion. The opinion merely says X. What is revolting is people spinning X to inflame political passions by mischaracterizing the opinion. That is exactly what anotherpanacea did and of which I was critical. He mischaracterized the actual holding of the opinion a politically-charged way. in fact, claims that a court should or should not be politicized is in and of itself a statement of political philosophy I'm sure that seemed clever, but it's actually a rather insipid point. I guess we could call all legal philosophy "political philosophy" if we want to be glib. But it doesn't advance the actual discussion very far.

By: amberglow

amberglow — Fri, 29 Jun 2007 11:05:37 -0800

it's actually a rather insipid point Just like this? The Chief Justice of the United States, at the climactic finale of the most far-reaching Supreme Court decision of this term, lyrically writes: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." How profound. Was it Learned Hand or Oliver Wendell Holmes who wrote the comparably unforgettable, "If guns are outlawed, only outlaws will have guns." John Roberts' aphorism, as well as his entire decision in the Louisville/Seattle school district cases, exhibits three features that are characteristic of the conservative movement's highly effective approach to argumentation by 1) obfuscating real-world evidence and history; 2) inverting liberal values to advance unpopular and unarticulated right-wing ends; and 3) shifting the public's focus from a genuine problem to an artificial one: ...

By: amberglow

amberglow — Fri, 29 Jun 2007 11:09:19 -0800

The actual lawyers in Brown have something to say too--not insipid, tho: ... "All that race was used for at that point in time was to deny equal opportunity to black people," Judge Carter said of the 1950s. "It's to stand that argument on its head to use race the way they use it now." Jack Greenberg, who worked on the Brown case for the plaintiffs and is now a law professor at Columbia, called the chief justice's interpretation "preposterous." "The plaintiffs in Brown were concerned with the marginalization and subjugation of black people," Professor Greenberg said. "They said you can't consider race, but that's how race was being used." William T. Coleman Jr., another lawyer who worked on Brown, said, "The majority opinion is 100 percent wrong." "It's dirty pool," said Mr. Coleman, a Washington lawyer who served as secretary of transportation in the Ford administration, "to say that the people Brown was supposed to protect are the people it's now not going to protect." ...

By: pyramid termite

pyramid termite — Fri, 29 Jun 2007 11:09:29 -0800

I'm sure that seemed clever, but it's actually a rather insipid point. pointing out that your expectations of people are unrealistic and your preferred separation of law and politics is a political stance is not insipid ... in fact, major historical political arguments have centered around this But it doesn't advance the actual discussion very far. the discussion isn't going to be advanced very far for you anyway because what you want from it and what other people here want from it are two different things you want a strictly legal discussion ... i'm sure there are places you can find one, but you're not going to get one here ... you have an informed and professional viewpoint, but that doesn't mean it's the only facet of an issue worth discussing or that non-legal opinions online or in newspapers don't eventually have legal consequences

By: dw

dw — Fri, 29 Jun 2007 11:20:19 -0800

The Chief Justice of the United States, at the climactic finale of the most far-reaching Supreme Court decision of this term, lyrically writes: "The way to stop discrimination on the basis of race is to stop discriminating on the basis of race." How profound. Didn't Kennedy reject that line of thinking outright, therefore making it a minority opinion? I've wondered if amberglow has a bot that hits the Google API to find things to quote then dump into threads. Or if amberglow is a bot. Or if mathowie built a super-sekkrit API that allows you to build your own mechanical Turk bot to handle your posting while you're off making a sandwich or at work or something.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 11:42:35 -0800

I think the disconnect between dios and others in this discussion is similar to the disconnect between the attorneys who argued Brown and the holding in the Brown case. The attorneys in Brown apparently were trying to convince the Court based on the position that "[t]he plaintiffs in Brown were concerned with the marginalization and subjugation of black people." The Court's ruling, on the other hand, stood for the proposition not only that marginalization and subjugation of one particular race was wrong, but that discrimination on the basis of race is wrong. Greenberg's statement is telling: He is clearly less concerned about stopping discrimination on the basis of race than he is about advancing the cause of one particular race. Obviously, his position is based largely on the historic marginalization of that particular race, and that goes a long way toward making his position seem reasonable. But there are at least two fundamentally different ways that people see Brown. One is the view that Brown stands in favor of Government stepping in to "equalize" societal dynamics and force people to change the way they view race by forcing them to interact with people of other races. That view implies that Government is capable of recognizing not only what society's faults are, but also identifying effective ways of curing those faults and acting in good faith to do so. At play are both the fundamental belief that discrimination is not always bad and the fundamental belief that Government is equipped to enforce morality/justice/ethics/whathaveyou where race dynamics are concerned. The other way is the view that Brown stands for the proposition that discrimination on the basis of race is never ok, and that Government should never be allowed to engage in it, no matter what. It relies on the fundamental belief that Government is a bureaucracy not equipped to recognize what society's faults are and not equipped to identify and execute effective means of curing society's ills. At play are the fundamental beliefs that Government is ill-equipped to enforce morality/justice/ethics/whathaveyou where race dynamics are concerned and that discrimination on the basis of race is always bad, no matter what. Now, you can call out either view as being short-sighted or hypocritical, but you're not likely to convince either to abandon its fundamental assumptions. You can point out that Republicans don't really believe that the nanny state is bad, since they want the state to tell people they can't have abortions or marry their lover. You can point out that Democrats don't really believe that the state shouldn't legislate morality, since they want the state to force racial integration and ban guns. But those arguments are pointless and just add to the noise. There are 5 people on the Supreme Court who believe that race discrimination by Government is either never constitutionally allowed or is only allowed in such extremely limited circumstances that it is almost never allowed (maybe if the discriminator is University of Michigan School of Law). There are 4 people on the Supreme Court who believe that sometimes it's allowed, and that considerable leeway should be given to governmental discrimination that seems to have its heart in the right place. But 90% of this thread could be replaced by simple statements that the posters either agree with the majority or agree with the minority. The Justices are all smarter than anyone here, and their clerks are better writers than us, most of the time. But I wouldn't replace most of it, since I am thoroughly entertained by dios' legal approach contrasted with anotherpanacea's philosopher's approach to armchair legal analysis.

By: amberglow

amberglow — Fri, 29 Jun 2007 12:05:03 -0800

But there are at least two fundamentally different ways that people see Brown. One is the view that Brown stands in favor of Government stepping in to "equalize" societal dynamics and force people to change the way they view race by forcing them to interact with people of other races. Except that forcing is not at all a relevant issue in these 2 cases. The parents were pissed because their white kids didn't get to go to their first choice schools in one case (out of many choices, btw--no forcing, and there's no way all kids get to go to their first choice anywhere), and in the other, race was only used as a "tiebreaker". No forcing, and no imposing beyond what all school districts do.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 12:08:44 -0800

The parents were pissed because their white kids didn't get to go to their first choice schools in one case (out of many choices, btw--no forcing, and there's no way all kids get to go to their first choice anywhere) They weren't forced to not go to their first choice school? and in the other, race was only used as a "tiebreaker". No forcing, and no imposing beyond what all school districts do. The policy was to use race as a tiebreaker. Did the decisionmakers have a choice not to follow the policy, or did the policy force them to use race as a tiebreaker?

By: amberglow

amberglow — Fri, 29 Jun 2007 12:11:51 -0800

Chief Justice Roberts said such programs were "directed only to racial balance, pure and simple," a goal he said was forbidden by the Constitution's guarantee of equal protection. This is factually a blatant lie. Neither of the programs in these cases did that.

By: amberglow

amberglow — Fri, 29 Jun 2007 12:17:01 -0800

They weren't forced to not go to their first choice school? The policy was to use race as a tiebreaker. Did the decisionmakers have a choice not to follow the policy, or did the policy force them to use race as a tiebreaker? Your own justification is about forcing people to do something, not to not do something. Their first choices were full, and they were assigned elsewhere--it happens all over the country. In no citywide school district do kids have any guarantees they'll get into their first choice school. That's why it's called "choices". The kids choose 1 or many options, and if they can't get into any of those, they get assigned to their local school if there's space. For the other case: The decisionmakers had rules and policies set in place for many reasons--racial and class diversity among them, but not the only reasons. Just as in all school districts.

By: amberglow

amberglow — Fri, 29 Jun 2007 12:18:17 -0800

For the majority to paint this as only about race was absolutely false and incorrect.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 12:22:49 -0800

Huh?

By: amberglow

amberglow — Fri, 29 Jun 2007 12:25:17 -0800

The parents lost at every single lower court. Ever wonder why that was?

By: amberglow

amberglow — Fri, 29 Jun 2007 12:33:55 -0800

PICS (Seattle case) : PICS is comprised of parents from neighborhoods around the city whose children have been or will likely be denied admission to the high schools of their choice because of their race. (full case history there) Except that they never proved that it was "because of their race" and not because of oversubscription, or not enough neighborhood schools, or any other criteria--and they are an organization that only wants neighborhood schools. It's not the district that was discriminating based on race alone, but these parents.

By: dios

dios — Fri, 29 Jun 2007 12:38:15 -0800

Where do you get your information, amberglow? Because it is sure as shit not from the opinions themselves. Every single time you make a claim about what the opinions say or what the facts are, you are completely wrong.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 12:39:37 -0800

The parents lost at every single lower court. Ever wonder why that was? No, I never did. And I still don't.

By: amberglow

amberglow — Fri, 29 Jun 2007 12:42:52 -0800

They also admit on their site that Current Ballard High School is over-crowded. Too many neighborhoods are relying on access to one high school. How are all the local kids supposed to get into the over-crowded local schools? And if the problem is citywide and it's actually not enough school space, why bring a case based on race alone when it's actually school funding/construction/expansion and overcrowding that is the issue?

By: dios

dios — Fri, 29 Jun 2007 12:45:16 -0800

Neither of the programs in these cases did that. posted by amberglow at 2:11 PM on June 29 [+] [!] Except that they never proved that it was "because of their race" and not because of oversubscription, or not enough neighborhood schools, or any other criteria--and they are an organization that only wants neighborhood schools. It's not the district that was discriminating based on race alone, but these parents. posted by amberglow at 2:33 PM on June 29 How are all the local kids supposed to get into the over-crowded local schools? And if the problem is citywide and it's actually not enough school space, why bring a case based on race alone when it's actually school funding/construction/expansion and overcrowding that is the issue? posted by amberglow at 2:42 PM on June 29 Wha? amberglow, you should really read the opinions instead of summaries and off-site things if you want to talk about the opinions. Because your statements have nothing to do with the reality of what the cases were about.

By: Blazecock Pileon

Blazecock Pileon — Fri, 29 Jun 2007 12:57:51 -0800

Because your statements have nothing to do with the reality of what the cases were about. Neither do yours, suddenly, when it is shown how and where you are factually wrong.

By: homunculus

homunculus — Fri, 29 Jun 2007 13:04:37 -0800

Stare Decisis v. Ugly Babies

By: dw

dw — Fri, 29 Jun 2007 13:04:59 -0800

They also admit on their site that Current Ballard High School is over-crowded. Too many neighborhoods are relying on access to one high school. No, no, no, no, no. Ballard High is overcrowded because the district is remodeling schools thanks to a bond issue. It was one of the first schools remodeled (along with Franklin), about eight years ago. Ballard instantly shot to the top of the "desireable" list after that. West Seattle followed, and that sucked kids out of Rainier Beach and Chief Sealth. Roosevelt is now the #1 destination thanks to their reopening last fall, and next spring it will be Garfield at the top of the list. (The new Garfield and Quincy Jones Performing Arts Center look to be spectacular.) What drove the lawsuit wasn't about racism more than parents feeling like their kids deserved to go to the newest school and getting pissed when they were declined. They weren't sending Ballard kids down to white-minority Rainier Beach but to the highly integrated but far older Garfield and Franklin.

By: amberglow

amberglow — Fri, 29 Jun 2007 13:08:57 -0800

then why do the parents use race as their only issue in the lawsuits, dw? Seriously. The School Plans at Issue -- scotusblog

By: amberglow

amberglow — Fri, 29 Jun 2007 13:11:16 -0800

What drove the lawsuit wasn't about racism more than parents feeling like their kids deserved to go to the newest school and getting pissed when they were declined. Show us that in the actual lawsuits. And why is that reason enough to sue anyway? Not every kid can go to the newest school.

By: amberglow

amberglow — Fri, 29 Jun 2007 13:14:17 -0800

No, no, no, no, no. Those are their own words, dw. They are the group that brought the suit and that's their site.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 13:20:25 -0800

Each student initially offered a choice of high school. Plan takes effect at any one school only if too many students of one race choose a school, pushing it off the allowed variations from the 60-40 goal. When that happens, students permitted at that school are chosen by four methods – called "tiebreakers." Race is the second one. (from amberglow's link) So there you go, right there. I assume that this latest string of comments regarding why the parents were suing is aimed at making a belated standing argument? What makes you think that the Supremes just ignored standing?

By: amberglow

amberglow — Fri, 29 Jun 2007 13:25:18 -0800

dw: If they had brought the suit for the reasons you state, they would have been dismissed right away--is that why they used race? Or do they actually believe that kids are being denied their first choice --out of multiple choices each kid makes-- solely because of race? (which is objectively not true)

By: The World Famous

The World Famous — Fri, 29 Jun 2007 13:33:57 -0800

They brought the lawsuit because they are upset about a race-based selection criterion and wanted to bring a test case in order to prompt a decision just like the one they got. If the case wasn't really prompted by the race issues, they wouldn't have stuck with it all the way to the Supremes.

By: amberglow

amberglow — Fri, 29 Jun 2007 13:37:52 -0800

Race is the second one. That's key, right there. It's very clear. I think the fact that the Seattle parents lost and lost and lost yet still pursued this case based solely on race -- when the district's stated policies and actions are clearly not solely based on racial criteria -- and the majority opinions are also solely about race (except for Kennedy's) -- is astounding. What basis is there for deciding solely on race when neither of the districts use race as their sole criteria? When neither of the districts deny kids a range of options and choices?

By: dios

dios — Fri, 29 Jun 2007 13:40:59 -0800

You don't have a fricking clue what this case is about amberglow, and it's painfully obvious that you did not read or understand that opinions. The case is about the fact that the school used race AT ALL as a tie-breaker, and they sent students to a school based on race. The school established racial classifications which the Court found is unconstitutional. In order to obtain various racial integration preferences, they assigned students based on race. That is violative of the opinion in Brown v. Board, just the other way. Please read the opinions before running your mouth.

By: dw

dw — Fri, 29 Jun 2007 13:41:02 -0800

dw: If they had brought the suit for the reasons you state, they would have been dismissed right away--is that why they used race? Yep. They couldn't go to the shiny new school while an African American kid could. The tiebreakers evolved over time because of parental complaints, most notably the sibling tiebreaker. But race was non-negotiable.

By: dios

dios — Fri, 29 Jun 2007 13:43:42 -0800

FYI, as a constitutional matter, it wouldn't matter if race was tiebreaker #723,432 or #2 or #1.

By: dw

dw — Fri, 29 Jun 2007 13:46:20 -0800

Of course, the funny thing is that the suit started because the parents couldn't send their kids to the neighborhood school because of race, but Kennedy's concurrence effectively says that busing, which defeats the purpose of neighborhood schools, is legal. There's you a headscratcher.

By: dw

dw — Fri, 29 Jun 2007 13:53:39 -0800

And the point I'm making is that all this started because of the renovations creating all sorts of high school envy. They tore down old Ballard High and replaced it with the new campus, state-of-the-art at the time. And since the renovations started, the annual school choice lottery has been a big, big thing. I have older friends whose eighth graders fretted over whether they'd get into the school of their choice. This was a lawsuit driven by a perceived inequity, but it started with white parents coveting a brand new school, one that just a few years earlier was having trouble getting neighborhood kids to attend.

By: The World Famous

The World Famous — Fri, 29 Jun 2007 13:58:39 -0800

This was a lawsuit driven by a perceived inequity, but it started with white parents coveting a brand new school, one that just a few years earlier was having trouble getting neighborhood kids to attend. Take a measure of covetousness, add a splash of racial selection criteria, and you'll have yourself a volatile little cocktail.

By: anotherpanacea

anotherpanacea — Sat, 30 Jun 2007 06:26:46 -0800

He mischaracterized the actual holding of the opinion a politically-charged way.... What legal principle do you think this opinion changes? Look, something changed. The law is not eternal and ideal, but the change didn't happen entirely on Monday, either. Of course, Brown doesn't go away, but Brown had two elements: it outlawed official segregation, and it required that segregated municipalities proceed with 'all deliberate speed' to undo those effects. So the question is simple: has the desegregation ordered by the Warren Court been accomplished? The Roberts court has upheld the determination of the District Court in Kentucky that it has. Here's Justice Thomas, but Kennedy joined the majority for this part of the decision:

the Louisville school district's interest in remedying its past de jure segregation did vanish the day the District Court found that Louisville had eliminated thevestiges of its historic de jure segregation. See Hampton v. Jefferson Cty. Bd. of Ed., 102 F. Supp. 2d 358, at 360 (WD Ky. 2000). (57)

Sounds like the end of an era. So then we arrive at the Wygant standard. You write: You have now twice suggested this changed the Wygant standard No, just the opposite. The Wygant standard is a test with two possibilities. If there is official segregation, it provides for racial classifications to correct that. In the absence of offical segregation, the Wygant standard requires the state to ignore race. So the Wygant standard 'kicked in' once Kentucky found that there were no 'vestiges' of official segregation left, only ordinary racism. Justice Kennedy quotes it approvingly:

in Wygant v. Jackson Bd. of Ed., 476 U. S. 267, 274 (1986), the plurality noted: "This Court never has held that societal discrimination alone is sufficient to justify a racial classification. Rather, the Court has insisted upon some showing of prior discrimination by the governmental unit involved before allowing limited use of racial classifications in order to remedy such discrimination."

This, of course, is in many ways a clarification of the various desegregation decisions going back to Brown, but it's a clear standard that the majority depends on quite heavily. It's the source of this de jure/de facto test for segregation. The relevant opinions here are Brown v. Board and Grutter v. Bolllinger. Wygant also deals with the requirements of public schools rather than publicly funded graduate school, as in Grutter, and it's clear from Kennedy's decision that the assignment process is being distinguished from the the admissions process: this decision won't effect admissions to law school or the use of affirmative action at the post-secondary level, since such admissions require exactly 'individual classification,' racial and otherwise, to make their determinations. Look, this distinction you're making between policy and law is starting to wear out, because this is a factual claim that bears directly on the enforcement of a legal precedent. It's clear that most of the municipalities in the country, where the vast majority of public school students attend school, will have to start doing things differently than they were doing before. Of course that's law: facts and principles are not so easily distinguished as you would like, especially when they're so intimately tied to public policy throughout the country. So when I wrote: "Resegregation is now an option, so long as it is not officially approved," I was making a true claim about this decision, precisely because of a. the Wygant standard, and b. the approving tone of this court vis a vis factual determinations regarding the 'vestiges' of official segregation. In other words, I was right. That's not surprising, since I read the opinion. What did you do?

By: amberglow

amberglow — Sat, 30 Jun 2007 14:10:29 -0800

... A. Effective immediately the Supreme Court will be renamed the Supremacist Court of the United States. The vote to rename was 5-4. B. The first obligation of the Supremacist Court declared Justice Alito was resegregation. A colorblind Court should never elevate jurists to its bench simply by reason of their color. Since Justice Thomas had undeniably been nominated by George Bush Sr. because of his race: A. to fill the seat vacated by Thurgood Marshall and B. to dare the Democrats to reject him after their rejection of Robert Bork, he should be removed forthwith from the bench. Justice Thomas fully concurred citing 'extensive and incontrovertible evidence' that the Framers' 'original intent' had been an all-white all-male Court. "The idea that a black man can sit on this bench purely by virtue of his race is beyond outrageous - it is laughable. Imagine the Framers' condoning such an absurdity..." ...

By: amberglow

amberglow — Sat, 30 Jun 2007 14:11:31 -0800

oops-- link here

By: amberglow

amberglow — Wed, 04 Jul 2007 10:28:37 -0800

... You want activism? Try this. Months earlier, when Justice Sandra Day O'Connor was still on the court, the justices had denied review in an appeal challenging a similar program in Massachusetts. With no disagreement among the federal appellate circuits on the validity of such programs, the new appeals did not meet the criterion the court ordinarily uses to decide which cases to hear. It was June of last year before the court, reconfigured by the additions of Chief Justice Roberts and Justice Alito, announced, over the unrecorded but vigorous objection of the liberal justices, that it would hear both appeals. The programs referred to are ones that attempt to correct racial imbalance in the Louisville and Seattle schools, in line with Brown v. Board of Education, decided when Eisenhower was president. ...

By: homunculus

homunculus — Mon, 09 Jul 2007 17:53:00 -0800

How Sandra Day O'Connor became the least powerful jurist in America.

By: amberglow

amberglow — Mon, 09 Jul 2007 19:25:06 -0800

Ellen Goodman: The segregationist

By: homunculus

homunculus — Wed, 11 Jul 2007 14:02:26 -0800

The Supreme Court's "Bong Hits 4 Jesus" First Amendment Decision: How Its Betrayal of Free Speech Principles May Have Influenced A Recent Federal Appellate Decision