in today's education headlines

1. Kent teachers defy court order; continue strike. (There's no Becca Bill for teachers.)

2. Obama urges all children to assimilate into the Borg.

3. An instrumental version of "Ave Maria" breaches the wall of separation, apparently.

Happy school year, everybody.

(Oh, and one more: Washington's doomsayers predict swine flu for a third of us.)

word to principals: you are not cops

The drug war has apparently driven an East Hartford, Connecticut administrator to distraction--and resignation.

A middle school assistant principal facing charges related to sending a student to buy drugs in order to catch another student selling them has agreed to resign.

Amy E. Watson, 37, of Ellington, will step down effective Friday, according to school board Chairwoman Mary Alice Dwyer Hughes....

Watson has been on administrative leave pending an investigation into whether she paid a student to buy drugs from a suspected drug dealer March 11.

Edwin Soto, 50, of Suffield, also was arrested in the case. He was the school security officer.

Watson surrendered to police May 8 and was charged with risking injury or impairing the morals of a child and tampering with a witness.

The last time we had a drug-related story this silly, the Supreme Court had to weigh in. Are some principals spending all their free time watching The Shield?



[via Obscure Store]

Truth loses; Kent wins

Another day, another educational--in both senses--opinion from the Supreme Court. This time, students who had sued Kentridge High School to allow a Bible club were turned down.

The court refused to hear an appeal from the high school students who wanted to form the Truth Bible Club at Kentridge High School in Washington state in 2001.

The school refused to let the group be chartered as a school club. They cited the group's name, the fact that students would have to pledge to Jesus Christ to vote in the club and that allowing the club in would bring religion into the school. The club's would-be founders then sued the Kent School District, claiming discrimination.

The 9th U.S. Circuit Court of Appeals said the district did not violate the students' First Amendment rights by requiring them to allow all students full membership in their club.

I don't see anything unconstitutional about allowing a Bible club on campus--but the club's requirement that members pledge loyalty to Jesus seems out of place in a school environment. School clubs should be open to all students, period. If students want to exclude others, they're free to form their own clubs on their own time--and own dime.

SCOTUS says no to strip search in school

Last April, when the Supreme Court was hearing oral argument about whether school officials could strip search a student suspected of carrying contraband ibuprofen, I wrote,

No middle school authority figure anywhere should be given the legal authority to strip search a student when looking for prescription-strength ibuprofen. This should not be controversial.

Two months later, the Court has ruled--and they got it right.

Thankfully.

The only unsettled question: whether Savana Redding, the student in question, can hold school officials individually liable. Though I'm no fan of excessive litigation, I hope Redding wins that argument in a lower court. Students keep their rights--and their dignity--when they enter the schoolhouse door.

Goodloe-Johnson abuses the RIF process

I'd love to hear from the attorney who advised Seattle School Superintendent Maria Goodloe-Johnston on this fascinating move.

In her letter to teachers, Goodloe-Johnston cites RCW 28A.405.210, which states in part,

In the event it is determined that there is probable cause or causes that the employment contract of an employee should not be renewed by the district for the next ensuing term such employee shall be notified in writing on or before May 15th preceding the commencement of such term of that determination, or if the omnibus appropriations act has not passed the legislature by May 15th, then notification shall be no later than June 1st, which notification shall specify the cause or causes for nonrenewal of contract. Such determination of probable cause for certificated employees, other than the superintendent, shall be made by the superintendent.

The paragraph is intended to provide Districts a means of cutting staff "due to an enrollment decline or loss of revenue."

please, SCOTUS, get the strip search decision right

No middle school authority figure anywhere should be given the legal authority to strip search a student when looking for prescription-strength ibuprofen. This should not be controversial.

Especially not...

• When the suspect has already consented to have her backpack and outer garments searched.
• When the only rationale for the search comes from a dubious informant.
• When a parent is not previously informed of the search, or present during the proceedings.

It's going to take a Supreme Court decision to make legally plain the painfully obvious. If they get this one wrong...

Update: Orin Kerr thinks they'll get it right--for boring legal reasons.

up in the House

What the legislature wrought, 2007 education edition. Government sure didn't shrink any over the session.

speech is a commodity. who's bidding for yours?

Actually, TRP, you did just fine.

While I don't think Mayer should have been fired, I think she made a mistake in stating her own views to her students. Why not respond with a question? When the students ask "Would you protest the war?" why not say, "would you?" I don't see how she helped kids' learning by answering the question. She could have dodged it. I do every time it comes up, and I even tell them why: "In this classroom, my opinions are irrelevant. Your opinions are critically important, and they are valuable insofar as they are backed by evidence."

To put it another way, my experience tells me that telling kids my personal views about something complex like the Iraq war is unneccessary: a teacher can play devil's advocate on all sides. In fact, stating one's opinion is often counterproductive to student learning. I therefore believe it should be avoided in almost all cases.

But a firable offense? No way. Mayer's firing was a sad and unfortunate decision, and the courts' support of it could lead to some yucky outcomes. Would the school board in Indiana have canned Mayer if she had brought in a "Support our Troops" bumper sticker? If she had asked her class to write a letter of thanks to soldiers? I highly doubt it. This means that, under the current decision, the school board would gain the de facto power to select the appropriate political perspective to teach, and fire any dissenters. That's no good either.

Here's the irony that goes unmentioned:

The incident occurred in January 2003, when Mayer was teaching a class of fourth- through sixth-graders at Clear Creek Elementary School. As Mayer recalled it later, the question about peace marches arose during a discussion of an article in the children's edition of Time magazine, part of the school-approved curriculum, about protests against U.S. preparations for war in Iraq.

When the student asked the question about taking part in demonstrations, Mayer said, she replied that there were peace marches in Bloomington, that she blew her horn whenever she saw a "Honk for Peace" sign, and that people should seek peaceful solutions before going to war.

A student complained to her father, who complained to the principal, who canceled the school's annual "Peace Month" observance and told Mayer never to discuss the war or her political views in class [emphasis added].

Mayer was clearly within the range of reasonableness by advocating peace in the classroom, and the school district's claim that she was fired for incompetence, not for her politics, is evidence. The Court, though, would deny a teacher any sort of moral authority. A while back, our school hosted an assembly decrying school violence--an emotional remembrance of the Columbine tragedy. If I were like Mayer, and had said, "You know, kids, we should always seek a peaceful solution to our personal conflicts before using violent measures," and a parent had complained, I would hope and pray that my administration would stand up for the message they were already promoting.

Oh, and I'm glad I teach in a district where I'm not a script-spouting robot--attorney Francisco Negrón's world.

"Teachers bring their creativity, their energy, their skill in teaching the curriculum, but ... a teacher in K-12 is really not at liberty to design a curriculum," said Negrón, who filed arguments with the court in Mayer's case supporting the Bloomington school district. "That's the function of the school board."

Except in the most planned-out, constricting, intellectually deadening environments, teachers make curricular choices--even "design curriculum"--every day. We do it within a framework of age appropriateness and educational standards, but in our own words, in our own style. That's where our "creativity... energy... [and] skill" come in to play.

HB 1307 no longer applies to high school students

Sad news, as Jeff Nusser reports. Statements from Brian Schraum, Dave Upthegrove, and Kathy Schrier are available on his site.

Nusser, Schraum, and student journalists lobbied the hell out of this issue, and even convinced me to adopt their perspective: that the principal is not a publisher, and that our state law needs to clearly and specifically protect the rights of student journalists, not just in universities.

Nusser writes,

This is a tough day -- a sad day -- but we need to keep fighting. There will continue to be things that we all can do in Washington to fight unjust censorship of student media.

If I can learn what the law really says and abandon false assumptions, maybe others can, too--even nearsighted administrators. If we can't legislate, we can still educate.

don't ask me to change your grade

Especially if you're a principal, superintendent, or board member in Louisiana. For that matter, don't harass or intimidate me when too many students flunk my class--or I'll walk away with $1.4 million.

The jury of four men and five women deliberated almost four hours before finding that the school board, superintendent and the principal at West Feliciana High School had harassed Paula Payne, violated her First Amendment rights and retaliated against her.

The backstory, from an earlier piece:

In court Wednesday, and on the stand, was the West Feliciana principal Michael Thornhill. Thornhill testified that he asked his English teachers to, quote, "adjust" the scores of the students, 70% of which failed a standardized test back in 2004. Payne maintains in her civil suit that changing the grades is illegal and she was fired for refusing to do so.

Obviously, something's horribly wrong when 70% of a class fails a subject. But accountability isn't just a buzzword or a mask for lower expectations. Kudos to Payne for sticking it out and ultimately proving to the federal courts that teachers, like students, don't doff their rights at the schoolhouse door.

HB 1307 passes, overcomes major hurdle

So points out Jeff Nusser. It's not over, though:

The bill still must be passed by the state Senate and signed into law by Gov. Christine Gregoire before it will take effect....

What next? The process starts all over again. You can contact your legislative district's senator and urge them to support the bill. It will need to go through another pair of committees before potentially coming up for another vote. Also, a number of student publications have written editorials supporting the bill, another excellent form of showing support for the bill -- especially when clipped and sent to your senator.

Find your legislator here. You can also urge support of this bill through the legislative hotline at 1-800-562-6000.

Congrats to Nusser and to all who have strongly and consistently advocated for student rights. They even convinced me that first amendment issues were clear, and that fears of blowback were exaggerated. I regret only that it took me so long to leave the dark side.

Lobby Day visits with Karen Fraser, Gary Alexander, and Kathy Haigh

On a drizzly Monday, several WEA members joined up to lobby area legislators, including Karen Fraser, Gary Alexander, and Kathy Haigh. What follows is a summary of the various Lobby Day conversations regarding WEA priorities. Not available: Brendan Williams and Sam Hunt. Not included: the conversations I wasn't a party to.

Sen. Karen Fraser, Democrat, 22nd Dist. (info)
The state wants more money. Where to get it? I know, says Chris Gregoire: public employees' pensions. Eliminating gainsharing, a practice where state workers receive additional benefits when state investments earn above a set interest point, would raise revenue for a state strapped for cash hungry for new outlays. Fraser is distressed that Gregoire and high-ranking legislators are trying to eviscerate the program. Her bill, a concession, would preserve gainsharing for teachers hired before July 1, 2007. After that, nothing.

(Want the in-depth impacts? Read the fiscal note. We're talking hundreds of millions of broken promises dollars--and this is just the compromise.)

Fraser said that gainsharing is "going down to the wire." Pressure from public employees might be the main obstacle to its elimination.


Rep. Gary Alexander, Republican, 20th Dist. (info)
Representative Alexander was glad to talk to us about compensation, and was sure to mention the issues he thinks get passed by in the ongoing conversation about ed reform: special needs and transportation. (He didn't go into much detail about the latter.) Alexander is against one-size-fits-all education, telling us how much he'd like to see stronger vocational education, but, paradoxically, not wanting to give a high school diploma to anyone who can't pass the WASL. Several times he mentioned how some students just aren't served by the current model, and yet he never acknowledged the contradiction in his support for the dubious exit exam.

When asked about gainsharing, Alexander was quick to mention HB 2116, a different sort of compromise. Right now, gainsharing kicks in when pension investments top a 10% rate of return. Under Alexander's proposal, the "trigger" would be raised to 14%, reducing the state's odds of liability by almost two thirds. (A 14% rate of return is 64% less likely. Read the whole fiscal note if you dare. Alexander noted that the legality of the proposition--having different gainsharing options for old and new hires--is under investigation.) I asked Alexander what would replace gainsharing as a recruiting tool if it were done away with. He didn't really have an answer.

One bill Alexander is sponsoring would allow students who pass the WASL to skip the "intermediate" step of their licensing [pdf], the time when they can drive only during limited hours and without young passengers. Another secondarily sponsored by Alexander would force the legislature to determine proper education funding before passing an omnibus appropriation--in essence, making education a priority not just in emphasis, but in time. (Alexander didn't talk about either bill during our chat.)

In all, Alexander offered tentative support for some WEA concerns, especially in the area of fully funding education.


Rep. Kathy Haigh, Democrat, 35th Dist. (info)
Kathy Haigh, chair of the House Appropriations Subcommittee on Education, kept pulling out a copy of the budget whenever we'd ask about upcoming agenda items. She declared her support for smaller class sizes for K-3 classes, and said she wanted to commit $50 million in the upcoming session to fund all-day kindergarten, at least for free and reduced lunch students. She "totally support[s] the simple majority" for levies, which would give rural districts greater ability to fund classroom renovations and technological upgrades. (Last year she cosponsored a similar bill that passed the House only to fail in the Senate.)

When we brought up pensions, she admitted, "I don't know anything about gainsharing. I'm not in the middle of that fight."


Summary
It's a good year for state government, which means that everyone wants a piece of the lasagna.

"It's a lot harder when you have a bunch of money," says Victor Moore, the governor's budget director and former House Appropriations staff director. "When you don't have money, there is a simple response to why you're not giving them anything. When there's money, you have to make arguments about priorities, why this investment and not another. It's tough and everybody wants their little $10 million appropriation."

Today the WEA was another voice in a cacophony of concerns, requests, and demands. When dozens of interest groups descend on the Capitol in a day, it's easy for issues to get lost in the noise. Union members who want their needs met have to keep contacting their legislators beyond Lobby Day, to keep reminding them of their promises to constituents and their obligations to the state's "paramount duty."



Sidebar: Among the more colorful and obnoxious interest groups were the Where's the Math folks, parading kids around as political props and chanting on the Capitol steps. One middle-aged demonstrator sported a placard reading, "Less Words! More Numbers!"

That would be fewer words. If only they'd had a writing WASL thirty years ago.

USA Today supports student journalists and HB 1307

Reader Nuss points us to a USA Today op-ed supporting HB 1307, the speech-rights-for-journalism bill. The gist:

The legislation pending in Washington state would give principals the right to see student publications before they go to press, but prohibit censorship or stopping of publication unless material is obscene, libelous or slanderous.

A major function of schools is to prepare students for life in a democracy. And one of the cornerstones of democracy is the free exchange of ideas. Lessons in bowing to life under censorship shouldn't be part of the curriculum.

As for the bill in question, it's sitting in the Rules Committee awaiting a second reading. With Democrats in charge, it seems likely to move into the House fairly quickly.

Update: I should add that Mr. Nuss has created a blog to keep track of the issue. It, and his personal blog, will soon be added to the roll.

support the rule of 85 and HB 1199

I started teaching when I was 23.

Under TRS plan 3, I can retire with a full pension when I'm 65. (Plan I retirees could jet at 55.)

That's all it takes: 42 years of dedication.

HB 1199 would change that.

(2) UNREDUCED RETIREMENT. Any member who is at least age fifty-five and has completed at least five service credit years and for whom the sum of the number of years of the member's age and the number of years of the member's service credit equals eighty-five or more shall be eligible to retire and receive a retirement allowance computed according to the provisions of RCW 41.40.790.

Hypothetical: at 55, I'll have been teaching for 32 years. 32+55 = 87 = able to retire on a full pension.

So, which Mr. Anderson do you want? Happy retiree, or burned out curmudgeon?

That's right. Support HB 1199.

HB 1307: one step forward

In the mad rush of events, I had almost forgotten about Brian Schraum's notes defending HB 1307, the bill that would make student journalists entirely responsible for their own content. Here are my thoughts in response, after reflection. I had originally argued that the First Amendment (at least, in my non-legal-scholarly estimation) doesn't protect your right to publish in someone else's medium.

After studying the issue in more depth, I've come to agree much more with Schraum's position than I initially had--that it is possible for students to "own" their work in a newspaper. I've looked over some of the cases where students have successfully received injunctive relief from "arbitrary and capricious" prohibitions or viewpoint discrimination. (The former language was used to allow a student to publish a yearbook photo of himself in chain mail. Nerd.) I hadn't really looked into the SPLC, and now I'm much more impressed with the constitutional protections of student speech.

However, I see Hazelwood as a reasonable position that has been unreasonably interpreted by overzealous--make that paranoid--administrators. The SPLC reports that calls to their hotlines have increased mightily in the years since Hazelwood, yet under that ruling, all a savvy newspaper teacher has to do is include express language in the publication to the effect that the newspaper is indeed a forum for the school, and not just an assignment or a function of a particular class. ("Underground," student-produced newspapers are fully protected, as are other routes of student expression.)

Schraum writes,

[In Hazelwood the] Court justified control of student newspapers simply because the public might falsely think the expression reflected that of the school. This is simply not the case; I don't think any reasonable person would look at a student newspaper and think that a principal was responsible for everything in it.

Maybe Schraum has never had to take angry parent phone calls--or maybe he automatically discounts such calls as "unreasonable"--but since administrators constantly have to justify school actions to the community, I'd like to see evidence that "reasonable people" don't (or shouldn't) confuse what's in the school newspaper with what the school condones or takes responsibility for--especially when the school is paying for it.

Schraum, though, also oversimplifies SCOTUS's claims in Hazelwood regarding the defining First Amendment case, Tinker vs. Des Moines.

We have nonetheless recognized that the First Amendment rights of students in the public schools "are not automatically coextensive with the rights of adults in other settings," Bethel School District No. 403 v. Fraser, 478 U.S. 675, 682 (1986), and must be "applied in light of the special characteristics of the school environment." Tinker, supra, at 506; cf. New Jersey v. T. L. O., 469 U.S. 325, 341-343 (1985). A school need not tolerate student speech that is inconsistent with its "basic educational mission," Fraser, supra, at 685, even though the government could not censor similar speech outside the school. Accordingly, we held in Fraser that a student could be disciplined for having delivered a speech that was "sexually explicit" but not legally obscene at an official school assembly, because the school was entitled to "disassociate itself" from the speech in a manner [484 U.S. 260, 267] that would demonstrate to others that such vulgarity is "wholly inconsistent with the 'fundamental values' of public school education." 478 U.S., at 685-686. We thus recognized that "[t]he determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board," id., at 683, rather than with the federal courts

HB 1307 still allows administrators to intervene, as long as they have evidence of the potential for material disruption.

It all comes down to the ownership question. Journalism teachers and students who value free expression--and there aren't enough of either--should take the steps to declare their paper a public forum, ensuring full constitutional protection for writers. If these steps are taken, HB 1307 could be entirely superfluous.

Two uncertainties remain. If HB 1307 passes, will paranoid administrators eliminate journalism classes, using excuses like "we don't have the money" or "we need more classes for WASL prep?" Second, will students face an even greater "chilling effect" once they realize they are personally liable for their content?

Brian Schraum defends HB 1307

Brian Schraum has sent word that, along partisan lines, the House Judiciary Committee has approved House Bill 1307, which would give student journalists full responsibility for their publications. In a separate email, Schraum responds to my thoughts, writing,

You are not alone in making the argument that the school is the publisher/owner of the newspaper, and for that reason should be able to determine the content. The analogy you make, about me demanding to publish something in The Olympian, simply does not hold up. Even the federal courts, which have caused so much damage to the rights of students, recognized this: "The university is clearly an arm of the state and this single fact will always distinguish it from the purely private publisher as far as censorship rights are concerned" (Bazaar v. Fortune). The same holds true for any public school.

Things which are produced at school do not automatically become property of school officials. If that were the case, teachers and professors could claim credit for all student work -- slap their name on it and face no penalty. I don't think that's a just outcome. The same holds true for student newspapers; the work is that of students, regardless of the medium that might be used.

The Supreme Court's Hazelwood decision, which we are seeking to curb with this bill, had not so much to do with that as it did with "perception," in my opinion. The Court justified control of student newspapers simply because the public might falsely think the expression reflected that of the school. This is simply not the case; I don't think any reasonable person would look at a student newspaper and think that a principal was responsible for everything in it.

Boil this down to its core components: you have the government (school officials), and journalists (student reporters). I just don't happen to think government control of journalism does anyone any good.

The core of our disagreement seems to be about who "owns" the newspaper. I strongly disagree with the idea that the school "owns" the newspaper... the closest you might be able to come up with is that "the people" own it. Even if that were the case, we have regulations on how government conducts the peoples' business. Censorship rules are among those. We are attempting to strike a much more reasonable balance with this legislation.

I fully agree with you that no school should be required to support a student newspaper. In fact, many student publications are produced outside of class time, largely or entirely with advertising dollars that students themselves collect. The school is free to decide if it wants to provide financial aid to the publication, or offer credit for working on it... but doing so gives them no more right to censor it than I would have to censor The Olympian by paying for a subscription.

I'll have a response to post shortly. I thank Mr. Schraum for his permission to publish his thoughts.

right for the wrong reasons: giving student journalists greater autonomy

In The Olympian this morning, a report on the student journalists who descended on the Capitol, full of righteous rhetoric:

"The question is simple: 'Are we people?' The Constitution provides that people have fundamental rights of speech," testified Brian Schraum, a Green River Community College graduate now attending Washington State University.

He brought the issue to lawmakers after a federal court ruling in the Midwest said universities could review articles before publication.

"Look into the eyes of students in the audience. We are people," Schraum challenged the lawmakers.

Strong words, but weak logic. It might interest Mr. Schraum to know that he has no First Amendment right to publish in The Olympian, on a bathroom stall at Applebee's, on this blog, or wherever someone else owns the medium. Schools are not even obligated to have student newspapers, never mind fund them or make them part of the course offerings.

Would Schraum support legislation to let a professional journalist sue The Olympian for refusing to run an article, whatever the editor's excuse? I hope not. Yet, analogously, that's what this legislation demands: "injunctive and declaratory relief" whenever a paranoid administrator reaches for the Wite-Out.

Let's examine some of the arguments offered in Schraum's defense by a fellow student journalist (and former student of mine).

Just as local newspapers offer residents a place to voice and vent their concerns and critiques, so too does a student-run newspaper give students a place to voice their opinions.

However, residents can't sue when their letter to the editor isn't published--and, as I mentioned before, neither can reporters when their bosses trash a story that might offend a prominent advertiser. Weasely, sure, but not a rights violation.

When student newspapers are censored, students no longer have a place for their concerns to be heard.

This is simply false. The school newspaper is hardly students' only medium for a message. (This also means that administrators have no business attempting to interfere in student expression outside the classroom.)

Student newspapers, though instituted through the school, are actually run by students. It's not a forum for the school as a whole, but specifically for the students, the primary readership. Thus they, not administration, should be in control of the content.

Maybe in the Workers World the paper runs that way, but every other paper in existence has a chain of command.

Just as a local newspaper can choose what it prints, a student newspaper should be given the same right.

A local paper can choose what it prints--but not really. Editors, reporters, readers, community standards, journalistic ethics, and almighty advertisers all shape content--and, as I've stated before, the owner has the final say.

One thing Schraum, Watts, and everyone else should agree upon: in Watts' words, "Too little faith is put in students' ability to determine appropriateness and to handle controversial topics." I want student journalists to be given greater responsibility to challenge and provoke their peers in the service of learning. My desire, though, arises from practical, not sacred, obligations. It's because I want smarter, savvier journalists, not because of a righteous misreading of the First Amendment.

There are other ways to get administrators to cave, each a potential civics lesson. Protests. (Professional) media coverage. Angry parent phone calls. Reasoned, impassioned argument. And, dare I say it, blogging. Ill-founded, won't-survive-the-appeals-court lawsuits aren't the answer.



(Bill text here [pdf]. Bill history here.)

free speech rights for students: a student's perspective

Guest-blogger and former CHS student journalist (and present WSU staffer) Christina Watts responds to my thoughts on the proposed legislation that would protect free speech rights for high school journalists. She writes,

I work with Brian Schraum, the WSU student who approached Upthegrove about a need for the bill. I'm glad the legislature is finally looking at the issue of student journalists and their rights.

Just as local newspapers offer residents a place to voice and vent their concerns and critiques, so too does a student-run newspaper give students a place to voice their opinions. This is why the bill being introduced by Upthegrove is important.

Not only do students deserve and need a forum to share their voice about school issues, but they need to know that in sharing their ideas, they won't be penalized. Working on the Outlook, even without being under principal review at the time, we ran into several instances where word of our content was released and we were told to remove it. Too little faith is put in students' ability to determine appropriateness and to handle controversial topics. When student newspapers are censored, students no longer have a place for their concerns to be heard.

It is true that many student newspapers are run through public schools and should therefore contribute to the educational process. This doesn't mean, however, that censoring student newspapers, a practice which has been done across the state as well as across the country, is the best course of action to take. In the past, schools have censored articles about birth control, homosexuality, and drug use, all issues students become familiar with merely by going school. To say these issues weren't relevant or important to students at school was ignorant, and yet the articles were still censored.

Student newspapers, though instituted through the school, are actually run by students. It's not a forum for the school as a whole, but specifically for the students, the primary readership. Thus they, not administration, should be in control of the content.

This bill, which would protect students' rights as journalists, would also at the same time make them accountable and responsible as journalists. Just as a local newspaper can choose what it prints, a student newspaper should be given the same right.

freedom of speech for student journalists

Your local newspaper has no obligation to give you a bully pulpit, and they don't even have to publish your anti-corporate screed in the letters to the editor. You don't have the right because you don't own it.

Local papers know, though, that allowing a diverse array of viewpoints, by stoking controversy, we can smack some sense into Our Great Republic (or, at very least, the city council). The First Amendment protects that function.

It does not, however, give you a right to publish in someone else's forum.

For that reason, this proposed legislation can't match intentions and outcomes.

Rep. Dave Upthegrove, D-Des Moines, has introduced legislation that would allow advisers to review student publications but strip them of any authority to control what is printed. Instead, students would be in charge of writing, editing and publishing — and would be liable for any fallout....

By granting students added freedoms and accountability, Upthegrove hopes to generate an appreciation for constitutional rights and give young people a sense of civic responsibility.

The Supreme Court has already been there, Upthegrove. A school newspaper isn't a public forum. It's taxpayer-funded and beholden to the greater needs of the "educational process." Thou shalt not disrupt it.

However, the disingenuous stance of the Washington Association of School Administrators bothers me, too:

If students want to voice their opinions without restraints, he suggests they turn elsewhere. Between blogs and personal Web sites, Kipp said, "There are lots of opportunities that kids have in school to express whatever they want."

Except that administrators block access to both blogs and personal websites, and have even gone after students for publishing anti-school materials at home.

It's a delicate balance, and administrators usually lean too far on the side of tyranny, afraid that controversy is in itself disruptive. A wise administrator knows when to let students take the fall.

On balance, I'd probably support the bill, even though I'm not sure how well making students liable will work when the first lawsuit rolls in. Accountability, after all, is another word for litigation.

SCOTUS hears the Davenport case

The Olympian notes that the WEA agency shop fees case has been argued before the Supreme Court. You can read the transcript here [pdf]. Highlights:

[PAUL D.] CLEMENT [for the state of Washington]: And I think it's instructive if you look in the joint appendix, I think it's at page joint appendix 45, you have the form that's available to union members to opt in to PAC contributions, and have payroll deductions made for the PAC contributions. The union certainly makes it much easier to opt in to PAC contributions than it makes it to opt out vis a vis the Hudson packet....

I could suggest where maybe the Washington Supreme Court went awry in its analysis, it focused almost exclusively on the three stated purposes that were included in the text of Initiative 134, which were all focused more on electoral integrity.

That's not surprising, because there were 36 sections in Initiative 134 that dealt with the whole manner of different campaign finance initiatives. Before this initiative was passed by the voters of Washington there weren't any campaign contribution limits in the State of Washington.

So this initiative is doing a lot more work, just besides Section 760. I think 760 isn't unrelated to those broader purposes because it does make sure that the contributions of the workers here are voluntary, and I think that is certainly something that's very similar to what Federal law accomplishes through the separate segregated fund requirements....


MR. WEST [for the WEA]: Thank you, Mr. Chief -- Mr. Chief Justice, and may it please the Court:

Our submission that Section 760 unconstitutionally burdens the union's First Amendment right to engage in political advocacy rests on three points. One, the statute before the Court is a campaign finance law that was enacted for the purpose of protecting the public's interest in the integrity of the electoral process. Two, it is a content-based restriction on speech, which cannot be justified by the State's authority to limit agency fees in the first place. Three, the statute does not serve a compelling State interest both because it is overbroad in restricting, restricting speech on ballot propositions and because it's underinclusive in regulating the campaign speech of unions but not of other comparably situated entities....



MR. MCKENNA [for the state of Washington]: Yes. Your Honor, the Chief Justice is correct, of course. What I thought the question was about was the question of whether or not all, all non-germane expenses must be opt-in, must be provided. That's all I meant. You're absolutely correct. Of course, in your decisions opt-out is satisfactory, and we're not saying that opt-out is not satisfactory here as far as the State's position is concerned. But what we are saying is that the State has the right to impose this additional requirement of affirmative authorization....


MR. MCKENNA: We don't believe it is content-based, Your Honor. As I said, we don't believe it is, because it's any election of any kind.
JUSTICE GINSBURG: Well, the content means a category of speech as opposed to what is the political position you're taking.
MR. MCKENNA: Yes, that is it's only in regard to influencing elections or operating a political committee, which is a second.
JUSTICE GINSBURG: But I thought that that was content. You could do it, say, in the press, but you couldn't do it over the air.
JUSTICE SCALIA: That's my understanding, too. I think you got to get out of it some other way. I mean, you've got to say it's content but it doesn't apply when it's the government contributing money or it doesn't apply when you're applying it to money that's being coerced by the government.
MR. MCKENNA: Yes, Your Honor.
JUSTICE BREYER: If that's yes, then the category here is election speech. If you're going to call a statute that treats election speech especially, then all of campaign finance regulation would fall in that category. And if you're going to use that distinction to say strict scrutiny applies, then strict scrutiny would apply to all campaign finance regulation. And courts never to my knowledge apply strict scrutiny to campaign finance regulation because there are speech interests on both sides of the equation.
MR. MCKENNA: Yes, Your Honor. Of course, we believe that -
JUSTICE BREYER: I'm glad you said yes to me because that implies a no to the last question.
(Laughter.)

I agree with the AP assessment that the Court sounds favorable to the state's position, but only on the issue of whether the WEA could make the Hudson process easier, and that the law might not be too burdensome. Nevertheless, they could rule that Washington's campaign finance law, if allowed to stand, as the WEA argues, represents an unfair form of discrimination against nonmembers who support the WEA's political efforts, and that "affirmative authorization" is satisfied by the Hudson opt-out process. (At one point, Justice Alito says "opt-in" before catching himself--the issue is linguistically confusing to everyone who confronts it.)

John West, advocating for the WEA, comes off as a bit flustered in some of his arguments.

I'll write more after I have time to fully digest the (68-page) hearing.

Update: Dahlia Lithwick's summary is well worth your time, if you want the quick rundown.

Update update: Although I will say I'm not terribly fond of the analogy to date rape.