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House of Representatives Urges Ninth Circuit To Be More Activist,

By a 320-91 Vote: Two weeks ago, a Ninth Circuit panel rejected a parent's claim that a school district's allowing children to be surveyed about sex violated the parent's constitutional rights. Today, the House passed a resolution asking the Ninth Circuit to rehear this decision en banc, "in order to reverse." (Thanks to How Appealing for the pointer to the House vote.)

It seems to me that the Ninth Circuit's decision was quite right. Whether or not the school district's decision may have been wrong, foolish, or harmful, it wasn't unconstitutional. The proper remedy for the district's failure is through the elected branches of government, not through the federal courts setting educational policy.

Nothing in the U.S. Constitution gives parents a right to veto the questions that a school district will ask their children. It's not in the text — parental rights are nowhere mentioned in the Constitution. It's not in the precedents; the cases that the House resolution mentions, and all the other parental rights cases that the Court has decided, have involved the parents' rights to send their children to private school (or perhaps not to send them to school at all), not their rights to dictate to government officials what they may or may not ask.

What's more, the boundaries of the rule would be very hard to define (they certainly aren't defined in the Constitutional text or structure), or to limit to questions about sex. The House resolution certainly makes no effort to define them; nothing in it explains why schools can ask children questions about math, science, or ethics and not about sex. This is the quintessential example of the kind of matter that calls for legislative or executive action, setting forth specific rules (perhaps including arbitrary lines of the sort that courts are rightly reluctant to draw) that are based on what the voters and their relected representatives want — not for action by elected courts who'll be telling school boards what to do or not do.

I realize that many people are angry about courts telling school boards what to do with regard to religious symbolism — but at least there we see a constitutional provision (the Establishment Clause) that at least mentions religion, and that might possibly be read as covering religious speech by the government (especially coupled with the Fourteenth Amendment, which makes most of the Bill of Rights applicable to the states). There we have over 50 years of Supreme Court precedent that support this position. And there at least we have a textual limitation that would keep this position, whether right or wrong, limited to a small part of the curriculum. Not so as to a general right of parents to control what schools say to or ask of their children, which is either conceptually unlimited, or, if it is limited only to sexual matters, has no textual anchor for such a limitation.

I also realize that many people are particularly peeved because the panel decision was written by the liberal Judge Reinhardt, who they suspect would be happy to make up other more liberal-seeming constitutional rights that he liked better than this sort of broad parental right to control what the school says to your children. I'm always troubled by these sorts of hypothetical-based charges of inconsistency — that Judge Reinhardt is willing to recognize some ambitious constitutional claims doesn't obligate him to recognize all ambitious constitutional claims; he might well have a perfectly good explanation for why this claimed right is different from other claimed rights. But in any event, even a stopped clock (if that's your view of Judge Reinhardt) is right twice a day. Judge Reinhardt got it right here, and we shouldn't fault this right result because we think Judge Reinhardt would get other things wrong in other cases.

Either the House of Representatives is asking the Ninth Circuit to reject a strict constructionist, deferential decision and instead adopt an activist position — or, if that's not so, it's only not so because the word activist has come to mean nothing except "a result I dislike."

Edward A. Hoffman (mail):
Do you mean there was actually a time when it meant something else?
11.16.2005 8:29pm
jgshapiro (mail):
What about the fact that the House is essentially petitioning for rehearing en banc? I realize that the House resolution has no force, but I wonder how many times this has happened before, or whether it has ever happened before. Seems like a road that we should stay well away from - Congress telling an appellate court to rehear a case and how to rule on it when it does.

This is not even the Schiavo case where Congress arguably had to act to give the federal courts jurisdiction. This is a case where the federal courts already have jurisdiction and do not need Congress to authorize them to do anything.
11.16.2005 8:47pm
Master Shake:

". . . or, if that's not so, it's only not so because the word activist has come to mean nothing except "a result I dislike."


That's always what the word has meant.
11.16.2005 8:51pm
Master Shake:
Oops, Ed beat me to it.
11.16.2005 8:52pm
Byomtov (mail):
It doesn't matter that Ed beat you, and me, to it. It needs to be repeated often and loudly.
11.16.2005 9:05pm
Edward A. Hoffman (mail):
What the House did is more akin to filing an amicus curiae (friend of the court) brief. Senators and representatives, individually or in groups. file amicus briefs in cases from time to time. Such briefs are not brought in the name of the House or Senate as a whole, though. Presumably, if the House wanted to file an amicus brief it would first need a resolution very much like this one.

The executive branch files amicus briefs quite often. It has available to it the services of the Attorney General and Solicitor General, but the briefs these offices file reflect the president's policy choices. If it's OK for the president to express his views to the courts then it must be OK for Congress, as a co-equal branch of gov't -- to do likewise.

The problem here is the rationale behind the resolution. Eugene is exactly right on this point: Congress is saying "Here is the result we want, and you goofed by not reaching it. Go back and decide it our way." If a judge decided a case based on his or her *own* preferences instead of the law (and if those preferences did not align with the GOP's), we'd hear cries of activism from every conservative commentator and organization in America. But when the court gets a decision right and conservatoves don't like it, the court is pilloried for *not* being activist. It happened in the pledge case, it happened in the Schiavo case, and it's happening here. Don't be surprised to see it happen again real soon.
11.16.2005 9:12pm
JohnO (mail):
When I was a kid, I wish my mother had loved me enough to ask a federal court to enjoin my school from asking me questions about calculus.
11.16.2005 9:20pm
Tom Anger (mail) (www):
"Nothing in the U.S. Constitution gives parents a right to veto the questions that a school district will ask their children. It's not in the text -- parental rights are nowhere mentioned in the Constitution. . . ." Nor does anything in the U.S. Constitution give a school district the right to ask children about sex without the consent of their parents. There were no public schools (as far as I am aware) in the U.S. when the Constitution was ratified, and none of the subsequent amendments bears on the issue of public schools. Therefore, the Ninth Amendment applies, which brings the Constitution down on the side of "the people" as opposed to public schools, which are "government."
11.16.2005 9:26pm
Willard:
It took me a few days to figure this out, so I didn't post it the last time Prof. Volokh mentioned this case and its critics, but Prof. Volokh is quite wrong to say that the word "activist" means no more than "something I disagree with." In popular political discourse, the word "activist," applied to judicial decisions, can fairly be translated as "instrumentalist." As such, it expresses a perfectly valid criticism: we all know that if the school district had implemented a curriculum teaching that homosexuality was unnatural and reflective of childhood psychological truama, Judge Reinhardt would have found that curriculum unconstitutional, because his jurisprudence, like that of most federal judges, is unprincipled and purely instrumentalist.
11.16.2005 9:40pm
Ciarand Denlane (mail) (www):
Tom: I don't see a Ninth Amendment argument here. If one accepts that the Bill of Rights is incorporated and binds the States, I can see some glimmer of an argument, probably on First Amendment grounds (or penumbral shadows on the grounds) for the idea that ( except for schools like West Point that serve the government's own institutional needs) it is unconstitutional to have public schools at all. I, for one, would prefer to have a government whose ideals and values are molded by the people rather than a people whose ideas and values are molded as children by the government. But once one does accept the notion that public schools are constitutional, on what basis does the Ninth Amendment tell the courts they must come down on the "side" of the "people" who don't want to hear about, say, calculus, rather than on the "side" of the "government" that wants to teach it?
11.16.2005 9:43pm
PhilaMark (mail):
"parental rights are nowhere mentioned in the Constitution." True, but then neither is abortion. If Eugene is right (and personally I agree with his analysis), it applies equally to Roe v. Wade and any number of Warren-era decisions. As the ideological pendulum starts to swing the other way, it is ironic to watch liberals suddenly "discover" the virtues of a small "c" conservative Supreme Court.
11.16.2005 9:44pm
Jeffrey William Gillette:

> What the House did is more akin to filing an amicus curiae

This is such an obvious question that I'm sure I'm missing something.

Since the US COA is charged with enforcing the laws passed by Congress, if 320 membrs of the House really want the law to be something other than what the 9th Cir. says it is, why don't they vote to change the law?

Presumably a Republican Senate and President would agree with the logic, and, if the new law did not violate the Constitution, the 9th Cir. would have to enforce it.
11.16.2005 10:14pm
Andrew Hyman (mail) (www):
Professor Volokh, I've posted about this at confirmthem.

http://www.confirmthem.com/?p=1924
11.16.2005 10:21pm
Edward A. Hoffman (mail):
Jeffrey:

The dispute isn't about what a statute says. It's about what the Constitution says. The House, the Senate and the President cannot change the Constitution on their own.

Besides, what these 320 Reps really want is for the Constitution to say what it says now and for the court, in this particular case, to disregard what it says in order to reach their preferred result.
11.16.2005 10:48pm
Joshua:
A better way to address this issue would be for Congress to cut off Federal funds to any school district which administers sex surveys to elementary school students.

This would avoid having to establish a constitutional right of parents to determine the curriculum taught to their children in public schools.
11.16.2005 11:20pm
Nunzio (mail):
It seems West Virginia v. Barnette (1943) is somewhat in the ballpark here for the parents as to "compelled speech." Barnette dealt with coercing school kids to salute the flag, which apparently conflicted with Jehovah's Witness beliefs.

Taken to its logical conclusion, Barnette would make public education a free for all.

Anyway, I always thought it was an activist decision. ("To sustain the compulsory flag salute we are required to say that a Bill of Rights which guards the individual's right to speak his own mind, left it open to public authorities to compel him to utter what is not in his mind.")


Interestingly, the Court three years earlier in Gobitis had upheld a similar Pennsylvania practice that led to the expulsion of three-kids (also Jehovah's witnesses) for not saluting the flag. Gobitis was pretty heavily criticized, so Barnette came out the other way.

Maybe the House is onto something.
11.16.2005 11:41pm
SuperChimp:
Although traditional conservatives view judicial activism as a usurpation of the constitution's text, structure, and history, modern Republicans view judicial activism as a usurpation of a socially conservative ideology.

I think it is this chasm that has Eugene confused (or even a little upset).
11.16.2005 11:51pm
Steve Dillard (mail) (www):
I take issue with the good professor over at Confirm Them:

http://www.confirmthem.com/?p=1925
11.16.2005 11:56pm
ras (mail):
The House is of course merely grandstanding to the public, which was already inflamed by both the substance and tone of the prior District Court decision.

Whereas the District Court said:

In summary, we hold that there is no free-standing fundamental right of parents "to control the upbringing of their children by introducing them to matters of and relating to sex in accordance with their personal and
religious values and beliefs" and that the asserted right is not encompassed by any other fundamental right


The 9th circuit said:

there is no fundamental right of parents to be the exclusive provider of information regarding sexual matters to their children, either independent of their right to direct the upbringing and education of their children or encompassed by it.


The key word (bolded by me) denoting the change is "exclusive." The District Court essentially said that parents cannot raise their kids as they see fit. and the public was furious.

The 9th - correctly, I think - instead noted that the right to control what one's child learns isn't exclusive, which in an open society is pretty much impossible, anyway, if carried to the extreme. But by then the damage done by the District Court had inflamed too many people to be so easily undone.

Just my layman's take, but I'd bet that had the District Court initially, and in a respectful tone, adopted the 9th's position, none of this would've happened.
11.17.2005 12:10am
Zargon (mail):
Willard: As such, it expresses a perfectly valid criticism: we all know that if the school district had implemented a curriculum teaching that homosexuality was unnatural and reflective of childhood psychological truama, Judge Reinhardt would have found that curriculum unconstitutional, because his jurisprudence, like that of most federal judges, is unprincipled and purely instrumentalist.

Now we need a definition of "instrumentalist". In what way does that term differ from "decisions I don't like"?

Jashua: A better way to address this issue would be for Congress to cut off Federal funds to any school district which administers sex surveys to elementary school students.

Ah, yes, because that's how one encourages Federalist behaviour - when one doesn't have the right to do something, coerce the behaviour one wants.

I find big government convervatives funny. Just wait until they get another New Deal -- and at this rate with the current overreach and corruption, they'll get it.

--me, a small government libertarian, watching the trainwreck. I have insurance -- I already own property in another country.
11.17.2005 12:28am
noahp (mail) (www):
The problem here is more complex than I think Prof. Volokh makes it out to be. I agree that there is absolutely nothing in the constitution to support the parents' claim in Fields (that includes the Ninth Amendment), but the problem is the atmosphere of distrust created when the Courts start finding social policy in the constitution. Because the Courts have frequently made rulings finding left-liberal notions of parenthood and childhood sexuality to be embedded in the constitution (exhibit A being Carey v. Population Services, exhibit B being Goodridge/Lawrence [little difference between the two in my opinion]), the people (somewhat justifiably, in my view) no longer trust the Courts on these issues. When they see a ruling like Fields they assume bad faith on the part of the Courts.
11.17.2005 1:12am
therut (mail):
As a non lawyer I think the public is furious because the court just said parents have no rights. They went too far. They said something to the tune of there is nothing in our tradition, or history etc. That is nonsense. What is really going to have to happen is to get the Goverment out of schools. The USSC has moved our culture to a point that many do not approve. They are angry. This was not a problem before sex education, contraceptives being given out in schools,gay rights, the seemingly attack on Christianty, psychobable counseling,schools providing counseling for and providing transport to abortion clinics etc. The majority of parents in this country do not hold those views and demand a right to send their children to schools that hold their values. They want Vouchers. They want the right to choose a school. Vouchers will allow that. It will happen because parents will demand it and it will be constitutional. And it will be better for Freedom and domestic peace. This revolt is going to come from the lower and solid middle class folks and it will be grassroots democracy.
11.17.2005 1:20am
Robert Schwartz (mail):
"When they see a ruling like Fields they assume bad faith on the part of the Courts."

When did they act in good faith?
11.17.2005 1:53am
Roger Schlafly (www):
The big problem with this case is in the dicta. I might have agreed with ruling against the parents for various reasons, but not for the radical reasons chosen by the 9C.

There is a line of Supreme Court decision going back to the
1920s saying that parents have a fundamental constitutional right right to make decisions concerning the care, custody, and control of their children. It was reaffirmed unanimously in 2000.

In Fields, Reinhardt ruled that the parents' fundamental right to control the upbringing of their children "does not extend beyond the threshold of the school door," and that a public school has the right to provide its students with "whatever information it wishes to provide, sexual or otherwise."

This is a direct attack on parental rights. This is as annoying to some right-wingers as it might be annoying to left-wingers if some court declared that the right use a condom (as declared in Griswold) did not apply in a hotel. Sure, the words "condom" and "hotel" don't appear in the Constitution, but it would be a goofy limitation on an established court doctrine.

I agree with the House. The Reinhardt opinion is offensive, and should be reconsidered. Volokh may agree with the 9C conclusion, but I doubt that he agrees with the reasoning.
11.17.2005 4:15am
Public_Defender:
"Activist" used to mean "liberal." It now means, "a judge who improperly imposes his or her own policy opinions in legal opinions."

Liberals correctly use the term when they argue that conservative judges are using judicial opinions to advance a conservative agenda not supported by the constitution, for example, when judges rule that zoning or environmental laws "take" property.

But politicians of both sides use the term to mean "wrong." Liberals were smart to start using the term over and over and over again to describe conservative judicial opinions.
11.17.2005 7:33am
The Mike Porter (mail):
What is the Constitution? It is an attempt to create a government based on the principles set forth in the Declaration of Independence, in particular, the immortal six lines beginning with "We hold these truths..."
The Constitution, properly interpreted, should be read as a limitation on government to the sole purpose and function of "...to secure these rights..." Anything beyond that is unconstitutional, including public education. It is certainly not the proper function of government, in a free society, to create good little citizens and citizenesses out of our children, especially as determined by government bureaucrats. That is the proper responsibility of parents. No parental rights in the constitution? The good professor badly misreads the ninth and fourteenth amendments and ignores the good works of Madison, Lincoln, Jaffa, and Clarence Thomas.

This is yet another convincing argument for the complete separation of school and state. In Fascist Italy and Japan, Nazi Germany, Soviet Russia, and Communist China, it is (or was) the function of government to educate the children. Not so in the American Republic. We had our differences with these monstrously evil totalitarian regimes, including hot a cold wars. The primary difference between us and them is individual rights, with government institued in our country to secure those rights, not violate them.

Sincerely,

Mike Porter
11.17.2005 8:02am
Medis:
The primary lesson I draw from these events is that we Americans have an unfortunate tendency to abandon principle and even common sense when the issue involves children and sex.

In that sense, of course Eugene is right that if all the same language in the opinion, and the exact same holding, had been applied to some other subject matter besides sex, we wouldn't even be talking about this case. Indeed, we would be laughing at the frivolity of the lawsuit, should it even be brought to our attention in the first place.
11.17.2005 8:13am
Bob Bobstein (mail):
politicians of both sides use the term to mean "wrong."

Right. It's name-calling. Conservatives may have initially popularized the term when Courts determined that the Constitution protected certain rights that hadn't been protected in the past. But, with a Rehnquist Court that overruled Congress at a record clip, the term lost some of its ideological zing.

Sincerely,

Bob
11.17.2005 8:18am
Q.:
I thought at the time of the decision that this was a fissue point for conservative thought (much like questions related to porn are fissue points for liberal legal thought). It appears here, and in general, the conservative legal intellegensia is losing out. Eugene's position is principled within the conservative legal movement, but it is on the short end of the stick.

I do think that the overwealming (admittedly demagogic) support the resolution recieved in the house shows us that the House is more than willing to not take a tough political stand (i.e., parental consent laws could be tied to all sorts of education bills -- just pass a law if you think the parent should have such a right!) but instead to make noise. Indeed, passing a law that is applicable to all 50 states, rather than just those within the purview of the 9th circuit, is better if you accept this position. Having the People's House pass the buck to a lower court is a horrible way to run a democracy regardless of what political background you come from.


There were no public schools (as far as I am aware) in the U.S. when the Constitution was ratified

Boston Latin was founded in the 1630s, though it was not public in the sense public schools are today.

In any event, it seems odd (from a conservative pov) to argue that a federal substantive right must be crafted in order to protect a right that a state court (presumably) will not graft onto its constitutional, all in the name of the 9th amendment. That is a pandora's box that has few limits.
11.17.2005 8:53am
go vols (mail):
"This is yet another convincing argument for the complete separation of school and state. In Fascist Italy and Japan, Nazi Germany, Soviet Russia, and Communist China, it is (or was) the function of government to educate the children. Not so in the American Republic."

I'm sorry, but that simply displays a fundamental ignorance of the history and purpose of public education in the United States. Like it or not, public schools were developed in great part to encourage common citzenship and inculcate values. To suggest otherwise is simply false.
11.17.2005 9:25am
Medis:
go vols,

I'd also note that other democracies also provide public education. That suggests to me that the perceived benefits of public education do not depend on any particular political ideology. Indeed, I'd suggest that today, economic considerations are at least as important as political considerations when it comes to public education.
11.17.2005 10:01am
Ed:
Hmmm, should there not be restrictions on what an adult organization the school district in this case can say to a minor?

Lets say that the school district decided to bring a speaker in from the Man Boy Love Association, to teach the children about sex, would this be within their rights?
Would parents have a right to complain if they were not told about this until after the fact?

If that same hypothetical speaker talked to the child at a street corner rather then at a school function would he be violating the law?

Schools have a lot of leeway because they are given a responsibility of educating our children. We are placing our trust in them for this. It could be argued that this survey was a violation of that trust.
11.17.2005 10:14am
Adam (mail):
Of course, Justice Black said, "The layman's constitutional view is that which he likes is constitutional and that which he doesn't like is unconstitutional." And this is hardly the first time that the House has made a fool of itself.

go vols: Of course. The function of public schools, in the US as in Fascist and Communist dictatorships, is to inculcate the values of the State, which the State always calls "good citizenship".
11.17.2005 10:49am
Willard:
Zargon, "instrumentalist" decisions are those in which the outcome is not determined by the materials with which the judge purports to work (e.g., the text of the Constitution, judicial precedent, American historical practice), but by the political result that the judge seeks to reach. Now it may be that all decisions are instrumentalist, but it is assuredly not the same as whether I like the outcome.

A principled, non-instrumentalist decision would be one in which the materials mentioned above compelled the judge to a result that he or she would not vote for as a legislator. There are many opinions in which the judge claims to be reaching such a result. Any decision in which this claim is sincere (I have my doubts in most cases) is not instrumentalist.
11.17.2005 10:51am
TruthInAdvertising:
"Schools have a lot of leeway because they are given a responsibility of educating our children. We are placing our trust in them for this. It could be argued that this survey was a violation of that trust."

A lot of you seem to be missing the point. The question isn't whether it was right or wrong or a violation of trust. The question is whether you have a constitutional right that trumps the legislative process that resulted from a duly-elected School Board exercising its authority through itself and as delegated to the school administration. Eugene and others think not.

The solution isn't to go to court and sue. The solution is to go to the ballot box and elect people who will implement a policy you want and hire people that will implement that policy. Some people, including many conservatives apparently, want to circumvent the democratic process, and that's why Eugene is calling them on the point of demanding "judicial activism" which they claim they oppose.
11.17.2005 11:03am
JohnO (mail):
Ed:

In the example you raise, of course parents have a right to complain. But the appropriate way to complain is to throw out the school board, and demand that the teachers and administrators involved be fired. But the way to complain can't be to file a federal lawsuit because it would lead to a multiplicity of lawsuits where parents try to force terachers either to teach or not teach on whatever the parent's pet issue might be.
11.17.2005 11:03am
The Mike Porter (mail):
Go vols,

I am not ignorant of the history and purpose of public education in the USA. For most of our history our public education system did a good job of educating our young. My agrument is that we erred in making education public instead of private because our educational system has evolved into something approaching that of the totalitaian regimes. Obviously, we have a long way to go to reach their level of evil.

We are graduating rabid, thoughtless environmentalists, citizens totally ignorant of economics, and children taught that service to the common good is more important than their own pursuit of happiness (mandatory cummunity service as a graduation requirement.)

If education were a private endevor, parents would be seeking out schools that gave their children the best education instead of sending them to public schools determined to make sure all their graduates are politically correct.

And this doesn't even get into why the bureaucrats want to sexualize children at a younger and younger age. Could it be that there are more than a few perverts in the system who salivate at the prospect of highly sexualized young girls (and boys?)

It takes an act of congress and dispensation from the pope to give an aspirin to a student. Condoms? Abortion advice? Abortion service? Let's just take the parental responsibility in these areas away from the parents and let the bureaucrats take care of it! That's what public education has come to in this country. It never should have been a government function, at any level of government, to educate our children.

Professor Volokh is right that parental rights are not in the Constitution. Where in the Constitution does it authorize government at any level to remove parental authority from parents, particularly in the realm of education? Especially when the perverts are in charge?

Sincerely,

Mike Porter
11.17.2005 11:47am
Jack John (mail):

Medis: [If] the exact same holding had been applied to some other subject matter besides sex, we wouldn't even be talking about this case. Indeed, we would be laughing at the frivolity of the lawsuit, should it even be brought to our attention in the first place.



You're right. If the parents had been asking for the right to prevent their children from interacting with blacks, "we would be laughing at the frivolity of the lawsuit, should it even be brought to our attention in the first place."
11.17.2005 11:48am
Medis:
Jack John,

Great example! To modify your hypo a bit, if some racist parent had brought a 1983 action claiming that his or her constitutional rights were violated when the school taught his or her child about George Washington Carver (something I remember clearly from my own public school education), I think we would laugh at the frivolity of such a suit.
11.17.2005 11:56am
Jack John (mail):
The Weaselly Equivocator: To modify your hypo a bit, if some racist parent had brought a 1983 action claiming that his or her constitutional rights were violated when the school taught his or her child about George Washington Carver (something I remember clearly from my own public school education), I think we would laugh at the frivolity of such a suit.

Why do you need to modify the hypo if your original argument was sound? Just admit that what you said was nonsense and I'll leave you alone. LOL. There are dozens upon dozens of segregation cases or desegregation cases, even well into the 80s, disproving your claim.

Anyway, Philadelphia is having a problem with white parents who don't think their children should have to learn black history. No one on either side thinks the issue is frivolous. So, even your new hypo is trash.
11.17.2005 12:02pm
Jack John (mail):
Oh, and I'm done.
11.17.2005 12:04pm
Medis:
Jack John,

I see you are once again spoiling for a fight. But I'm not interested.
11.17.2005 12:05pm
Medis:
Oops--cross-posted. Anyway, Jack John, I guess you aren't spoling for a fight: you just wanted to land a punch and then skedaddle.
11.17.2005 12:06pm
Aultimer:
Mike Porter - quite a strawman you have there. I think his tinfoil hat is slipping, though.

Jack John - Medis said "subject matter" - a topic of educational activity, if you will. Schools do TEACH about racial segregation in America and other places. Do you envision the yet-to-be-found constitutional "right of parental freedom" to require the goverment to provide for selection of each and every topic taught in government schools?
11.17.2005 12:20pm
B. B.:
Wow, you mean people in Congress are grandstanding again? That like, never happens.

Of course, they ended up getting what they wanted in the whole baseball/steroids thing...

Ras:
"Just my layman's take, but I'd bet that had the District Court initially, and in a respectful tone, adopted the 9th's position, none of this would've happened."

You haven't dealt with Focus on the Family people and other similar groups much before, have you? It doesn't matter what the opinion said, the result would have been the same and they would have thrown the same fit.

Seriously, if the parents had such a big problem with this, their solutions are to:
1) Send kids to private school
2) Home school
3) Vote out the school board at the next opportunity and get new people in who won't stand for what the parents didn't like. The people have spoken in Dover, PA. They apparently spoke in Kansas too (previous board got rid of ID stuff, new one redefined "science" and put ID back in). This was not a Constitutional violation. Not everything that pisses one off is a Constitutional claim, and it would be nice if people would seize on this to remind everyone that we're supposed to use the power of the vote instead of running to the court every time someone does something we don't like.
11.17.2005 12:23pm
Aultimer:

Philadelphia is having a problem with white parents who don't think their children should have to learn black history. No one on either side thinks the issue is frivolous.

Last I checked, Philadelphia had a school board, a city council, mayor, state house, governor and layers of elected judges who feel quite empowered to make rules for Philly schools. No constitution required.
11.17.2005 12:24pm
Jack John (mail):
Last I checked, Philadelphia had a school board, a city council, mayor, state house, governor and layers of elected judges who feel quite empowered to make rules for Philly schools. No constitution required.

I didn't say it was. I simply noted that neither side of the debate finds the debate to be frivolous. If a constitutional challenge were brought, I do not think the strong feelings on either side would dissipate into laughter. That contradicts Medis' view that everyone would laugh and pop corks.
11.17.2005 12:30pm
Jack John (mail):
Ault,

Medis refers to "sex" as the relevant subject matter, not educational activity. Thanks for trying to raise the level of generality, much like Laurence Tribe does in his activist lawyering.
11.17.2005 12:32pm
Jack John (mail):
Medis,
No fight is needed. There was no punch; I invalidated your argument.
11.17.2005 12:33pm
Medis:
Aultimer,

And personally, if those white parents try to bring a 1983 action claiming that their constitutional rights have been violated, I will in fact laugh at the frivolity of their suit.

Of course, Jack John is just doing his thing (trying to drum up some sort of personal spat). Nonetheless, I do think it is worth noting that even though I think these law suits are laughably frivolous, that doesn't mean I think the underlying policy issues are frivolous. Indeed, I think how we go about dealing with subject matters like race relations and sexuality in our public schools is an issue worthy of attention, and we could reasonably raise that issue with all the people that you suggest.

So, what is laughable to me is not raising the issue of how schools should deal with sensitive subject matters. Rather, what is laughable to me is the idea of raising that issue in a 1983 action.
11.17.2005 12:39pm
Clayton E. Cramer (mail) (www):
The real upset is not that Reinhardt was following the law on this; the upset is that Reinhardt, like many judges (and not just liberal judges), is an activist to get the results he wants, and shows judicial restraint to get the results he wants.

Back when this decision came out, I blogged that I believe that Reinhardt's opinion was correct, but the results would be very bad--and that there is no question that Reinhardt would have ruled differently if the nature of what the school was doing had been different:
I do wonder how Reinhardt would have written the decision if the situation were reversed--if a public school was teaching (with no religious overtones or origins) that homosexuality is depraved, or that having babies is the highest aspiration of a woman's life, and a parent objected. I rather doubt the results would have been the same.
Part of the difficulty is that liberals will not be content until they have been successful in brainwashing kids into accepting homosexuality and sexual promiscuity. In spite of the best efforts of liberals, Christianity has not yet been turned into a weirdo, minority religion in the U.S.
11.17.2005 12:42pm
Skid (mail):
Ok, well, I suppose this is part of a vast left-wing conspiracy, or it could be an example of the 9th Circuit not wanting to "legislate from the bench." After all, this was a substantive due process claim...I was under the impression those were bad? Or are they only bad if they violate your beliefs, but not if they help your cause?

Parents certainly have many rights in society. Many of them are common law rights, or state determined rights. However, nowhere does that right extend to telling teachers what they can teach by court order. If parents are incensed by it, then they should speak to their elected representatives. And, if everyone here doesn't like that, they should band together and come up with an amendment giving parents the rights you want. But a parent's right to tell teachers what to teach is found in the same place a woman's right to choose is...either you can find such unenumerated rights or you can't...
11.17.2005 12:57pm
Dan Goodman (mail) (www):
I may have missed it, but I don't see either side talking about childrens' rights.
11.17.2005 1:14pm
Clayton E. Cramer (mail) (www):
As I have just blogged here:

Yes, it is true: it is better for Reinhardt to sometimes get this right than to always get it wrong. What a lot of Americans are becoming tired of, however, is the way in which judges like Reinhardt use no consistent strategy for deciding cases, other than getting the results that they want.

The Constitution certainly provides some guarantees of individual rights. I am not particularly interested in living in an unlimited democracy--the masses sometimes make mistakes, and sometimes very serious mistakes. Increasingly, however, judges are arbitrarily deciding which cases involve fundamental human rights (and therefore the majority does not rule) and which do not (the majority can do as it wishes) based primarily on the results that the judges want to see. With a choice like this, I'll take my chances with unlimited democracy.

The entire notion of a Constitutionally-limited republic is in danger of being discredited by judges like Reinhardt--who would certainly have ruled the other way if the Palmdale School District had taught elementary school kids that homosexuality was a bad thing, or asked kids, "So, do Mommy or Daddy ever smoke marijuana?" Let's stop the pretense that liberal support for this decision is because of concern about preserving the integrity of the judicial process. The reason is that Reinhardt's decision creates the correct precedent for public schools to run propaganda campaigns for homosexuality and promiscuity--issues of paramount importance to the left.
11.17.2005 1:14pm
Clayton E. Cramer (mail) (www):

Parents certainly have many rights in society. Many of them are common law rights, or state determined rights. However, nowhere does that right extend to telling teachers what they can teach by court order. If parents are incensed by it, then they should speak to their elected representatives.
So if a school district started teaching that homosexuality is a bad thing, and a couple of parents objected and filed suit, Judge Reinhardt wouldn't declare that teaching failed the rational basis test, and order the school district to stop? Yeah, right.
11.17.2005 1:18pm
Medis:
Clayton,

But what about the House resolution, the subject of the original blog post? Don't you think the House is also playing its part in undermining the very idea of a Constitutionally-limited republic?
11.17.2005 1:37pm
Skid (mail):
Well, whatever one Judge may do, that doesn't make it right...the point is that you either accept judicial protection of unenumerated rights or you don't...which is Mr. Cramer et al?
11.17.2005 1:43pm
Eugene Volokh (www):
Folks: Be polite. If you disagree with someone else's argument, explain why it's wrong; don't call it "nonsense" or "trash." Focusing more on the substance will be more rhetorically effective, more enlightening, and more likely to stimulate more substantive replies.

Also, don't clutter up the thread with posts that simply assert that one's argument was right, without adding any new substance.

People who don't adhere to these guidelines will be banned from posting.

Eugene
11.17.2005 1:58pm
Medis:
Eugene,

Duly noted, and I apologize for being pulled into a non-substantive discussion.
11.17.2005 2:04pm
Clayton E. Cramer (mail) (www):
Medis asks:

But what about the House resolution, the subject of the original blog post? Don't you think the House is also playing its part in undermining the very idea of a Constitutionally-limited republic?
I'm not thrilled with their actions, but who drew first blood?

Skid asks:

Well, whatever one Judge may do, that doesn't make it right...the point is that you either accept judicial protection of unenumerated rights or you don't...which is Mr. Cramer et al?
I would like a consistent and logical application of this policy. The Ninth Amendment was originally understood as a limitation on the federal government alone. (Madison may have had other desires, but I have seen no evidence that this desire was shared by the First Congress or the states.)

There is no credible basis to believe that the Fourteenth Amendment incorporated the Ninth Amendment--proponents of the Fourteenth Amendment listed the first eight amendments as items that would be incorporated against the states by the privileges and immunities clause. Of course, since liberals have refused to acknowledge clear Congressional intent on the privileges and immunities clause....

What unenumerated rights did the Ninth Amendment protect? It isn't anything and everything that makes a liberal's little heart go pitter-patt. Before getting to the unenumerated rights list, let me emphasize that if you believe the Ninth Amendment is a limitation on the federal government alone, then the discussion below only applies to questions of federal law. If you believe that it was intended as a limitation on the states as well (a position that I find historically unsupported), then the discussion below would apply to both federal and state laws.

It seems pretty clear that if an action was a criminal offense in 1789 in every state, the First Congress almost certainly did not mean to hide these actions under the inkblot. Example: oral and anal sex; homosexuality; libel; obscene materials. The Ninth Amendment isn't a straight-jacket; the states and the federal government could have criminalized an action in 1789, but they are perfectly free to repeal those laws--but this doesn't make them constitutionally protected.

If an action was legal in every state in 1789, it would be a plausible argument that this is a right hiding under the inkblot. I would agree that there might bizarre items that no one could have imagined, but that no one in 1789 considered a right (like the right to possess nuclear weapons, or to operate spacecraft), but I think if you can find an activity or behavior that was lawful everywhere in 1789, it is, at first glance, a plausible argument that this is an unenumerated right. Example: growing marijuana; using opiates.
11.17.2005 2:07pm
Skid (mail):
Ok, well, under either interpretation of the 9th Amendment, it would seem to me that the preferred approach then would be a historical approach to the 9th Amendment, which would then either be binding on the states and the federal government, or just the federal government.

So, in reality, isn't that just shifting the Court's substantive due process/fundamental rights jurisprudence out of the 14th Amendment and into the 9th Amendment? And if that's the plan, then the debates over abortion, homosexuality, or drugs come down to a historical debate.

Furthermore, you run into the same problems that the Court has in considering subst. due process. How broadly are you defining unenumerated rights? For example, you seem hung up on homonsexuality, so let's work with that. So, we could say that we're examining sodomy, which would narrow the right dramatically. Of course, at the same time, it could be expanded to say that the right is simply to "be with who you want," which would broaden the right to a point that it may well be protected. So, in your new 9th Amendment jurisprudence, how broadly are rights defined?
11.17.2005 2:18pm
Medis:
Clayton,

I guess "who drew first blood" depends on how far back you want to go. If you are talking about the courts deciding issues they shouldn't, some people would go at least as far back as Dred Scott, and others back to Marbury, or even before. I am less familiar with the history of Congress, but I suspect that you could find examples of elected officials urging courts to decide issues they shouldn't at least as far back.

But in any event, I don't think it matters. As my mother used to say when I was fighting with my brother, "I don't care who started it. I just want you both to stop."
11.17.2005 2:22pm
Master Shake:
Slightly off-topic, does "fissue point" count as one of Eugene's "led astray by context" terms from the other day (say, from "issue point")?
11.17.2005 2:47pm
corngrower:
I have yet to read the entire thread. But. how can any judge in USA write a sentence in a legal opinion that denies the 'right of a parent' to the information afforded their own children?? You legal eagles have a real . real. real problem with you own,supposed thoughts of knowing what is best for our children. Thats been working so well for the last 40years. There is no, none nada not even on a hope, that this court should have issued an opion, let alone heared the case.

Yes over time you can elect several new members to the School board that would over time, fire the addmistration.

Either Parents are in charge, or they are not. Judges can find parents liable for criminal acts of thier children,,,,OR parents can be absolved of all responsibility!!! So your run away kid that kills someone because they are drunk and driving the family car is only resonsible to the govt!??

I Am ranting but this is stupid..I suppose I have to go thru the courts before I can shoot and kill a person trying to rape my wife? Parents rule their own children! Not the 9th circus
11.17.2005 3:51pm
Master Shake:
Thanks Corngrower, that was very helpful.
11.17.2005 3:57pm
Clayton E. Cramer (mail) (www):

How broadly are you defining unenumerated rights? For example, you seem hung up on homonsexuality, so let's work with that. So, we could say that we're examining sodomy, which would narrow the right dramatically. Of course, at the same time, it could be expanded to say that the right is simply to "be with who you want," which would broaden the right to a point that it may well be protected. So, in your new 9th Amendment jurisprudence, how broadly are rights defined?
I'm not hung up about homosexuality. I pick that as an example because it is the one that is driving much of current liberal judicial activism--an area where a majority is not prepared to recognize same-sex marriage, and there is still some reluctance (in some states) to legalize homosexual behavior.

The right to be with who you want? Freedom of association would seem like a pretty easy to defend unenumerated right. I'm not quite sure where you are going with this. If you mean that this implies a right to engage in homosexuality, that won't survive an historical examination. You could hang around with whoever you wanted in 1789, but if you were caught having anal or oral sex (and especially with someone other than your spouse), you could be prosecuted. There aren't a lot of prosecutions for this, of course, because this was usually a private consensual activity. But just because it wasn't often prosecuted doesn't mean that it was lawful.

By the way, I was always a lot more sympathetic to the "privacy" argument about homosexuality, but the more that I have studied how Griswold came to its conclusions, the less impressed I with this as a constitutional argument. There's certainly a strong pragmatic argument that what consenting adults do in private is none of the government's business (although you can also make a pragmatic argument as well that the government has a right to discourage or prohibit high risk behaviors--such as unprotected anal sex).

A privacy right, however, isn't the core of the same-sex marriage claims. If you want to do something in private--have homosexual sex, have your relationship solemnized in red Speedos while the guests wave sparklers in the pool--fine. I can buy this argument. But if you want to use a privacy argument, then don't insist that the government has to recognize something hiding under privacy, or force other people to go along with it under penalty of fines.
11.17.2005 3:58pm
Clayton E. Cramer (mail) (www):

I guess "who drew first blood" depends on how far back you want to go. If you are talking about the courts deciding issues they shouldn't, some people would go at least as far back as Dred Scott, and others back to Marbury, or even before. I am less familiar with the history of Congress, but I suspect that you could find examples of elected officials urging courts to decide issues they shouldn't at least as far back.

But in any event, I don't think it matters. As my mother used to say when I was fighting with my brother, "I don't care who started it. I just want you both to stop."
I'm curious: How often did it ever stop without one of you getting punished?

The judiciary is out of control. Yeah, there are cases like Cleburne where I can see why the Court decided that there was no rational basis for the law. But once a bunch of unelected officials start deciding that the elected representatives have no rational basis for a law, where does it stop? Who is in the driver's seat? The judges, or the people? Obviously, liberals would prefer judges to be in charge, because liberals have the sympathy of the judges, and they clearly no longer have any substantial support among the people.
11.17.2005 4:04pm
Clayton E. Cramer (mail) (www):
Master Shake writes:

Thanks Corngrower, that was very helpful.
Corngrower is too upset to construct his argument terribly well--and I would even argue that as a matter of law, Reinhardt's decision was correctly decided. But you better wake up: Corngrower is pretty typical of a lot of us who are tired of a bunch of lawyers looking down their noses at the people that pay the taxes and are supposed to be in charge of this country, telling us, "You aren't smart enough to make decisions about what your children are going to learn in public schools."

Keep it up: the day is coming when we may revise the Constitution in a way that will make liberals regret their domination of the federal bench. Don't force us to turn this into an unlimited democracy--but I am beginning to think that there may not be any realistic alternative to the current system.
11.17.2005 4:09pm
Master Shake:
Thanks Clayton, that was helpful.
11.17.2005 4:13pm
Skid (mail):
Ok, well, I'm not going to take Mr. Cramer's comments as some sort of threat, but I'm not saying that parents don't know what's best for their child, nor do I believe is the 9th Circuit. Rather, it's the fact that despite parents perhaps knowing what is best for their children, our constitutional structure places that decision with state governments, who in turn delegate it to local governments. If those local governments make a mistake which does not violate the Constitution, then that error is best cured through the existing law, or through an election.

As for the growing discontent "the people" may have with the legal system, they are free to change it, to the disadvantage, advantage, or push for liberals. As most political theorists recognize, the people have a right to revolution, and perhaps the less abrasive amendment process.

Let me spin your argument in another direction---parents know what's best for their kids, therefore, they should be able to judge how they should learn about sex. Furthermore, parents, I believe, also are often able to deny life-saving medicine based on religious conviction (perhaps someone can clear this up for me). Well, I believe that women know what's best for their body, and theoretically, they should know what's best for their kids, under your statements. So, in that case, why doesn't the mother have the choice to abort, even though, if I am right, she would have the right to deny life-saving medicine? I'm all for personal autonomy in as many areas as possible...however, when dealing with the instrumentalities of society, it's kind of ironic to argue deference when you're challenging the actions of school officials....
11.17.2005 4:31pm
Per Son:
That is funny. A liberal dominated bench. Okay. That is a good one.
11.17.2005 4:39pm
NickM (mail) (www):
Based upon news reports, I thought the decision was absurd - until I read the opinion.

Hard cases make bad law. So do poorly litigated cases. Here, it appears that plaintiffs' attorneys missed the boat on the First, Fourth, and Fifth Amendment privacy grounds that would have provided a stronger basis than substantive due process for finding an infringement of rights, because they focused their suit as if it were about school provision of educational information related to psychological and/or sexual matters rather than formal questioning of students (as young as 1st graders) about personal sexual and psychological matters. As to the former focus, I believe the court was correct. As to the latter focus, a court following precedent could not readily dismiss it for failure to state a claim.

Without sketching out a full argument on this, the parents' claims should have been recast as an invasion of the Constitutional right of privacy exemplified by the First, Fourth, and Fifth Amendments by the compelled questioning of the children about private subjects under a misleading and deceptive, and therefore invalid, waiver of the right to refuse to answer.

The middle paragraph of page 15077 of the slip opinion (and footnote 8) indicate constitutional support for such a claim under Whalen v. Roe, 429 U.S. 589, 599-600 (1977), but states that the parents made no such claim.
Whether such a claim would succeed would depend on determinations regarding the effectiveness of the consent forms signed by the parents - determinations that cannot be made at the pleading stage.

The opinion's broad reach of parens patriae power to investigate into circumstances where there is no individualized suspicion of wrongdoing or malfeasance is troubling, but should be properly limited in any case where what is argued is that something which IS a fundamental right is violated.

Hopefully no future parents' attorneys miss the valid claim.

Nick

These children were

These children were asked 79 personal questions
11.17.2005 4:48pm
Clayton E. Cramer (mail) (www):

I'm all for personal autonomy in as many areas as possible...however, when dealing with the instrumentalities of society, it's kind of ironic to argue deference when you're challenging the actions of school officials....
My strongest objection is to the inconsistency of liberal use of the personal autonomy argument. A consistent "personal autonomy" argument would be very libertarian. While I don't like some particular results of such a policy, in practice, liberals don't support it consistently. They support it for abortion, drugs, and sex, but oppose it when it comes to gun ownership, self-defense, and employment. What consenting adults do in private should be none of the government's business--and it shouldn't matter if that is sodomy or employment. Liberals, of course, say "Yes" to the first and "No" to the second.

A bit more severe of a problem is that a consistent personal autonomy isn't what the Constitution says. There was no consistent personal autonomy written into our laws in 1789, and no subsequent amendments have required any such change to the laws. Judges have dodged and weaved to achieve ends that they liked (and which I have sometimes liked, as well) rather than admit that there is no general "right to privacy" in the Constitution. You could derive a "right to marital privacy," I suppose, and Griswold could have reached similar conclusions by making some sort of unenumerated rights argument based on the English practice of treating a married couple as one legal entity with respect to property, contract, and obligation to testify against one's spouse. But this wouldn't have allowed the rest of the liberal agenda derived from Griswold.

Roe v. Wade could have reached a somewhat similar result, again based on unenumerated rights, the state of abortion laws in 1789, and some probably unjustified extension of the Ninth Amendment to the states, with respect to first trimester--but not some of the other results.

The ends do not justify the means. However much you might like the power that comes from judicial usurpation when you are in power, the day may come when the left no longer runs the law schools and the federal bench. (It may be coming in the next few weeks, with respect to the Court.) If you think it is bizarre to think that the left is in control of the law schools and the bench--Professor Volokh fancies himself center-right--but just about anywhere in the real world, he would be considered a pro-gun extreme liberal. Even many libertarians (in the real world, instead of the academic one) draw the law at legalizing bestiality.
11.17.2005 4:50pm
NickM (mail) (www):
I have no idea why a sentence fragment that I thought I deleted appears twice (once only in part) at the end of my post.

Nick
11.17.2005 4:51pm
Skid (mail):
Alright, well, instead of railing on about what liberals do and don't do, how about just turning to the question? In this case, the parents are asking a court to recognize an unenumerated right. If you support the court doing that, then, the next question becomes how do you identify an unenumerated right? If it is based on a historical record, then I think you're going to run into problems, seeing as history can be twisted.

However, even if that's true, in that case, you are opening the door to a landslide of unenumerated rights, many of which may offend you, me, or someone else. One of those for example is abortion, whether protected through the 9th or 14th Amendment. So, all I'm suggesting is that you can't have it both ways---you can't wail melodramatically when a court finds an unenumerated right you disagree with and then cheer otherwise...well, i guess you could, but it would ring kind of hollow....
11.17.2005 5:03pm
Aultimer:

Cramer:
tired of a bunch of lawyers looking down their noses at the people that pay the taxes and are supposed to be in charge of this country, telling us, "You aren't smart enough to make decisions about what your children are going to learn in public schools."

The problem is that the media (including bloggers like Cramer) COULD understand complicated issues like this decision and explain them to their audience prefer to take the cheap route to inflame, or twist it to flog their same old message.

This case has nothing to do with usurping parents decisions. It just tells them which part of the government is involved in choosing material presented public schools.
11.17.2005 5:06pm
Clayton E. Cramer (mail) (www):
Skid says:

However, even if that's true, in that case, you are opening the door to a landslide of unenumerated rights, many of which may offend you, me, or someone else.
I've already stated that I think Reinhardt made the right decision in this case. I just would like liberals to show a similar level of judicial restraint when the schools do something that they don't like.

Aultimer writes:

The problem is that the media (including bloggers like Cramer) COULD understand complicated issues like this decision and explain them to their audience prefer to take the cheap route to inflame, or twist it to flog their same old message.

This case has nothing to do with usurping parents decisions. It just tells them which part of the government is involved in choosing material presented public schools.
Go back and read what I wrote a couple of weeks ago about this decision: I didn't like the results, but the case was properly decided. I just want liberals to consistently follow the law, instead of changing the rules when they don't like the results. You know that if the school had discouraged homosexuality, or allowed someone qualified to speak about Intelligent Design critiques of evolution, Reinhardt would have found that there was no rational basis for their actions, and allowed the suit to go forward.
11.17.2005 5:11pm
Jack John (mail):
Eugene,

I must say I wasn't personally insulting Medis. When in order to have meaning a proposition must be categorically absurd, it is, by definition, nonsense. When one must equivocate in order to deduce B from A, one's argument is invalid. Are we not permitted to call invalid arguments invalid or nonsense nonsense? You'd think this was George Mason's campus.
11.17.2005 7:10pm
B. B.:
"I just want liberals to consistently follow the law, instead of changing the rules when they don't like the results. You know that if the school had discouraged homosexuality, or allowed someone qualified to speak about Intelligent Design critiques of evolution, Reinhardt would have found that there was no rational basis for their actions, and allowed the suit to go forward."

Amd liberals would like conservatives to consistently follow the law instead of changing the rules when they don't like the results. That door swings both ways. The discussion will get a lot better when both sides can finally admit that this isn't totally about judicial philsophy (even at the SCOTUS level in most cases) and that personal beliefs can have a heavy influence on a judge's ruling, be that judge liberal or conservative.

Of course, we could fix all these problems with cloning. I'm all for cloning -- we could clone a few judges who do actually seem to follow the law consistently and not fudge it to get the results they want. We can even make one with more libertarian leanings, in the spirit of this blog. I can see it now...

Ninth Circuit case heard by Kozinski 9A, Kozinski 9D, and Kozinski 9R. Kozinski 9D wrote for a unanimous court, affirming the decision of lower court judge Kozinski NDCA01.

Or we could have robots. However, then we'd have to have insurance against robots, because when they come after you with their metal arms, you just can't get away, because robots are made of metal, and metal is strong. They might even steal old people's medicine, because that's what they use for fuel.
11.17.2005 8:03pm
Eugene Volokh (www):
Jack John and others: This commend thread isn't like George Mason's campus. It's not like any university. It's like a dinner party. Some dinner party hosts don't mind it when guests call each other's arguments "nonsense" or "trash," or crow about how they've supposedly "invalidated [another guest's] argument." Other dinner party hosts do mind this -- they're trying to set a different tone for their parties -- and they therefore stop inviting guests who do this sort of thing.

Fortunately, it's a big Internet, and you get to choose which of very many dinner parties you want to go to. But if you enjoy a host's parties enough to want to show up to them, please keep in mind the guidelines that the host sets up for the parties, especially if you don't want to be taken off the guest list.
11.17.2005 11:17pm
Jack John (mail):
Eugene,
I understood the threat the first time. I take it that a denigrating tone is unwelcome.

But, your comments, despite purporting to use me as an example for others, seem directed at me and me only. You've asserted that I was "crow[ing]," which presupposes a personal motive that wasn't there. If you check the thread, I only noted that I had invalidated Medis' argument after he attacked me personally, twice. First, he said I was spoiling for a fight; in the alternative he accused me of being a coward for not spoiling for a fight. I didn't respond to those claims for hours. I'm not sure why his personal attacks, which were unrelated to any argument, are worthy of letting pass, but my comments are not. I understand that "two wrongs don't make a right," but the word "trash," which you have cited twice, I used in a conclusion. I noted that Medis had committed a fallacy by erecting a straw-man and knocking it down. I take your point that it was egregious to call this tactic "trash." But that doesn't mean it was a personal attack without any substance, e.g., calling someone belligerent or cowardly or a braggart. Likewise, I used the word nonsense in the middle of a substantive comment: sure, the word nonsense, in context, may have seemed rude. But I was using it in its technical sense; "if XYZ is true, then it would result in absurdity."

Obviously, it is your website, and you can ban me if you like, without reason. You can set up a policy that is entirely inconsistent and arbitrary. But I really don't understand why, if substantive remarks with a rude tone are unacceptable, then purely personal attacks with a rude tone are acceptable. Frankly, if you'd stepped a little earlier, and aimed to police the right person, I wouldn't have felt the need to defend myself.

No offense or tone intended.
11.18.2005 10:30am
Clayton E. Cramer (mail) (www):

Amd liberals would like conservatives to consistently follow the law instead of changing the rules when they don't like the results.
Actually, a lot of conservatives would like conservative judges to follow the law instead of changing the rules when they don't like the results. This is part of why I like Justice Thomas more than Justice Scalia--who occasionally seems to let the result get in the way of his interpretive model.
11.18.2005 12:17pm
Eugene Volokh (www):
Folks: I've tried to set up civility guidelines on this blog, and I try to enforce them when I see violations. But I don't carefully read every single post; there's no time for that.

Sometimes, therefore, I'll catch X's misbehavior without catching Y's; sorry about that, but it's inevitable. And sometimes I'll have a different judgment about the relative egregiousness of X's and Y's conduct than others (for instance, X) might. That too is inevitable.

So please keep that in mind, and please comply with posting guidelines yourselves, without viewing others' misbehavior as justification for engaging in your own. Also, please don't view my silence about someone's breach as tacit approval; it may just be that I didn't notice his post when skimming the comments thread.

Eugene
11.18.2005 12:56pm
corngrower:
Back to the point. Who is in charge of my child? If my 14 year old takes my car for a joy ride and causes a death, guess what I am responsible. but I do not have the right to sue the school for the crap they teach?
11.18.2005 2:48pm
Wince and Nod (mail) (www):
Actually, a lot of conservatives would like conservative judges to follow the law instead of changing the rules when they don't like the results. This is part of why I like Justice Thomas more than Justice Scalia--who occasionally seems to let the result get in the way of his interpretive model.

Hear, hear!

Earlier, I was given these choices:

1) Send kids to private school
2) Home school
3) Vote out the school board at the next opportunity and get new people in who won't stand for what the parents didn't like.


Mrs. Wince and I picked home school. Let's pick a person with fewer options, say, for the sake of argument, a poor single mother of two sons, who is also a lesbian, living in a conservative district in my state, Kansas. Her school district adopts an abstinance based sexual education curriculum that also emphasizes the well documented medical hazards of anal sex, especially as an alternative to procreative genital sex. Our mother is concerned that this might prevent one of her boys from accepting his own homosexuality, even though the curriculum was designed to be orientation neutral. She tries to get the school board to tone it down. They think that orientation neutrality takes things quite far enough. She can't afford private or home school, and try as she might, her single vote in only one school board district fails to elect a majority of people who agree with her to the board, even when combined with her tireless campaigning. Please explain to me exactly how we are protecting her parental rights.

I have a simple idea. Letting the government runs our schools is no better than letting the government run of newspapers, radio stations, TV programming, churches or blogs. After all, if the government ran all those other things they could teach good citizenship and communitarian values to adults, too!

As far as I'm concerned, just like parents had the right to teach their children German in Nebraska, they also have the right to have their children not to be taught things they don't believe in, such as Intelligent Design. That's why I think school choice is the best expression of the spirit of the Constitution, even though I am quite doubtful about the letter. With school choice I'm not cramming things I agree with, like school prayer, down atheist's kids throats, and you aren't cramming things I don't agree with down my kids throats.

With school choice everybody wins, including teachers who can pick a school which reflects their beliefs rather than having to toe some school board line.

Yours,
Wince
11.18.2005 4:05pm
Edward A. Hoffman (mail):
Wince:

How would eliminating public schools help your hypothetical mother? If she's the only one around who feels as she does, why would private schools be more likely to accommodate her than public schools?

Now let's suppose the parent in Kansas isn't a poor, single, lesbian mother but instead a perfectly mainstream, middle-class Jew, who lives with her husband and child and who has a full-time job outside the home. Given that the large majority of her neighbors are Christian, it turns out that all of the local private schools teach Christian beliefs. What is she to do?
11.18.2005 9:24pm
Wince and Nod (mail) (www):
Edward,

I don't want to eliminate public schools. That has similar electoral appeal to required comsumption of broccoli, and I am more pragmatic than to want to destroy such a popular institution. I want to give people the choice of opting out, via vouchers. But even if there were no public schools there would still be plenty of secular schools in America. In addition, this is the age of the Internet. Vouchers can pay for distance learning too.

Yours,
Wince
11.18.2005 11:13pm