2
   

Big Girls should take the stairs NOT the elevator

 
 
timberlandko
 
  1  
Reply Thu 9 Dec, 2004 08:56 am
CdK wrote:
timber wrote:


Agreed. However, consider TINKER v. DES MOINES SCHOOL DIST., 393 U.S. 503 (1969), cited in Justice Marshall's dissent to BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675 (1986)



Teh cases you reference don't contain anything that supports the notion that the case being discussed here is an infringement of free speech.


Didn't say it did. Rather the contrary, actually. I was agreeing with you, and pointing to an entirely different concept illustrative of that.

CdK wrote:
timber wrote:


Perhaps it is mostly a matter of perspective.



Indeed. Informed perspective versus uinformed perspective. :wink:


Indeed. :wink:
0 Replies
 
OCCOM BILL
 
  1  
Reply Thu 9 Dec, 2004 09:16 am
Craven de Kere wrote:
OCCOM BILL wrote:
Dude, I don't see how your reference to a SC opinion about "obscene, profane language or gestures" in front of 14 year-old high school students has any bearing on a college dorm. Did you cite the wrong case? If not, what do you see as similar enough to make that opinion relevant?


It's a pretty simple legal concept that I thought you would get without what feels like a patronizing explanation.

The case I brought your attention to is a landmark case establishing a precendent that persists to this day to the effect that a school, even if public (if it is private then there is even less of a case to make for free speech), can punish its students without infringing on free speech.

Free speech has absolutely nothing to do with this case, and the case I reference illustrates what happens when a much stronger such case is taken to court.
In order for an SC opinion to be considered relevant in court there would need to be sufficient similarities in scope, and I don't believe such similarities exist between these two cases. Shouting vulgar expletives to minors in a high school setting is NOT on par with posting unpopular humor or opinion in a college setting.

IMO, the boy was not punished for hanging a sign on school property; he was punished for an unpopular expression of opinion... and judging by the ill-fitting punishment an argument could be made that the school had no precedent to use as a guideline, which resulted in a punishment that in no way fit the offense. This theory is fortified by the report that after a Free-Speech advocacy group got involved, the school rescinded their decision.

I understand your position that the SC ruling recognizes the schools rights to set and enforce standards... but that doesn't appear to be the issue here. In this case, the school persecuted a student to a ridiculous measure apparently because his expression was deemed highly unpopular. Unlike BETHEL, there were no minors, no lewd speech, no assembly, no sexual innuendo no accurately applicable rules violated and from what we have to go on; no warnings given whatsoever.

I do not believe that even the concurring members of the SC would share your opinion that:
Craven de Kere wrote:
This case has nothing whatsoever to do with free speech.

By comparison, the BETHEL opinion you quoted was a simple slam-dunk and even then the justices explained at some length why the School was justified in impinging upon Fraser's First Amendment right to express himself freely. The criteria they cited, is not present in this case nor are the conditions comparable.

While the school certainly does have some authority to limit expression, they nonetheless have a 14th Amendment obligation to inform a student how and why his First Amendment rights are restricted before punishing him to this degree for exercising his right to free speech.



Craven de Kere wrote:
A school can punish their students according to their standards and as long as it is not a standard set by the government it is perfectly legal.

Furthermore the property where said expression occured is not governed by free speech.

The school has no more obligation to allow the student his act than I do in allowing someone to paint graffiti on my property.
Nonsense. This Strawman doesn't stand up to the opinion you cited. In BETHEL, an integral factor in the decision (and the dissenting opinion, btw) was whether proper notice had been given that the offense could subject him to sanctions. Barring such notice, the school has no right to impinge on his First Amendment Rights whatsoever.

The opinion in BETHEL does NOT give schools the right to run roughshod over First Amendment rights. Before said rights can be infringed upon; there still needs to be a reason and notice given.

Craven de Kere wrote:
The school has no more obligation to allow the student to live in the dorm than I do in allowing anyone to live in my home.
That's a pretty silly statement Craven.

Craven de Kere wrote:
Their reaction may well be unjustified but a very elementary understanding of this country's laws can help one understand that it has nothing to do with free speech.
LOL. In your desire to suggest I have not even a very elementary understanding of this country's laws, you repeat this ridiculous assertion. The very case you cited to back your absurd claim is almost entirely about Free Speech… and the opinion wasn't even unanimous. Idea Even if BETHEL was a fitting precedent for the case at hand, that would do nothing fortify your ridiculous assertion that:
Craven de Kere wrote:
This case has nothing whatsoever to do with free speech.


Craven de Kere wrote:
timberlandko wrote:

Perhaps it is mostly a matter of perspective.


Indeed. Informed perspective versus uinformed perspective. ;-)
Rolling Eyes
Craven de Kere wrote:
It's a pretty simple legal concept that I thought you would get without what feels like a patronizing explanation.
Laughing Your non-patronizing techniques could use some work. :wink:
0 Replies
 
joefromchicago
 
  1  
Reply Thu 9 Dec, 2004 11:15 am
Acquiunk wrote:
The University of Michigan has an interesting take on the issue

From their analysis I suspect this is not an example of out of control political correctness by a CYA move on the part of UNH bureaucrats in the face of a vague confusing and ill articulated harassment policy.


Incidentally, Garneau has been let back into his dorm

http://www.michiganreview.com/article.php?id=1438

The "Michigan Review" is a right-wing student magazine at the University of Michigan, and its articles should be considered in that light. It is not the official student newspaper, nor does it speak for the University.
0 Replies
 
timberlandko
 
  1  
Reply Thu 9 Dec, 2004 11:20 am
Love your new avatar, Joe - have ya got the Red Ryder that goes with it?
0 Replies
 
timberlandko
 
  1  
Reply Thu 9 Dec, 2004 11:26 am
O'Bill wrote:
While the school certainly does have some authority to limit expression, they nonetheless have a 14th Amendment obligation to inform a student how and why his First Amendment rights are restricted before punishing him to this degree for exercising his right to free speech.


Pretty much what I was gettin' at HERE
0 Replies
 
OCCOM BILL
 
  1  
Reply Thu 9 Dec, 2004 01:09 pm
timberlandko wrote:
O'Bill wrote:
While the school certainly does have some authority to limit expression, they nonetheless have a 14th Amendment obligation to inform a student how and why his First Amendment rights are restricted before punishing him to this degree for exercising his right to free speech.


Pretty much what I was gettin' at HERE


I hear ya Timber. The First Amendment demands recognition here as Free Speech is the default position until such time as a rule is made to restrict it. Absent some reasonably defined rule of restriction; it remains unconstitutional to persecute the student for exercising his constitutional right to free speech. In BETHEL, The District Court recognized this fact when they held:

The District Court wrote:
The District Court held that the school's sanctions violated respondent's right to freedom of speech under the First Amendment to the United States Constitution, that the school's disruptive-conduct rule is unconstitutionally vague and overbroad, and that the removal of respondent's name from the graduation speaker's list violated the Due Process Clause of the Fourteenth Amendment because the disciplinary rule makes no mention of such removal as a possible sanction.


The Court of Appeals for the Ninth Circuit affirmed the judgment of the District Court.

Ultimately, the majority decision of the SC in BETHEL found that the obligations under the 14th amendment were satisfied both by written rules and by several teacher warnings and therefore no First Amendment Violation had taken place. Obviously, failure to meet the obligations under the 14th Amendment then, would result in a First Amendment Violation.

The Supreme Court acknowledged in Tinker v. Des Moines Independent Community School Dist., supra, that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." (as Craven suggested when he wrote "Furthermore the property where said expression occurred is not governed by free speech.").

Personally, I don't think the BETHEL ruling has any relevance in this matter whatsoever because it was directed specifically at children and therefore allowed for far more stringent regulation, in recognition of teaching socially acceptable manners. Consider Burger's inclusion of this paragraph:

Quote:
The First Amendment guarantees wide freedom in matters of adult public discourse. A sharply divided Court upheld the right to express an antidraft viewpoint in a public place, albeit in terms highly offensive to most citizens. See Cohen v. California, 403 U.S. 15 (1971). It does not follow, however, that simply because the use of an offensive form of expression may not be prohibited to adults making what the speaker considers a political point, the same latitude must be permitted to children in a public school. In New Jersey v. T. L. O., 469 U.S. 325 (1985), we reaffirmed that the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings. As cogently expressed by Judge Newman, "the First Amendment gives a high school student the classroom right to wear Tinker's armband, but not Cohen's jacket [Cohen's jacket said "**** the Draft"].


The reason I had asked Craven if he had cited the right case, is that BETHEL demonstrates the opposite of his claim that this has "nothing to do with free speech." As near as I can figure, the one thing BETHEL does do for this case; is demonstrate that it has everything to do with the Freedom of Speech. <shrugs>

What's your take, Joe?
0 Replies
 
joefromchicago
 
  1  
Reply Thu 9 Dec, 2004 04:04 pm
OCCOM BILL wrote:
What's your take, Joe?

Lo, these many years ago, back when I was but a fresh-faced collegian myself, I had occasion (albeit briefly) to live in a high-rise dormitory. And so I can condole with the UNH student here. I too waited for elevators that seemingly never arrived, and watched with rising gorge as fellow residents blithely kidnapped those elevators for a one-story joy ride. Truly, I feel Garneau's pain.

Undoubtedly, it was with this sense of frustration that he posted the flyer in question:
http://www.thefire.org/images/5005_196.jpg
And indeed, most of the residents living below the sixth floor of Stoke Hall are women, so Garneau seems to have directed his admonishment at the right target population.

Although his flyer was addressed to a single sex, his rebuke was hardly sexual in nature. At most, it can be considered offensive to the lazy and overweight rather than to women in general. Frankly, I find it more offensive to the literate than to anyone else, and it certainly does no credit to the repute of UNH that a student could gain sophomore standing while writing sentences such as: "If u live below the 6th floor takes the stairs….Not only will u feel better about yourself but you will also be saving us time and wont be sore on the eyes" [sic!]. This is what passes for an educated student at UNH these days? O tempore, o mores!

The UNH student code of conduct, which sets forth both the guidelines for student behavior and the procedures and penalties for breaches of those guidelines, says surprisingly little about sexual harassment. Under Art. III, sec. B, subsec. 3(d), a student is prohibited from engaging in "harassment." What this means, however, is unclear. It's true that Art. IV, sec. D, subsec. 7(f) mandates a student may be expelled from a dorm if he is found guilty of "[m]isconduct that harms others because of their particular race, religion, gender, or sexual orientation," but this is hardly more enlightening than the previous prohibition against "harassment."

Of some interest is the statement put forth by the Sexual Harassment and Rape Prevention Program (SHARPP) at UNH, which defines sexual harassment as: "any unwanted, unwelcome attention to someone's body, sexuality, or sexual identity." I suppose if there is any definitive statement on the issue of sexual harassment at UNH, this is as close as one might get, and it is satisfactory for our purposes.

The question, then, is whether Garneau's flyer constituted "unwanted, unwelcome attention to anyone's body, sexuality, or sexual identity." Now, calling attention to the flabbiness of Stoke Hall co-eds may indeed have crossed the line into "unwanted and unwelcome attention to anyone's body," although it's not at all clear why this should be considered sexual attention. After all, if Garneau's crime is of sexual harassment, there must be some sexual element present. And I don't think it's enough simply to point out that Garneau directed his remarks to women: if that were the criterion, then a statement that "all the men in Stoke Hall are slobs" would be sexual harassment as well, and that seems rather farfetched.

So, what do we have here? We have a policy that forbids "harassment" without really defining the term. We have another policy which does not allow anyone to be expelled from a dorm unless they are found to have engaged in "misconduct that harms others because of their particular race, religion, gender, or sexual orientation," even though, in this case, there has apparently been no finding of any harm. And we have a sexual harassment policy that, it seems, forbids saying anything bad about either men in general or women in general.

I'm not sure we have to reach the First Amendment issue in this case, since it strikes me that Garneau's expulsion violated his rights under the UNH student code of conduct. Furthermore, if there was a deprivation of constitutional rights, it was a deprivation of his Fourteenth Amendment rights to due process. I would, therefore, recommend that he be punished for violating the dorm policy regarding the posting of unauthorized flyers and sentenced to a remedial writing program.
0 Replies
 
joefromchicago
 
  1  
Reply Thu 9 Dec, 2004 04:28 pm
timberlandko wrote:
Love your new avatar, Joe - have ya got the Red Ryder that goes with it?

You mean an official Red Ryder, carbine action, two-hundred shot range model air rifle with the compass in the stock and this thing that tells time?

Nope Crying or Very sad
0 Replies
 
timberlandko
 
  1  
Reply Thu 9 Dec, 2004 04:59 pm
Had me one o' them once:
http://imagescommerce.bcentral.com/MerchantFiles/4676842/802504/953D.jpg

She sure was a Daisy!



That was a real good time to be a kid.
0 Replies
 
OCCOM BILL
 
  1  
Reply Thu 9 Dec, 2004 05:42 pm
As I figured, but far more complete. Thanks Joe. Having now seen the offending flyer, I am more amazed than ever. That is truly ridiculous.
0 Replies
 
OCCOM BILL
 
  1  
Reply Thu 9 Dec, 2004 06:00 pm
One thing though...
joefromchicago wrote:
Furthermore, if there was a deprivation of constitutional rights, it was a deprivation of his Fourteenth Amendment rights to due process. I would, therefore, recommend that he be punished for violating the dorm policy regarding the posting of unauthorized flyers and sentenced to a remedial writing program.
Obviously, the punishment wasn't the standard punishment for hanging a flyer. Now, if his Fourteenth Amendment rights to due process were violated; that would be because he was not informed that his First Amendment right to free speech had been restricted with this "no fat-jokes clause", right? Aren't the First and Fourteenth joined at the hip in this case?... Much like Judge Stevens suggested it should have been in BETHEL when he wrote:
Supreme Court Justice Stevens wrote:
It does seem to me, however, that if a student is to be punished for using offensive speech, he is entitled to fair notice of the scope of the prohibition and the consequences of its violation. The interest in free speech protected by the First Amendment and the interest in fair procedure protected by the Due Process Clause of the Fourteenth Amendment combine to require this conclusion.
0 Replies
 
nimh
 
  1  
Reply Thu 9 Dec, 2004 06:03 pm
Great post, Joe Razz

The kind that makes one think there's nothing further to add, really.
0 Replies
 
timberlandko
 
  1  
Reply Thu 9 Dec, 2004 06:10 pm
nimh wrote:
Great post, Joe Razz

The kind that makes one think there's nothing further to add, really.


Yeah, great job, Joe. To add to nimh's "nothing further to add" sentiment, I would submit there wasn't much, if anything, on which to base the initiating of the entire flap in the first place.
0 Replies
 
dyslexia
 
  1  
Reply Thu 9 Dec, 2004 06:13 pm
Isn't this a "big-flap" because Fox News made it a big flap (after the fact)?
0 Replies
 
joefromchicago
 
  1  
Reply Thu 9 Dec, 2004 06:39 pm
OCCOM BILL wrote:
Obviously, the punishment wasn't the standard punishment for hanging a flyer. Now, if his Fourteenth Amendment rights to due process were violated; that would be because he was not informed that his First Amendment right to free speech had been restricted with this "no fat-jokes clause", right? Aren't the First and Fourteenth joined at the hip in this case?...

Sorta'.

It is a fundamental requirement of due process that a person must have fair notice of a law before being charged with breaking it (that's what Stevens meant when he said a student "is entitled to fair notice of the scope of the prohibition and the consequences of its violation"). In this case, I don't see how Garneau could have known what "sexual harassment" or "sexual misconduct" even was, let alone how he could have conformed his actions to the university's rules. Now, in this particular instance, it just so happened that Garneau contravened the rules with a speech act, but I think things would have likely been the same if his action was not speech-related.
0 Replies
 
joefromchicago
 
  1  
Reply Thu 9 Dec, 2004 06:43 pm
nimh wrote:
Great post, Joe Razz

The kind that makes one think there's nothing further to add, really.

Q.E.D.
0 Replies
 
OCCOM BILL
 
  1  
Reply Thu 9 Dec, 2004 07:11 pm
dyslexia wrote:
Isn't this a "big-flap" because Fox News made it a big flap (after the fact)?
Lol Dys, you too? This absurdity cannot be blamed on the messenger.

[URL=http://www.able2know.com/forums/viewtopic.php?p=1056309#1056309][u][i]A couple pages back[/i][/u][/URL], nimh wrote:
Piffka wrote:
And we've all been taken in because the outcome was known before this was placed on Fox News as though it was breathless, must-be-read and commented-on news.

What are you talking about? Joa may have posted this story here on A2K just this week, but the Fox story she linked in was dated Monday, November 01, 2004. <shrugs>


Thanks again Joe. (Now I know what Q.E.D. means too! :wink:)
0 Replies
 
joefromchicago
 
  1  
Reply Fri 10 Dec, 2004 10:09 am
OCCOM BILL wrote:
Thanks again Joe. (Now I know what Q.E.D. means too! :wink:)

You have learned much, grasshopper.
0 Replies
 
Piffka
 
  1  
Reply Fri 10 Dec, 2004 11:29 am
timberlandko wrote:
nimh wrote:
Great post, Joe Razz

The kind that makes one think there's nothing further to add, really.


Yeah, great job, Joe. To add to nimh's "nothing further to add" sentiment, I would submit there wasn't much, if anything, on which to base the initiating of the entire flap in the first place.


Except that the University is obligated to look into something if a complaint is made. Look it up, it's in their rules.

Then the guy lied when questioned.

And, as I said, the point is moot unless somebody here thinks he has a "case" for suing the school. I'd say, No.

Btw -- he's on probation until May 2006 -- when he is likely to graduate, which is why I made a big assumption, based on years of dealing with young miscreants, that he has been in trouble before.
0 Replies
 
OCCOM BILL
 
  1  
Reply Fri 10 Dec, 2004 12:06 pm
So it isn't the offense so much as the fact that he lied about it, eh?

Remind you of anyone we know?







http://www.snakeysfreestuff.com/pictures/pictures/bill_clinton/campdavid.jpg
0 Replies
 
 

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