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When are controversial actions free speech? Depends on which flag is flying

Monday, June 9th, 2008
Two controversies involving schools, kids and flags have made recent news in Minnesota. But the cases had radically different outcomes.    

The first occurred in May at Dilworth-Glyndon-Felton Junior High. Four eighth-graders refused to stand while the rest of their class recited the Pledge of Allegiance to the American flag. The kids got one-day, in-school suspensions. But school officials lifted the suspensions immediately after the American Civil Liberties Union of Minnesota fired off a letter pronouncing that the First Amendment protected the students’ conduct.

The ACLU’s letter warned of dark consequences for school officials who had violated the eighth-graders’ free-expression rights. Teachers could be sued personally. School authorities should apologize to students. The ACLU cited soaring language from First Amendment court cases: “Freedom to differ is not limited to things that do not matter much. … The test of its substance is the right to differ as to things that touch the heart of the existing order.”

Let’s turn now to the second incident, last week at Bloomington Kennedy High School. Three seniors arrived on the last day of school in trucks flying the Confederate flag. They said they were Dukes of Hazzard fans, celebrating the Southern lifestyle.

Kennedy officials suspended the students for three days, barring them from their graduation ceremony.

Again the ACLU weighed in — but this time with a helpless shrug. Any challenge to the school’s action would have a “very, very slim” chance of succeeding, the organization’s leader told the Star Tribune.

 

Why was the sacred “right to differ” suddenly, well, gone with the wind? Chuck Samuelson, executive director of the ACLU of Minnesota, says courts have held the First Amendment doesn’t protect student speech that is judged to be “a material disruption of the educational process.” That means Kennedy officials can decide that “at this particular school at this particular time, the Confederate flag” is disruptive and “might provoke violence.” About 20 percent of Kennedy students are black, according to the Minnesota Department of Education.    

But what if a large percentage of Dilworth students are patriots? Couldn’t disrespect to the American flag risk disruption there?

Whose ‘right to differ’?

I’m sympathetic to school administrators — it’s tough keeping order at schools these days. But civil libertarians are supposed to fight for the “right to differ,” not imagine ways it can be squelched.

The reasoning on display here opens the door to political correctness ruling the day. At Dilworth, the kids were disrespecting the flag and stiffing the establishment — classic ’60s New Left stuff — so they get a halo. At Kennedy, on the other hand, NASCAR-type, Dukes of Hazzard kids get the ax, with the ACLU’s whimpering acquiescence.

The implications of all this are troubling, as Samuelson acknowledges. The notion that free expression is limited by how offensive some find it, and how likely they are to turn violent, creates a “heckler’s veto,” potentially allowing every sufficiently intolerant group to silence those with whom they disagree.

Free expression has more protection outside schools. And in the past, the ACLU has not been intimidated by arguments that the threat of disruption should trump free-speech rights. Take the famous 1978 Skokie case, in which the ACLU defended Nazis’ right to march through a neighborhood filled with Jewish holocaust survivors. Opponents of allowing the march used the disruption argument, but the ACLU didn’t heed it.

Down the road, where might the disruption argument lead? If a speaker goes to a high school or college campus to speak in favor of the Iraq war or against same-sex marriage, the authorities can say it is “disruptive” because it’s likely to offend, so it’s prohibited despite the First Amendment?

Samuelson says that the ACLU is disturbed about the “heckler’s veto” and he believes the Kennedy students should have been allowed free speech. But the trend in the courts away from student rights is clear, and the First Amendment “is not absolute,” he says.

 

If we’re going to link the First Amendment and disruption, we have a timely case close at hand. The ACLU is seeking permits under the First Amendment for thousands of protesters to demonstrate as close as possible to the site of the Republican National Convention in September. Yet at least one protest group that advocates “militant direct action” has boasted of its plans to block freeways, confront police, shut down the convention and paralyze the whole Twin Cities.    

Sounds mildly disruptive. Let’s just hope they don’t bring any Confederate flags, or things might get out of control.

It’s a topsy-turvy world.

Who Will Get the Last Word on Dilworth’s Pledge of Allegiance?

Wednesday, May 14th, 2008

Brandt Dahl wasn’t exactly aiming for the Student of the Year Award when he refused to stand for the Pledge of Allegiance last week at Dilworth-Glyndon-Felton Junior High near Moorhead. But I suspect the eighth-grader may have had a little more swagger in his step after publicly setting school administrators there back on their heels.If Brandt’s infraction had been a smart-alecky spitball, his one-day, in-school suspension — one of four meted out to errant students — might not have been viewed in some quarters as Dilworth’s equivalent of Abu Ghraib. But in recent decades, the slightest school pressure to honor our flag has inspired a rescue mission from a legal heavyweight — the ACLU.

Last week, the ACLU of Minnesota demanded that the district cease and desist from requiring students to stand during the pledge — students have not been required to recite it — and warned that the district could be liable for attorney’s fees and costs.

The MCLU informed school officials that “staff involved in violating students’ rights should face discipline.” It also recommended “remedial steps,” including a potential formal apology to the disciplined students.

Needless to say, district administrators apparently are moving to modify the policy “to address the protection of the individual’s form of expression,” in the words of the junior high’s principal, Colleen Houglum.

Don’t get me wrong. MCLU executive director Chuck Samuelson and his legal crew generally know their stuff, and I presume that they’re right about the law on this one.

Why did he do it?

But Kim Dahl, Brandt’s mom, discovered a revealing fact when she asked her son why he refused to stand. He had no answer, she told the Star Tribune, adding “he’s just a normal 13-year-old.”

She probably is right. Thirteen-year-olds typically like nothing better than to grab the limelight and thumb their noses at authority.

In his letter, Samuelson had some advice for chastened Dilworth school administrators: “This issue represents a classic ‘teachable moment’ where the school can help to instill the values of good citizenship by modeling respect for the U.S. Constitution and the rights and values that our flag represents.”

A jab at administrators

I suspect, however, that some Dilworth students may learn a different lesson from their buddies’ flirtation with “rights” and the ACLU.

Civics? Constitutional law? More likely, these kids will see that school administrators — the bane of a 13-year-old’s existence — can be brought to heel, and that it feels awfully darn good.

For many Dilworth students, the incident may reinforce a message that our “me first” culture peddles constantly. It’s this: You — and your whims and desires — are the center of the universe. Life is about “asserting” and “expressing” yourself, with no need to consult others’ wishes or think about anything larger than yourself.

Who will teach our kids another, far less appealing lesson? It’s this: You have rights, but you also have responsibilities. These include controlling your desires, being courteous to others and respecting authority. The law does not compel you to pledge allegiance to the American flag or to stand while others do. But simple respect should prompt you to honor those who bled and died for that flag, so that kids like you can sit in an eighth-grade class in Dilworth in the freest and most prosperous nation in history.

Fewer and fewer adults try to teach such lessons these days. But kids need to learn them if our democracy is to continue to flourish.

Today the idea that individual rights trump every other consideration dominates our public square. With its one-dimensional focus, such “rights talk” impoverishes our conversation about what good citizenship requires, and what kind of society we want to be.

‘Rights talk’ wasn’t enough

Kim Dahl wasn’t satisfied with “rights talk.” In a letter to the Star Tribune on Tuesday, she described how she and her son had “a very thoughtful conversation about why people stand for the Pledge of Allegiance and the national anthem.” Now that Brandt understands this, he has decided to stand for the pledge.

Here’s what I suggest for the kids of Dilworth junior high, so they too can understand. After school officials issue their ACLU-mandated apology, take out a book and read about the shoeless Revolutionary War soldiers who endured a frigid Valley Forge winter to fight for the American flag — and for your freedom. Then invite in some veterans to tell you what they did for that flag on Omaha Beach or at the Battle of the Bulge.

Let the lesson sink in

Follow up with a visit from some students’ grandparents, who can talk about the sacrifices they’ve made to keep the family farm going. Finally, listen to some parents who can describe what it’s like to work two jobs so they can put something by for your college education.

You, students of Dilworth, are the fortunate recipients of these gifts, and the heirs of America’s experiment in ordered liberty.

What are you going to contribute to keep it going?

The ACLU: Missing in Action in Today’s Free Speech Wars

Tuesday, June 12th, 2007

In 1978, the ACLU won a spot in the free speech hall of fame when it defended neo-Nazis’ right to march in Skokie, Illinois — home to many Holocaust survivors. The organization’s action managed to offend just about everyone: Jews, non-Jews, Republicans and Democrats.

The Skokie incident was no aberration. Throughout its history, the ACLU has often pursued its single-minded devotion to free-speech principles regardless of left/right political implications.

But that’s changing, according to civil libertarian Wendy Kaminer, writing recently in the Wall Street Journal. In the most visible free speech controversies of our day” messages on high school students’ t-shirts, the Danish Muhammad cartoons, the proliferation of “hate speech” codes ““ the ACLU is abandoning non-partisan advocacy. It’s becoming just another liberal advocacy group, says Kaminer.

For example, the ACLU trumpets its legal work on behalf of students wearing pro-gay t-shirts to high school. Yet it turns a blind eye when schools attempt to censor or discipline students who wear anti-gay t-shirts, says Kaminer. When U.S. newspapers refused to reprint the Muhammad cartoons — cravenly caving to fears of retaliation, yet hypocritically denying this fact –”“ the ACLU was silent.

Now, the ACLU appears to be embracing the concept of “hate speech” ““- the dangerously illiberal notion that speech is acceptable only so long as it does not “offend” minorities. Hate speech codes give “privileged” groups the right to censor speech that they don’t like. Such codes stifle the robust exchange of views on controversial topics, and are vague and arbitrary in enforcement. The consequences of violation are grave ““ you can get tossed out of college, lose your job or worse.

Issues like these represent the front lines in the contemporary battle over whether the First Amendment continues to mean what it says. But the ACLU is missing in action.

Katherine Kersten writes a weekly column for the Star Tribune's Sunday Opinion Exchange section. The column covers a broad range of topics reflecting her experiences and interests.

In this blog, she will address many of the same issues, albeit in quicker, less formal fashion, along with pointing readers to other sources of interesting online commentary and coverage.