Tuesday, October 3, 2017

Louisiana Parish's Ignorance of Constitution May Cost Taxpayers in Legal Fees

by Nomad


Taking a Stand in Louisiana

Last week, a Louisiana parish school district took a controversial step to support President Trump and his stand against the NFL players who refused to honor the American flag.  

Superintendent Scott Smith of Bossier Parish notified 34 schools that standing during the national anthem prior to sporting events would be mandatory for all student-athletes. Smith said he would support decisions taken by school principals to make sure athletes stand.
According to his statement, it would be up to individual schools to discipline any defectors. Potential punishments range from “extra running to a one-game suspension.” 

To make this policy clear, a letter to athletes and parents describing the school’s rules during playing of the national anthem. Smith said:
"In Bossier Parish, we believe when a student chooses to join and participate on a team, the players and coaches should stand when our National Anthem is played in a show of respect. It is a choice for students to participate in extracurricular activities, not a right, and we at Bossier Schools feel strongly that our teams and organizations should stand in unity to honor our nation's military and veterans."
That might have been music to Trump's furry ears, but it, as we will see, extremely misguided.

Almost immediately The American Civil Liberties Union (ACLU) responded, declaring that it could challenge the Bossier Parish statement. And they are very likely to win any legal action, costing the Louisiana parish quite of bit in court fees. That's money that could be better spent on students and facilities. Funding is going to be tight even without that added burden.
Especially since last Mayb. That's when the Louisiana legislature approved a Republican-written state budget that would reduce spending through cuts in among other things, elementary and secondary education.

Anybody even casually acquainted with US Constitutional law would tell you that Smith's decision could very well be a violation of the students' free speech.  If so, then the state of Louisiana is in for trouble. 
Based on past landmark decisions dating back to the 1940s, the Supreme Court has made crystal clear its opinion on forced displays of national pride in public schools.  Free speech in the form of peaceful resistance to national symbolism would appear to be constitutionally protected.

The fascinating history behind those landmark SCOTUS ruling is worth a closer look.


National Unity and National Security

In the 1940 case of Minersville School District v. Gobitis, the Supreme Court had ruled that public schools could compel students—in this case, Jehovah's Witnesses—to salute the American Flag and recite the Pledge of Allegiance.
The majority of the Supreme Court justices declared that compelling students to say the pledge was not a violation of religious freedom and therefore, a totally legitimate demand.

The basics of the story were fairly straightforward. According to the New York Times:
On Oct. 22, 1935, Lillian’s brother William Gobitas, a fifth grader, refused to say the pledge at his public school in Minersville, Pa. The next day, Lillian did the same thing. The town school board responded by passing a resolution calling refusal to recite the pledge an act of insubordination. It then expelled the Gobitas children.
Gobitas family, backed by the ACLU, had objected to the school district's decision on religious grounds. It was, they argued, a violation of the tenets of their faith to idolize a symbol. The school's decision- was challenged in court and, by 1940, the appeal eventually made its way to the high court.

Justice Felix Frankfurter, in his majority opinion, rejected the idea that the freedom to follow articles of one's faith or of one's conscience under the First Amendment was unlimited. Demonstrations of fidelity to the State were more important than the rights of the individual and their rights of free expression. So the courts declared.

In the minds of the justices, allowing children to forgo saluting the flag or reciting the Pledge of Allegiance, (even in the name of their religious convictions), would weaken the effect of the collective patriotic exercise. It was a challenge to national unity which they said was the basis of national security.

And thus, when children do not pay respect to the flag or other symbols, even in the name of religious liberty, this was a threat to nation. 
The mere possession of moral or religious convictions does not relieve the citizen from the discharge of political responsibilities.”
One of those responsibilities, the court decided, was paying due respect to national symbols. Patriotism for the sake of national cohesion, even when forced upon children, required legal protection, said the courts.
It was not a unanimous vote, however. Justice Harlan Stone in his dissent wrote:
The guarantees of civil liberty are but guarantees of freedom of the human mind and spirit and of reasonable freedom and opportunity to express them...The very essence of the liberty which they guarantee is the freedom of the individual from compulsion as to what he shall think and what he shall say...
Dissenting opinions notwithstanding, this decision seemed to clarify the position of the high court once and for all. The state indeed had the power to compel students to stand, to salute and to sing the national anthem. They could likewise be compelled to recite the Pledge of Allegiance, under threat of punishment.

For red-blooded flag-waving Americans, the court decision was extremely popular. However, the consequences of this decision were unexpectedly grim. It almost immediately led to an unleashing of mob violence under the banner of nationalism.

Open Season on Liberty

In the wake of the court's ruling, it was, as one reporter at the time called it, "open season on Jehovah’s Witnesses.
That was no exaggeration. Except for the race riots of 1919, which pitted whites against blacks, the US had not seen such violence aimed at a minority.

The Jehovah's Witnesses' hall in Kennebunk, Maine was burnt down. Across the nation, reports came in of vicious attacks and harassment against members of the Jehovah Witnesses.
In West Virginia, Witnesses were forced to drink castor oil and when a reporter asked a local sheriff why this religious minority was being persecuted, he was reportedly told "They're traitors; the Supreme Court says so. Ain't you heard?"

In Wyoming, angry groups brutally beat five Witnesses in one town and in another town, mobs tarred and feathered victims. In Oregon, members of the American Legion reportedly besieged the Witness' meeting place, breaking windows, throwing in stink bombs, ammonia and burning kerosene rags.

The cars of Witnesses' were vandalized and many were overturned. The mob, which reached 1,000 at its peak was eventually dispersed by the state militia.

All in all, nearly 1,500 Witnesses were physically attacked in more than 300 communities nationwide. First Lady Eleanor Roosevelt actually stepped forward and appealed for tolerance in her daily newspaper column. 
Something curious is happening to us in this country and I think it is time we stopped and took stock of ourselves. ... Must we drag people out of their homes to force them to do something which is in opposition to their religion?
She was not alone. Editorials in 170 newspapers strongly defended the Witnesses’ rights.

Reversal for the Right Reasons

But here's the twist in this story.
In 1943, only three years later, in the case of West Virginia State Board of Education v. Barnette, the court by a 6-3 opinion reversed the earlier decision.
And what was that updated decision?
The Free Speech Clause of the First Amendment to the United States Constitution protected students from being forced to salute the American flag and say the Pledge of Allegiance in public school.  
Free speech and constitutional rights, wrote Justice Robert Jackson, in general terms had to be placed "beyond the reach of majorities and officials." 

Otherwise the definition of free speech, in the face of "compulsory unification of opinion," had no meaning at all.
The Court stated:
"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein."
In merely three years, the court had interpreted the Constitution in two radically different ways.  Such reversals are rare. And they should be. Flipping back and forth on important issues damages the authority of the court. 

So what could account for this a startlingly rapid judicial about-face? One possible reason could that the views on majority-minority rights had undergone some radical changes.

Between 1940 and 1943, the concept of the inherent powers of the State had undergone a drastic rethinking. Each week in newsreels, Americans had seen intelligent and proud  German citizens being indoctrinated to accept the unacceptable in the name of fanatic nationalism. The Nazis had declared illegal the right to dissent. The conscience of the individual could be crushed by the repression of brutal fascist regime. All that counted was loyalty to the State.  

Backed by a cooperative press and a ruthless leader, Fervent nationalism was being skillfully used as a weapon against all dissent and all minorities.

The US Supreme Court had no alternative but to overturn the 1940 decision demanding all citizens pay homage to nationalist symbols at the cost of individual liberty. After all, WWII wasn't simply a battle between competing nationalisms. 

Ignorance of this remarkable story- a story of how the Supreme Court found its way back to the original principles of the US Constitution- will very likely cost the Louisiana school district.