Friday, November 10, 2017

To Kneel or Not to Kneel

I apologize the delay since my most recent post. I’ve had … reasons. And writing this post took … way too long.

Before I discuss whether I think it is appropriate or acceptable for athletes to kneel rather than stand during the playing of the National Anthem prior to a game, I think it’s worth at least asking why we play the National Anthem prior to games. We seem to do so before virtually all sporting events (is the National Anthem played before golf tournaments?), but we don’t do so before many other large public gatherings. If I go to a high school football game on Friday night, there will be a rendition of the National Anthem, but at the high school choir performance the night before, there was neither a recital of the National Anthem nor a presentation of the flag. And if, the next night, I go to a theater performance, a TED Talk, or a beer festival in a local park, it is unlikely that there will be a recital of the National Anthem before those events. Youth soccer and baseball games don’t usually include a rendition of the National Anthem unless organized by a school. Similarly, before a group of friends gather to play a game of softball, ultimate Frisbee, flag football, HORSE, tennis, or bocce, they don’t usually stop and sing the National Anthem first. So why do we play and/or sing the National Anthem before some sporting events?* I don’t have an answer to that question but I do think that, whatever the answer may be, is at least worth considering when reflecting on the general question at hand.

It is also worth considering that playing the National Anthem before a sporting is not a universal behavior. It is my understanding that very few countries include a rendition of their respective national anthems prior to sporting events. An English friend once remarked that Europeans were often puzzled by the American practice of playing the National Anthem. Think for a moment about the Olympics, in which a national anthem is played after the event to honor the winning nation. It might be an interesting exercise to see which other countries do and do not routinely play their national anthems at public gatherings like sporting events. I’d be willing to bet (though not much…) that democratic nations (other than the United States) are much less likely to do so than totalitarian nations in which coercive patriotism (or nationalism) helps keep the ruling elite in power.

So, then, on to the propriety of an athlete protesting during the National Anthem. Sadly, I think the answer is actually much more nuanced than a simple yes/no answer, in part because the manner of protest can differ and thus the propriety may differ as well. For example, protest in the form of taking a knee is different than protest by remaining seated, turning one’s back to the flag, holding up a fist, making some other gesture or gesticulation (holding up a middle finger, for example), adding a verbal component to the protest, or other similar actions (or inactions). And, it depends on the context and the venue. Not all protests are the same and, thus, they should not necessarily be treated the same. A protest before the game is different than a protest during the game; a quiet, peaceful protest is different than a loud or violent protest; and a protest that only involves others to the extent that they become aware of, see, or hear the protest is different from one which does directly affect others (such as by physical contact, preventing them from using a public facility, preventing a speaker from speaking or game from being played, or the like). Unfortunately, when patriotism (or a perceived hostility to patriotism) becomes part of the discussion — not to mention issues like race — then it seems that the sort of nuance and careful consideration truly necessary to a proper discussion and examination of the issue becomes … unlikely.

For what it’s worth, and to eliminate the suspense: I think that … nah. You’ll just have to read to the end.

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When American soldiers stormed the beaches at Normandy or assaulted caves in Tora Bora, were they doing so for the flag, or were they doing so because of what the flag represents? Was their oath to defend the flag and National Anthem or the Constitution for which they stand? Maybe in our current civics-diminished culture, those differences are too subtle for some people to understand. To those who don’t readily recognize the differences, I’d strongly suggest that you put down whatever you’re doing and go read James Clavell’s short work The Children’s Story. I’ll wait.

Anyway, it seems to me that our soldiers fight — and die — for the ideal of America; they make the greatest sacrifice for the notion that all men (and women) are created equal and treated so under the law, that people are free to express their thoughts and their religious beliefs without fear, and that we are a nation of laws where no man (or woman) is above the call of justice. The flag and the National Anthem are mere symbols of that ideal, but they themselves are not the ideal and they are not what we seek to honor. Rather, we seek to honor the ideal that is America (or what American should be), that is the core of what we mean by American exceptionalism, and that sets America apart from so much of the rest of the world. Thus, when we stand for the National Anthem, we’re not honoring a song or a piece of cloth; we’re honoring what those things stand for. While I’m not a Christian — and I suppose my analogy could be off — I think it’s fair to equate honoring the flag instead of the ideal of America with honoring the cross instead of the ideal of Jesus.

Similarly, when people protest, they are (usually) not protesting the flag or the National Anthem; they are not protesting against our soldiers or veterans (Vietnam, perhaps, being the obvious exception). Rather, they are protesting what they perceive as injustice. They are protesting what they perceive as ways in which we as a society have failed to live up to and adhere to the ideals of America for which the flag and National Anthem serve as symbols. They are not protesting to tear down or to destroy; rather they are protesting in order to try to our make country better (Make America Great Again, anybody?), to help bring it closer to the ideal that the flag represents. Those who think that athletes are protesting the flag or veterans simply aren’t listening. Or perhaps they are listening, but the voices that they’re listening to are the ones opposed to the message the athletes are trying to communicate. After all, why spend so much effort discussing and railing against the protest itself and not having a substantive discussion about why athletes are protesting or whether their complaints have any merit. Wouldn’t it be more productive for us to ask whether there is racial injustice, whether young black men (in particular) are treated fairly or unfairly by the police and justice system, and whether these are systemic or isolated problems? And wouldn’t we be furthering the ideals of America if, rather than expending energy arguing about protest, we instead spent that energy trying to achieve the goals of American exceptionalism and the promise of equality?

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Let me address an element of the broader issue of “honor” and “respect” that has not received much attention. At many of the sporting events that I’ve attended, the formulation preceding the playing of the National Anthem goes something like this: “To honor America, please stand and remove your hats”. The precise words may change, but the request is mostly very similar as is the use of the word “honor”. That word is almost always used. Now imagine that you are an observant Jewish man who wears a kippah, an observant Muslim woman who wears a hijab, a Sikh man who wears a dastaar (turban), or any other person who wears a head covering for religious purposes. Or imagine that you’re a cancer survivor wearing a wig or scarf. Now how do you feel when the stadium announcer tells you that to “honor” America you must remove your hat? Do you choose to honor America at the expense of your religious obligations or personal health-related issues? Or do you stand, put your hand over your heart, but leave your head covering in place hoping those around you won’t think that you’re being disrespectful? Is this a choice any of your fellow Americans should be asked to make? For that matter, when and why did we decide that we “honor” America by standing and listening to a song rather than working to achieve the ideals upon which America was based? Or, why do we listen and not all join in the signing?

What about Jehovah’s Witnesses or other religious groups who, as a rule, don’t stand for the National Anthem or Pledge of Allegiance and who have fought, all the way to the United States Supreme Court, for the right not to be forced to stand (more on that at the end of this post). As we argue about the propriety of athletes standing or kneeling, what message are we sending to those who choose not to stand for religious or moral purposes other than protest? Are they “lesser” Americans or not “real” Americans? Are they disrespecting the flag, soldiers, or America? I wonder how those who object to player protests would react to a player who chose not to stand if that choice was based on religious views rather than a protest statement.

And what of a spectator or athlete at a sporting event who is not American? Is the message to that person that he or she should “honor” America by standing or … what? … get out? Go home? Really?

So what about Tim Tebow? I’ll readily acknowledge that I was critical of Tim Tebow taking a knee when he did something good on the field. I was not a fan of what I perceived as a sort of “in your face” Christianity. But there are two points worth making here. First, isn’t it interesting that kneeling is seemingly acceptable if the reason for kneeling is deemed to be acceptable. In other words, because Tebow was kneeling as an expression of faith, many of the same people who criticize players for kneeling during the National Anthem had no problem with Tebow kneeling. But more importantly, Tebow took a knee during the game when he knew the cameras would be on him because of what he did in the game. Compare that to players who are taking a knee before the game, when the cameras aren’t usually focused on players (ordinarily, television coverage only includes the National Anthem prior to Sunday night games and the Super Bowl), and when the cameras do focus on the players, it is because they are kneeling and not because of their efforts on the field. Hmm.

And of course that discussion of Tim Tebow inexorably leads to a discussion of Kim Davis. You remember Kim Davis, don’t you? She was the county clerk in Kentucky who refused to issue marriage licenses to same-sex couples because doing so “violated” her religious beliefs. Many conservatives cheered her, made her into a sort of folk hero for refusing to obey the law that required her to treat all people equally. Let me repeat: She refused to do her job. The football players? Are they refusing to do their jobs? No. Of course not. But the people who made Kim Davis a hero for refusing to recognize the Supreme Court’s decision in favor of marriage equality are criticizing athletes who are peacefully — and without directly harming others — protesting a system that they don’t believe treats all Americans equally. White Christian lady refuses to follow the law and treat people equally? Good. Black athletes protest inequality and the treatment of people of color by the law? Bad. Hmm.

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One person with whom I discussed this issue told me that she disagreed with players kneeling during the National Anthem, not because she disagreed with the subject of their protest, but because she found it to be “impolite”. She had essentially the same response to the cast of Hamilton making a plea to Vice President Pence about equality (alas, while I wrote a post on that episode, I never finished it…). I reminded her that people, especially white people, have been telling African-Americans when and how to protest for years. I reminded her that perhaps the most important element of a protest was a time and place when and where the protest would be visible by others, in particular those with the power to influence decisions and conduct. A protest from your living room couch or a protest in a neighborhood or park not frequented by those to whom the protester needs to address is essentially pointless. A protest needs witnesses in the same way a fire needs oxygen. Taking a knee in front of a banana at the supermarket to protest police brutality just isn’t going to have the impact that the same action will have prior to a televised football game in front of a massive audience. And I reminded her that it was not the function of a protest to make the the listener or viewer comfortable; rather, a sense of discomfort at the protest is precisely what is intended by the protest in hopes that those who are discomforted might, you know, help change things.

Don’t forget that protest is generally conducted by the minority or a group that perceives itself as being treated unfairly or poorly. The majority rarely needs to protest and popular views rarely need protest. A protest by the majority in support of a popular idea isn’t a protest at all; it’s a parade.

Oh, and how many of those who are angered at the protests have affinity for the Tea Party, a group named after perhaps the most famous protest in American history?

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I try (usually…) to avoid so-called “whataboutism” but in this case, I think it’s important to ask why some of those who are so offended by athletes’ decision to kneel rather than stand don’t show similar anger in other situations. Why, for example, have those who are offended by kneeling been silent when, at the end of the National Anthem, fans of the Kansas Chiefs replace “home of the brave” with “home of the Chiefs!” with that last word screamed in such a way that it drowns out “brave” by any who may be singing along with the National Anthem? In my experience at NFL games, when this happens, most people just laugh. But how is that conduct any less “disrespectful” than a player who kneels quietly? (And that query is without even touching on the idea that the Chiefs are named for the Native Americans who were displaced by the westward expanding United States; so isn’t replacing “brave” by “Chiefs” much more disrespectful of the National Anthem and flag or even of the ideal of America?)

I don’t know about you, but I’d love to see just how many of the people who are angry about African-American athletes “disrespecting” the flag have a Confederate flag on their pickup truck.

More interestingly and importantly, though, is the question of why people who are angry enough to burn their jerseys and season tickets aren’t just as angry about unarmed, innocent people, including children, being killed by police? What is it about the protest action by players that engenders such visceral anger and even hatred while the basis for the protest is barely recognized by many?  I can’t help feel that for some — certainly not all, but some — their is a racist component to anger on one hand and lack of empathy or corresponding anger on the other.

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I want to address two further arguments that are being raised with regard to the issue of kneeling during the National Anthem: The First Amendment and the United States Flag Code. Let me be quite clear about one thing: This is not a First Amendment issue. Well, at least not directly, but see the huge caveats that I’ll discuss below. Yes, the First Amendment protects a person’s right to speech and that right includes the right to protest. Thus, the decision to take a knee is protected speech. But that doesn’t matter because the First Amendment addresses prohibitions or limitations on speech by the government. Here, the question is whether the NFL or an individual team should prohibit a player from kneeling or punish a player who does so. And that is not a First Amendment question.

The government cannot make people stand, salute, put their hand on their heart, remove their hat, or sing the National Anthem. Each of those requirements would violate the First Amendment. And the government cannot prohibit a person from kneeling during the National Anthem, either, as that would also violate the First Amendment. But an employer can do those things within the scope of the employer’s relationship with the employee and in the workplace. Now, I’ll admit that things can get a bit fuzzy around the edges (i.e., imagine an employer who says that employees can gather in the company break room for Christian prayer, but only Christian prayer, or an employer who tells employees that they must prove that they voted for candidate X or contributed a portion of their salary to charity Y), but as a general rule, so long as the employer is not engaging in certain forms of prohibited discriminatory action, the employer can adopt workplace rules that might include standing for the National Anthem if it is played in the workplace.

Now with all of that being said, there are several caveats that I’d like to offer to my general statement that this isn’t a First Amendment issue. First, I think it’s important to recognize that prior to 2009, the NFL players stayed in the locker room until after the National Anthem. Why the change? As I understand it, the United States military paid the NFL to add patriotic elements prior to games. I’m not sure what I think of the idea of paid patriotism. But more importantly, once you insert the government into the situation, then the analysis may change. Employers (the NFL and its teams) are now asking their employees (the players) to stand for the National Anthem at the paid behest of the government. That seems to be a dramatically different situation than an employer making a decision and acting on its own; the influence of the government (especially the military) cannot easily be ignored. To this point, it is probably worth adding that most of the teams play in stadiums owned and/or financed by the government. Though I haven’t researched the issue, I believe that there is some jurisprudence that limits an employer’s rights with regard to employee speech when the employer is relying upon government facilities, largesse, or funding.

Second, we can’t ignore President Trump’s decision to insert himself into this mess. Had he limited his remarks to “I disagree with the decision to kneel” or even “I think that it’s disrespectful for the players to kneel”, then the situation would simply be that of a government official offering an opinion on a matter of public debate and discussion. But Trump went beyond. He, in essence, told the NFL owners to fire players who kneeled. When the President suggests that a particular citizen or business take a certain action, that is not easy to ignore. And that form of governmental interference in business issues may bring First Amendment analysis into play.

For what it’s worth, I didn’t think that Trump violated the law with his statements suggesting or demanding that team owners fire players. Several complaints have been lodged on the basis of 18 U.S.C. § 227, but that statute requires that a government official acts “with the intent to influence … an employment decision or employment practice of any private entity” and does so “solely on the basis of partisan political affiliation” and that in so acting, the official “(1) takes or withholds, or offers or threatens to take or withhold, an official act, or (2) influences, or offers or threatens to influence, the official act of another”. Had Trump followed up his statement with any sort of threat to withhold government action or to take certain action, he might have met the second part of the statute’s requirements, but the requirement of “solely on the basis of partisan political affiliation” could be difficult to prove.

Of course after I wrote the preceding two paragraphs, Trump went even further, when he threatened to revoke the tax exempt status of the NFL (“change tax law!”) and tied that proposal to “disrespecting our Anthem, Flag and Country”. That thinly veiled threat does, I think, violate the statute cited above and, more importantly, looks an awful lot like a threat to enact legislation tied to the protected speech of individuals. Think of it this way: Would you be offended if a President said that he/she would change tax laws so that civic advocacy groups that criticized the government would lose their tax exempt status? What about religious groups that didn’t “honor” the President as a part of their religious service. What about youth groups who don’t begin their meetings with the Pledge of Allegiance or the National Anthem? What about a threat to curtail government business with a company that refuses to fire an employee who privately expresses criticism of the government?

There is yet another factor that, unfortunately, must also be considered. We all recognize that private businesses are generally allowed to make workplace rules, whether in the nature of attire, use of company property, attendance, and so forth. But those rules cannot be discriminatory toward a protected class like race or religion. So the question, when applied to professional athletes, is whether a rule prohibiting them from protesting (or from engaging in certain types of protest) might be viewed as having a racially discriminatory motive or effect. I’m sure some will argue that race would have nothing to do with the imposition of such a rule, but given that virtually all of the players protesting are black (I think only one white player has taken a knee during the National Anthem) and that the protests are about racial inequality and injustice toward the black community, I don’t think that a racial impact or motivation can be so easily discarded.

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Much of the criticism directed at players has focused on the allegation that kneeling, rather than standing, is disrespectful. So let’s turn our attention to the United States Flag Code and, in particular, the section on respect for the flag:

No disrespect should be shown to the flag of the United States of America; the flag should not be dipped to any person or thing. Regimental colors, State flags, and organization or institutional flags are to be dipped as a mark of honor.

(a) The flag should never be displayed with the union down, except as a signal of dire distress in instances of extreme danger to life or property.

(b) The flag should never touch anything beneath it, such as the ground, the floor, water, or merchandise.

(c) The flag should never be carried flat or horizontally, but always aloft and free.

(d) The flag should never be used as wearing apparel, bedding, or drapery. It should never be festooned, drawn back, nor up, in folds, but always allowed to fall free. Bunting of blue, white, and red, always arranged with the blue above, the white in the middle, and the red below, should be used for covering a speaker’s desk, draping the front of the platform, and for decoration in general.

(e) The flag should never be fastened, displayed, used, or stored in such a manner as to permit it to be easily torn, soiled, or damaged in any way.

(f) The flag should never be used as a covering for a ceiling.

(g) The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature.

(h) The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.

(i) The flag should never be used for advertising purposes in any manner whatsoever. It should not be embroidered on such articles as cushions or handkerchiefs and the like, printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard. Advertising signs should not be fastened to a staff or halyard from which the flag is flown.

(j) No part of the flag should ever be used as a costume or athletic uniform. However, a flag patch may be affixed to the uniform of military personnel, firemen, policemen, and members of patriotic organizations. The flag represents a living country and is itself considered a living thing. Therefore, the lapel flag pin being a replica, should be worn on the left lapel near the heart.

(k) The flag, when it is in such condition that it is no longer a fitting emblem for display, should be destroyed in a dignified way, preferably by burning.

It’s also worth noting the statute governing conduct during the playing of the National Anthem (which largely duplicates another section from the United States Flag Code):

(b) Conduct During Playing.—During a rendition of the national anthem—

   (1) when the flag is displayed—

      (A) individuals in uniform should give the military salute at the first note of the anthem and maintain that position until the last note;

      (B) members of the Armed Forces and veterans who are present but not in uniform may render the military salute in the manner provided for individuals in uniform; and

      (C) all other persons present should face the flag and stand at attention with their right hand over the heart, and men not in uniform, if applicable, should remove their headdress with their right hand and hold it at the left shoulder, the hand being over the heart; and

   (2) when the flag is not displayed, all present should face toward the music and act in the same manner they would if the flag were displayed.

The most important thing to note about both of these statutes is the repeated use of the word “should”. In almost all statutes, the words used to direct or proscribe conduct are “shall” and “shall not”. I seriously hope that I don’t need to take time to explain the difference between “should” and “shall” (or “should not” and “shall not”). The point, however, is that neither of these statutes create obligations or prohibitions; rather, they present directives of how the United States wants people to act in certain situations, sort of like saying that pregnant women should not smoke or drink alcohol. But it is not a crime to act contrary to the instructions of the Flag Code and their is no penalty for doing so.

So, OK, the Flag Code and National Anthem statute provide that people should “stand”. Thus, athletes who kneel during the National Anthem are not following these guidelines. Thus, I suppose, criticism on that basis is fair. But… (you knew there would be a but…, right?). Did you notice anything else? First, if we’re going to criticize someone for failing to follow one of these guidelines and thus being “disrespectful,” then aren’t we being unfair if we single out the “offensive” conduct of that person without noting the ways in which others fail to follow the guidelines as well? I know, I know. More “whataboutism”. But is it fair to pick one provision of these guidelines and publicly rebuke those who don’t follow that guideline as being “disrespectful” while remaining silent when others fail to follow other guidelines and are, I suppose, not being “disrespectful” because … um … their conduct didn’t violate the particular guideline that you are focused on? I don’t think so. By way of simple example, note that the Flag Code doesn’t just say that a person should stand; rather the Flag Code says that a person should “stand at attention”. Hmm. When I look around stadiums, whether on the field or in the audience, I see a lot of people standing, but almost none of them are “at attention”. Many have removed their hats and placed their right hands over their hearts, but many have not. So why aren’t those people being criticized? Isn’t their failure to stand “at attention,” to remove their hats, and to place their hand over their hearts, just as much of a violation as those who kneel instead of stand? Why is kneeling disrespectful but failure to stand at attention, remove a hat, or place a hand over a heart not equally disrespectful?

But why stop with that analysis? Let’s look at some of those other guidelines from the Flag Code. For example, the Flag Code says that the “flag should never be carried flat or horizontally, but always aloft and free”. So why aren’t NFL teams being criticized for holding large flags horizontally on the field? It seems even more outrageous that this sort of “disrespectful” display is happening at the behest of and following payment by the United States military and often with the cooperation of many military personnel. In other words, the military is paying the NFL and its teams to violate the Flag Code week in and week out and the NFL and its teams are, apparently, happy to do so if the money is right.

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(This is what it looks like at most home Indianapolis Colts games during the playing of the National Anthem.)

The Flag Code says that the “flag should never be used as wearing apparel”. So why aren’t people being criticized for doing so?

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Hey, nothing says “respect for the flag” like wearing it on underwear with a bald eagle covering your dick. But at least the girl in the bikini is saluting, right? And Dolly Parton is … um … Dolly Parton! And she has a theme park! So she can wear an American flag dress, right? Just remember, though, that a man who quietly takes a knee during the playing of the National Anthem to protest injustice is being disrespectful and worthy of scorn, termination of employment, and boycott, but none of these images are worth more than a shrug. OK.

What about the Flag Code’s guideline that the flag should not be used for “bedding, or drapery”?

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I presume that those who plan to boycott the NFL because some players are being disrespectful also plan to boycott the stores that carry flag bedding and draperies (I specifically chose not to include links to these products because I don’t see any problem with them and don’t think that the stores should be subject to boycott or scorn just for selling American flag bedding or drapes).

Somebody really needs to tell these soldiers that the Flag Code says that the “flag should never be used as a covering for a ceiling” (and I learned in some research that I did while writing this post that service members are not supposed to wear their hats [covers] indoors unless “under arms in an official capacity”).

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I didn’t see an exception in the Flag Code for use of the flag on the ceiling if accompanied by a Confederate battle flag, but I’m sure that some “patriot” can explain why this is not being disrespectful.

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“The flag should never have placed upon it, nor on any part of it, nor attached to it any mark, insignia, letter, word, figure, design, picture, or drawing of any nature”. Somebody needs to tell these Vietnam vets that they’re violating the Flag Code! (and then boycott them and demand that they be fired).

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Though I do wonder whether there should be an exception in the Flag Code to permit the National Anthem or the Pledge of Allegiance to be written on the flag.

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“The flag should never be used as a receptacle for receiving, holding, carrying, or delivering anything.”

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Again, throwing your trash in a flag-themed trash can is apparently fine, just don’t take a knee to protest injustice.

“The flag should never be used for advertising purposes in any manner whatsoever…”.

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Do I really need to provide more examples of the flag used in advertising? Yeah… thought not.

The flag “should not be embroidered on such articles as cushions or handkerchiefs…”.

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A bandana is essentially a handkerchief, right? So are you going to tell this guy how disrespectful he is?

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And the flag should not be “printed or otherwise impressed on paper napkins or boxes or anything that is designed for temporary use and discard”. What percentage of households that have a July 4 party use American flag napkins? Time to boycott some parties!

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“No part of the flag should ever be used as a costume or athletic uniform.”

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In the process of researching and writing this post and while looking for some of the images that I’ve used, I came across an interesting story that I had to include. I think that it’s probably fair to presume that many (again, many, not all) of those who object to athletes protesting by taking a knee are on the right of the political spectrum. And I also think that it’s probably fair to recognize that many of those on the right of the political spectrum get their news from Fox Faux News. Now, recall that the Flag Code states that, “No part of the flag should ever be used as a costume or athletic uniform.” So imagine my … um … surprise, to come across a story about the time during the 2012 London Olympics, when a Fox host and Tea Party commentator criticized the decision of the US women’s gymnastics team to wear pink instead of the American flag uniforms worn in previous years. In other words, it’s not OK o violate the Flag Code if the “violation” is to protest inequality, but it is OK to violate if the “violation” is to show patriotism. Clear on that?

The Flag Code never mentions certain products or uses, but you do have to wonder how those who are so worried about disrespecting the flag would feel about American flag dildos or guns.

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Scratch that last query. I’m sure they’d love, love, love, American flag guns. They’d probably propose legislation to require us all to carry one and to honor it daily. I think that’s what the Second Amendment requires, anyway, right? Do American flag guns use special American flag bullets?

Furthermore, I do find it striking that those who criticize a protest that, in their view “disrespects” the flag, don’t spend even a fraction of their righteous anger criticizing uses of the American flag that seem far more disrespectful than either peaceful protest or a bikini:

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Recall that the night before Vice President (and former Indiana Governor) Pence walked out of an Indianapolis Colts game because members of the visiting team knelt, there was a second gathering of white supremacists and Nazis in Charlottesville, Virginia (sight of the white supremacist terrorist attack that killed a woman). However, Pence, who apparently had time to craft a statement against the “disrespect” shown by black athletes couldn’t be bothered to say anything about white supremacists rallying. Again.

Finally, I had to share this photo, apparently taken at or prior to an October 15, 2017, New York Jets game:

I Stand for the National AnthemIf you can’t quite make it out, his shirt says “I stand for the National Anthem” while he lounges on an American flag being used as a blanket. It would appear, then, that this Jets fan is simultaneously violating paragraphs (b), (c), (d), and (e) of the Flag Code while criticizing those who choose to kneel.

So if none of those other pictures make you want to boycott stores or criticize other “disrespectful” behavior, but you do want to boycott the NFL, then doesn’t that suggest that your problem is not so much with disrespect for the flag or National Anthem, but rather with the either the message the protestors are sending or the people sending that message?

♦ ♦ ♦

While we’re on the subject of honoring the National Anthem, I wonder how many of you can sing any stanza of The Star Spangled Banner beyond the first? I ask, not because I think you’re any less a patriot if you can’t sing the following stanzas, but rather because one of those stanzas can, in some ways, be seen to relate directly to the issues being raised by the current protests by athletes. I’m sure that many of us are familiar with the basic history of Francis Scott Key watching the British shelling Fort McHenry during the War of 1812 that prompted him to write The Star Spangled Banner. But what is less familiar (and I’ll admit to not knowing any of this before doing a bit of research) is some of the additional history that motivated his writing and that was reflected, in particular, in the rarely heard third stanza of The Star Spangled Banner:

No refuge could save the hireling and slave
From the terror of flight or the gloom of the grave,
And the star-spangled banner in triumph doth wave
O’er the land of the free and the home of the brave.

Apparently, most historians agree that with this stanza, Key was addressing and taking aim at the British Colonial Marines, a company of  freed slaves fighting for Britain. Key was happy to see these freed slaves without refuge, in “terror or flight,” and with the “gloom of the grave” facing them. Think about that for a moment: Our National Anthem has lyrics celebrating the defeat and death of freed slaves. And now athletes are using the signing of the National Anthem as an opportune time to bring to attention the problem of African-Americans being killed by police officers who then suffer no punishment together with other perceived racial inequalities in the American criminal justice system.

♦ ♦ ♦

One thing that I’ve heard repeatedly, is that football games are meant to be enjoyable entertainment into which politics or other serious matters ought not intrude. And I’m sympathetic to that argument. I want to watch a football game for the action on the field; if I wanted politics, I could go to a speech or rally. But… We don’t seem to object to the NFL’s annual efforts to raise breast cancer awareness (or now, just general cancer awareness). We certainly don’t object to the NFL’s “salute” to soldiers and veterans. I don’t usually see people get upset when the teams take time to give special recognition to soldiers or vets recently returned from overseas (or their families). And if you watch a game on TV (where you usually do not see the National Anthem performed), you are very likely to see political advertisements, whether for or against a candidate or focused on a particular issue.Yet I haven’t heard the “it’s entertainment, keep politics out of it” come up to prompt people to boycott sports on TV. Don’t even get me started on the mass of advertisements, both at the games and during television broadcasts, that certainly detract from the viewing experience. 

♦ ♦ ♦

So what makes you a patriot? If you stand and salute the flag does that make you a patriot? Or is there something more to patriotism? What if you oppose some action that the government (or military) take; does that make you unpatriotic? What if you speak critically about a law, your member of Congress, or the President; does that make you unpatriotic? To me, it seems that the problem is that for too many people, it appears that failing to fall in lockstep with a particular view is unpatriotic. Many of those same people would likely view any effort to change the status quo as being unpatriotic if the status quo was a position supported by that person. From this sort of view comes the “love or leave it” sentiment, which of course presupposes that the only way to “love” America is to agree with one position, to never see fault or wrongdoing on the part of America, and not to try to seek change (other than, perhaps, threatening to secede when you don’t get your way).

Let me offer this observation from Ashley Nicolas, a 2009 graduate of the United States Military Academy at West Point who served as an Army intelligence officer and female engagement team leader, completing a tour in Kandahar, Afghanistan, before being named a 2016 Pat Tillman Foundation scholar:

Patriotism is recognizing that those men are taking a knee because our country is deeply flawed and that segments of our citizenry have suffered from systemic inequality for centuries.

Patriotism is asking hard questions and demanding that America do better. It is asking Congress how we continue to be involved in conflicts around the world without any congressional mandate.

Patriotism is demanding reform within the Department of Veterans Affairs. It is fighting homelessness and the opioid crises across the nation. It is demanding criminal justice reform and asking why, in 2017, the quality of your education is determined by your Zip code.

Patriotism is nuanced.

Slapping a “support the troops” bumper sticker on your car does not make you a patriot, nor does standing for the national anthem. These are symbols — meaningless without the values that underlie their existence.

Patriots are critical thinkers who hold leaders accountable by asking tough questions and recognizing the flaws in our democracy.

Criticism is deeply patriotic. It keeps our leaders accountable and forces us to recognize that we are still on the long, hard march toward a “more perfect Union.”

Patriots do not stand idle when there is work to be done. They find partners, build coalitions and make an impact.

In the United States, we do not force people to engage in rote ceremonies or stand at attention for the flag by force of threat. The beauty of America is that this is a nation where every citizen has the ability to voice dissent without fear of reprisal. That conversation propels us forward.

As someone who has worn the flag on my shoulder in combat, I feel a deep pride at the sight of it. To me, the flag represents a common bond of service between myself and my sisters and brothers in uniform.

I am proud to stand and salute the flag, but my discomfort with anyone who exercises differently pales in comparison to the feelings in the hearts of those who kneel because they cannot be proud of what America has been for them.

The most patriotic thing I can do, is listen.

♦ ♦ ♦

I want to finish this (overly long, I know…) post with a quotation from the Supreme Court’s landmark 1943 ruling West Virginia State Board of Education vs. Barnette, in which the Court held in the midst of World War II, that a school could not require students to stand for the Pledge of Allegiance or salute the flag.

National unity as an end which officials may foster by persuasion and example is not in question. The problem is whether under our Constitution compulsion as here employed is a permissible means for its achievement.

Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity. As governmental pressure toward unity becomes greater, so strife becomes more bitter as to whose unity it shall be. Probably no deeper division of our people could proceed from any provocation than from finding it necessary to choose what doctrine and whose program public educational officials shall compel youth to unite in embracing. Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, the Siberian exiles as a means to Russian unity, down to the fast failing efforts of our present totalitarian enemies. Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.

It seems trite but necessary to say that the First Amendment to our Constitution was designed to avoid these ends by avoiding these beginnings. There is no mysticism in the American concept of the State or of the nature or origin of its authority. We set up government by consent of the governed, and the Bill of Rights denies those in power any legal opportunity to coerce that consent. Authority here is to be controlled by public opinion, not public opinion by authority.

The case is made difficult not because the principles of its decision are obscure but because the flag involved is our own. Nevertheless, we apply the limitations of the Constitution with no fear that freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization. To believe that patriotism will not flourish if patriotic ceremonies are voluntary and spontaneous instead of a compulsory routine is to make an unflattering estimate of the appeal of our institutions to free minds. We can have intellectual individualism  and the rich cultural diversities that we owe to exceptional minds only at the price of occasional eccentricity and abnormal attitudes. When they are so harmless to others or to the State as those we deal with here, the price is not too great. But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

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. If there are any circumstances which permit an exception, they do not now occur to us.

West Virginia State Board of Education vs. Barnette, 319 U.S. 624 (1943) (emphasis added) (internal citations omitted).

♦ ♦ ♦

In conclusion, I’m not sure that kneeling during the National Anthem is the best way for athletes to voice their opinion and I’m not sure whether a similar sort of protest would be appropriate in all circumstances and for all reasons or at all times (e.g., I’m firmly against protests at the funerals of fallen soldiers, even if the protest is against the war in which the soldier was killed). But when it comes to the narrow question of whether I support the right of professional athletes to kneel during the playing of the National Anthem in order to call attention to their concerns with racial injustices within the American criminal justice system, then my answer is strongly in the affirmative. And if asked whether those same athletes should be punished for making their opinions known by kneeling or whether the NFL should be subject to repudiation or condemnation for allowing the protests or refusing to punish the protestors, then my answer is strongly in the negative.

Most importantly, I’d suggest that the best response to the protests is not to spend our time focusing on whether the protests should be allowed or the proper time and place to protest; rather, the best response to the protests is to listen to the concerns giving rise to the protests and then get down to the hard work of trying to do what is necessary to make those protests unnecessary and bring America closer to the ideals represented by the flag and the National Anthem.

That would be patriotic and respectful.


*Before Major League Baseball, NBA, and NHL games that involve one of the teams from Canada (including the All Star Games, I believe), both the American and Canadian national anthems are played. Yet before the Indianapolis 500 and other auto races, only the American National Anthem is played, even though in many racing series (other than NASCAR), many (or most) of the drivers are not American. So why do we honor Canadians in baseball, basketball, and hockey, but not in motor racing? And why don’t we honor those from other countries in all of our sports?

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Wednesday, March 22, 2017

God in the Schools. Again.

The Indiana General Assembly is, yet again, debating a bill to legislate the interplay between religion and the public schools. In this case, the bill in question is House Bill 1024 (HB1024) authored by Rep. John Bartlett (D-Indianapolis). Unlike many of the bills I’ve written about in previous years (such as the bill to require public school students to recite The Lord’s Prayer), HB1024 actually seems designed to be inclusive rather than exclusive and to solve perceived problems. Moreover, the bill does not (generally) try to elevate any singular religious viewpoint over others. Nevertheless, despite seemingly good intentions, HB1024 has significant flaws, many of which exemplify the real difficulty of crafting legislation on such complicated and emotional subjects.

So let’s take a look at HB1024 and discuss some of the problems that I see. (Note that HB1024 is divided into two parts; the first adds a new Section 22 to the end of Indiana Code § 20-30-5 while the second part adds new Chapter 20-33-12 to the Indiana Code.) I’ll work through the language of each provision of HB1024 followed by my comments on each provision. Note that throughout this post, I’ve tried to use different religions and ideas as examples, often in an intentionally provocative way. It is not my intention to denigrate any religion or belief or to suggest that ideas espoused by any religion are right or wrong; rather, it is my intention to provoke thought and often being a bit over-the-top or offensive is the way to accomplish that goal.

Sec. 22.

(a) Each school corporation shall include as an elective in the school corporation’s high school curriculum a course surveying religions of the world. The course must include as part of the course’s curriculum:

   (1) the historical study of religion;

   (2) the cultural study of religion; and

   (3) a literary study of writings, documents, or records relating to various religions.

(b) The curriculum described in subsection (a) must be neutral, objective, and balanced. It may not encourage or promote acceptance of any particular religion.

Consider Section 22(a)’s requirement for a “course surveying religions of the world”. Note that what this means is largely left up to the school corporation. Yes, the course must include a historical study, cultural study, and literary study, all of which must be neutral, objective, and balanced. That is good; after all, religion is extremely important to many people and has been a driving factor in much of human history, both for good and for ill. But what is really required of a “survey” of “religions of the world”? For example, would the course meet the statutory requirements if it examined the Catholic, Lutheran, Baptist, Episcopalian, Greek Orthodox, and Amish faiths but did not include Native American faiths, Judaism, Islam, Mormonism, Buddhism, or Hinduism? Could the course include only monotheistic faiths? Only faiths with adherents at that particular school or within that particular community? Who would determine which faiths to include or exclude (i.e., do we include Baha'i, Santeria [voodoo], Scientology, Hari Krishna, Church of the Flying Spaghetti Monster)? And should a course surveying religions of the world also include cultural manifestations that do not include theistic belief (I’m being careful here not to confuse atheism with a religion, but atheist “beliefs” as well as things like secular humanism and the like are, in many respects, similar to religion with regard to historical and cultural studies of the sort contemplated by HB1024).

I also wonder whether the survey course could satisfy the statutory requirements by studying Biblical passages from the Old Testament (I’m using the phrase “Old Testament” here although I don’t believe that it is an accurate or appropriate term, but it is more commonly accepted and its use means that I don’t need to spend time discussing biblical historicity or terminology) and New Testament or perhaps comparing different versions or translations of the Bible but without readings from the Koran or the foundational works of other religions? HB1024 requires that the course not “encourage or promote” any particular religion, but won’t the choice of versions of writings associated with a religion implicitly serve just such a cause?

Finally, look at that last prohibition again: The course “may not encourage or promote acceptance of any particular religion.” Notice anything missing? Two things actually jumped out at me. First, the course can’t “encourage or promote acceptance of any particular religion” but what about encouraging or promoting religion generally? Can the course teach students that some form of theistic belief is necessary to lead a good or moral life or to be a full participant in what it means to be an American? It doesn’t appear that would be prohibited by HB1024 so long as the promotion of religion was general (“You should believe in a deity”) rather than specific (“You should be Catholic”). The other concern is that HB1024 prohibits encouragement or promotion of a particular religion, but says nothing about discouragement or disapproval of religion generally or any religion in particular. Thus, while HB1024 may prohibit a teacher from saying, “You should be Lutheran” it doesn’t appear to prohibit the teacher from saying, “The Pope is the Whore of Babylon and Catholics aren’t patriotic Americans”. Query further how the right-wing meme claiming that “Islam is an ideology and not a religion” would factor into HB1024’s requirements and prohibitions.

In other words, while the idea of a survey course on religions of the world is probably a good one, I’m concerned about the possible ramifications or unintended consequences of statutory language that does not precisely delineate the boundaries, requirements, and prohibitions. Sadly, we can’t presume that all teachers in all school districts throughout the state (not to mention all school boards and school administrations) are completely neutral when it comes to discussion, promotion, or denigration of religion and religions.

Moving on to the second part of HB1024… I’ll break this up into digestible chunks for the purpose of analysis and discussion.

Chapter 12. Indiana Student Religious Civil Liberties

Sec. 1. This chapter applies to all public schools, including charter schools.

OK, I know the answer already, but think about this one for a minute. Why shouldn’t parochial schools that receive state funds also have to comply with the sort of “religious liberties” that this chapter requires? Sure, I understand that a Catholic School is going to want to instill Catholic principles and teach Catholic lessons, but if it elects to receive money from the State of Indiana, then shouldn’t it be forced to adhere to certain protections for its non-Catholic students (or even Catholic students who elect to express non-traditional views)? What about wholly secular private schools? Should they be able to engage in the sort of religious discrimination that HB1024 would otherwise prohibit in public schools? Why?

Sec. 2. A public school shall not discriminate against a student or a student’s parent on the basis of a religious viewpoint or religious expression. A public school shall treat a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject in the same manner the public school treats a student’s voluntary expression of a secular or other viewpoint on an otherwise permissible subject and may not discriminate against the student based on a religious viewpoint expressed by the student on an otherwise permissible subject.

First, as I mentioned above, it is probably incorrect to classify atheism or similar non-theistic worldviews as being religions, but it nevertheless seems that students who express either an atheistic or anti-theistic viewpoint should be entitled to the same protections as a student who expresses a religious viewpoint. I’m not sure that “if any” really covers those sorts of viewpoint expressions. This concern extends to many of the provisions of HB1024 but I’ll (mostly) refrain from making this same observation over and over and over; just keep in mind as you read HB1024 and my analysis, how an atheist viewpoint would be treated by the bill’s requirements and prohibitions.

This provision also made me wonder under what circumstances a school is or should be allowed to discriminate “against a student or a student’s parents”. HB1024 would ban such discrimination on the basis of religious viewpoints or religious expression. But what about political viewpoints or political expression? Could a school discriminate against a student because his parent ran for elected office as a Democrat? What about commercial viewpoints or expressions? Could a school discriminate against a student because her parent’s business chose not to sponsor the school’s choir? Or what if a student’s parent stood up at the school board meeting to criticize a decision by a principal or teacher? I know that this is moving a bit afield from the core issues of HB1024, but it seems that the real answer is that schools shouldn’t discriminate against students or parents. Why do we need to create statutory guidelines for which specific types of discrimination are prohibited leaving some types, at least by implication or inference, as permissible?

Also, while I understand that the private schools are … well, private … I’m concerned that we would statutorily exclude those schools from prohibitions on discrimination against students or parents on the basis of religious viewpoints or expressions, especially if those private schools are receiving money from the government (or on behalf of the government).

Sec. 3. Students may express their beliefs about religion in homework, artwork, and other written and oral assignments free from discrimination based on the religious content of their submissions. Homework and classroom assignments must be judged by ordinary academic standards of substance and relevance and against other legitimate pedagogical concerns identified by the public school. Students may not be penalized or rewarded on account of the religious content of their work. If an assignment requires a student’s viewpoint to be expressed in course work, artwork, or other written or oral assignments, a public school shall not penalize or reward a student on the basis of religious content or a religious viewpoint. In such an assignment, a student’s academic work that expresses a religious viewpoint shall be evaluated based on ordinary academic standards of substance and relevance to the course curriculum or requirements of the course work or assignment.

I think that the principal goal of this section to provide that students are permitted to talk about religion in their school work and won’t be graded on the basis of what they say or don’t say vis-à-vis religion. I think. But query whether this section protects a student who writes an essay in a science class that says that evolution is wrong and that divine creation is the correct explanation? I’m really not sure if this section says that a teacher can give the student a poor grade for not addressing science or if the student is protected from receiving a poor grade because of the religious viewpoint that was expressed. And what if the “legitimate pedagogical concerns identified by the public school” include creation science or “intelligent design” (just to pick a single example)? I guess what I’m asking, in part, is whether the requirements or prohibitions set forth in a religious foundational document can be qualified as a legitimate pedagogical concern upon which grading of religious expression can be based? And, just for yucks and giggles, query whether the work of a student who bases an argument on his or her religious belief must be analyzed for grading purposes on appropriate formulation, understanding, and citation to the religious dogma upon which the argument is based? If a student writes that abortion is wrong because Jesus was against abortion, should a teacher be able to grade that student’s work upon whether the student adequately supported the position that Jesus did, indeed, oppose abortion? Or is that student’s schoolwork essentially un-gradable because it is premised upon religious belief (even if wrong)?

Now consider that survey course of world religions described above. Can a student who writes an essay in that course that denigrates another religion point to this section to protect his/her expression of religious viewpoint? Or imagine a student who, during the portion of the history curriculum that focuses on the Holocaust, writes that Jews deserved to be exterminated because they are responsible for killing Jesus. What about a student who argues that civil rights laws are wrong because the foundational documents of her religions claim that her religion’s deity chose to separate the races (a basis for the trial court’s ruling upholding miscegenation laws in Loving v. Virginia)? It seems to me that we ought not be creating an environment in which children are emboldened to express bigoted or hateful views and cite their religion as a defense. Sadly, I fear that the language of HB1024 could do just that.

Sec. 4.

(a) Public school students may pray or engage in religious activities or religious expressions before, during, and after the school day in the same manner and to the same extent that students may engage in nonreligious activities or expression. Students may organize prayer groups, religious clubs, or other religious gatherings before, during, and after school to the same extent that students are permitted to organize other noncurricular student activities and groups. A public school may indicate, in writing, orally, or both, that the religious activity does not reflect the endorsement, sponsorship, position, or expression of the public school.

While this may come as a surprise to some, I have no real concerns about students praying in school. They do it all the time before a test or before asking a girl to prom; they do it before eating lunch and before taking the field for the big game. The issue is not whether students can pray in school but rather what sort of accommodation the school must provide for prayer and whether the students can engage in prayer activities organized by the school or faculty.

The first sentence of this provision seems innocuous enough in allowing students to pray or engage in religious activities before, during, or after the school day. But what many may not realize is that the sort of prayer or religious observance contemplated by this provision does not, in fact, apply to all religions or permit the sort of prayer or religious activity that are part of some faiths. And this provision is somewhat duplicative of the current law. Indiana law presently requires schools to give students a moment of silence to “meditate, pray, or engage in any other silent activity” provided that the students must “remain seated or standing and silent and make no distracting display”. Indiana Code S 20-30-4-4.5(b). However, while many Christian students can easily sit at their desk and offer a silent prayer, that is not how many other religions approach prayer. Some religions require prayer to be done from a kneeling posture or even prostrate; some require gestures or movement; some require prayer to be aloud, often in the form of chant or song; and some require physical actions (such as ritual sweeping for Jains, the burning of incense, or the wearing of special garb or talismans). Some religions also require that prayer be done in groups rather than individually. So now, with those sorts of religious requirements in mind, go back and read the bill’s language again and try to understand how adherents to certain minority religions will be able to engage in prayer or religious activities within the school environment.

Moreover, tying the ability to students to pray to the types of activities permitted for non-religious activities doesn’t solve the problem; rather that just creates a two-tiered system where those whose religious activities fall within a certain range of activity will be permitted but those that fall outside that arbitrary range may not be. For example, if groups are generally not allowed to have lighted fires as a part of their permitted non-religious activities, what do we tell a religious group that requires the lightning of candles or incense for their religious practices? What about groups that require animals to be a part of the religious activity?

Then note the language regarding the school’s ability to say that the religious activity is not an endorsement. But the language doesn’t seem to prohibit the school from advocating participation in a particular group or club (“This afternoon, the Lutheran Club will be meeting in Room 222; we encourage all students to attend and listen to what the Lutherans have to say…”). And query the extent to which school faculty can be involved in religious clubs or groups. If the chess club, robotics club, or Young Libertarians club have faculty advisors, can the Catholic Club or Muslim Club include school faculty? What if faculty involvement is paid or not wholly voluntary? And what if the school’s rule is that a club or group must have a faculty advisor but the Islamic club or the Pastafarians can’t find a faculty member willing to become involved? Would that simply mean that some groups would be unable to engage in religious activity the same way others might be?

(b) Religious groups must be given the same access to school facilities for assembling as is given to other noncurricular groups without discrimination based on the religious content of the students’ expression. If student groups that meet for nonreligious activities are permitted to advertise or announce meetings of the groups, the public school may not discriminate against groups that meet for prayer or other religious speech.

I know that I said I wouldn’t keep repeating the point, but again consider whether an atheist group or a group hostile to religion would (or must) be permitted access to school facilities pursuant to this provision.

Next think about the signs in school hallways that certain nonreligious clubs might use to advertise or announce meetings: “Join the cool kids in theater club” or “Help stop hunger” or “Rally for ____ [insert your favorite cause]”. How do we make sure (or do we make sure) that religious groups don’t cover the school’s halls with overtly religious messages: “Join the Christian club or go to Hell!” or “Join Islam, the world’s fastest growing religion!” or the like? Thus, I guess the question is whether schools are or should be able to require that messages not denigrate other groups or use offensive rhetoric (and whether adding those sort of content restrictions is constitutionally permissible). But I can see the outcry now if the Jewish students club put up a sign that said, “Jesus Was Jewish and You Should Be Too!” or if the Church of Cannabis put up a sign promoting marijuana usage.

One other point to question is the extent to which clubs that use school facilities must be open to all. While I doubt that the robotics club would turn away anybody, query whether it would be appropriate for the school to host and permit advertisements by any group that limited its membership to adherents of a particular faith (“Hindus only!”), prohibited membership by those who might be disfavored by the particular faith (“No gays allowed at the Evangelical Christian group!”), or had any other sort of discriminatory or exclusionary policy (recall my posts a few years ago about a school being open for use by the Boy Scouts notwithstanding the anti-homosexual policy the group then followed).

(c) A public school may disclaim school sponsorship of noncurricular groups and events in a manner that neither favors nor disfavors groups that meet to engage in prayer or religious speech.

What struck me as odd about this section was the use of the word “may” instead of “shall”. So a school may disclaim sponsorship but doesn’t have to disclaim sponsorship? Which, of course, leads to the next question: Does a school have the right to sponsor groups in a manner that favors or disfavors certain religious speech? And wouldn’t a school’s disclaimer of sponsorship of one religious group but silence about another group be perceived as an implicit sponsorship or endorsement of the group for which no disclaimer was issued?

(d) Students in public schools may wear clothing, accessories, and jewelry that display religious messages or religious symbols in the same manner and to the same extent that other types of clothing, accessories, and jewelry that display messages or symbols are permitted. Nothing in this subsection shall be construed to prohibit a school corporation or charter school from establishing a policy requiring students to wear a school uniform or establishing a student dress code.

This is another one of those provisions that seem innocuous at first blush, but which becomes more troubling with more detailed consideration. For example, what happens if a school has a “no hats” rule? In that case, aren’t observant Jewish men who wear kippas, observant Muslim women who wear hijabs, or observant Mennonite women who wear caps, being treated differently than other students who may also have garb required by their religion (Mormon undergarments, for example) but which is permitted? What if the rule was even more narrowly tailored to prohibit only scarves that cover all of a woman’s hair? Or consider a rule that only prohibits t-shirts with messages that advertise alcohol or illegal conduct; does that mean that a student could wear a “God Hates Fags” t-shirt or a shirt proclaiming “Jews Killed Jesus”? Is that really what the hallways of our schools should look like? Query a rule that says “no messages”. Would a cross on a chain around a student’s neck be an impermissible message? What about a WWJD bracelet? The problem with this provision of HB1024 is that it may, perhaps unintentionally, permit disparate treatment of students on the basis of the religious garb or viewpoints. It may also lead to students who want to be provocative to look for loopholes in school dress code rules in order to make religious viewpoint statements or use the idea of religious expression to be provocative from a fashion sense.

Sec. 5.

(a) To ensure that a school corporation does not discriminate against a student’s publicly stated voluntary expression of a religious viewpoint, if any, and to eliminate any actual or perceived affirmative school sponsorship or attribution to the school corporation of a student’s expression of a religious viewpoint, if any, a school corporation or charter school shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak. The policy regarding the limited public forum must also require the school corporation to:

   (1) provide the forum in a manner that does not discriminate against a student’s voluntary expression of a religious viewpoint, if any, on an otherwise permissible subject;

   (2) provide a method, based on neutral criteria, for the selection of student speakers at school events and graduation ceremonies;

   (3) ensure that a student speaker does not engage in obscene, vulgar, offensively lewd, or indecent speech; and

   (4) state, in writing, orally, or both, that the student’s speech does not reflect the endorsement, sponsorship, position, or expression of the public school.

Presuming, for the sake of argument, that the initial provisions of HB1024 were acceptable, here is where the bill goes off the proverbial rails and into the “danger Will Robinson” realm.

In order to do any justice (pun intended) to the discussion of this issue, I need to dive into (briefly, I promise) the legal issues regarding use of public spaces. Generally, and consistent with the First Amendment, the government cannot prohibit speech in public spaces (subject to what are often referred to as “reasonable time, place, and manner restrictions”). Thus, the government can’t stop you from standing on a street corner or a public park and giving a speech about whatever issue motivates you and you can be as offensive as you want. That being said, the government could impose reasonable restrictions such as use of a loudspeaker or speeches in the middle of the night that might disturb nearby residents provided that those restrictions are content neutral. The government could close the park during the night, but the government could not close the park at night only for those who wan tto speak about a particular issue or offer a particular viewpoint. Thus, the government could not ban loudspeakers for those who want to express a religious viewpoint but permit them for political speeches and the government couldn’t allow pro-choice groups to gather in a park at night but not allow similar access to an anti-immigrant group.

But not all “public” spaces are open forums like a street corner or park. For example, there are some government owned spaces that are generally always off limits to the public. You don’t have a right to walk into the Oval Office or the BMV to give a speech; you certainly don’t have the right to walk onto a military base or into an FBI office to express your political views. Those spaces are “public” in the sense that they are owned by the government, but they are not public forums available for use by the general public.

And then there is the middle ground: Government owned property that is sometimes open or open to some. And this is where things begin to get a bit more tricky. So think of a stadium or concert hall owned by a city. Or think of the auditorium or even cafeteria in a public school. These sorts of venues are owned by the government, but aren’t generally available to the public for use. Or, for an even more simple example, think of a bulletin board in town hall on which flyers might be posted. The question becomes what sort of control can the government exert over speech in these environments.

Generally speaking, when the government permits some access to these sorts of environments, it has created what is often referred to as a “limited public forum” (as opposed to the nearly unlimited public forum of the public street corner or park). The government can limit access to and use of the public space, but that use cannot be discriminatory and cannot favor or disfavor any particular viewpoint or expression. Thus, the government could restrict access to the auditorium to groups that pay for insurance, groups that are from that local community, or groups that do not discriminate in membership, but the government could not prohibit use of the auditorium by Muslims, anti-abortion activists, the Green Party, or those who want to complain about the job elected officials are doing. That sort of viewpoint or content limitation is impermissible under the First Amendment.

Got all that? Now let’s review part of the HB1024: “[A] school corporation or charter school shall adopt a policy, which must include the establishment of a limited public forum for student speakers at all school events at which a student is to publicly speak”. Whoa! The school must establish a limited public forum at all school events at which a student is to publicly speak? Thus, if the valedictorian is to give a public speech at graduation, the school must establish a limited public forum at graduation! In other words, after the valedictorian sits down, other students would have the right to stand at the microphone and offer their own views and the government would not have the right to limit the content of the views expressed in that forum. Once the government opens the door to some speech, it must, in essence, keep that door open for other speech. It will be interesting to see how parents and families will respond to speeches from the gay rights group, the men’s rights group, the marijuana legalization group, the school’s Satan worshippers, the anti-immigration group, or non-traditional or less mainstream groups or individuals. Should be fun. And this wouldn’t apply only to graduations, either. Recall that the bill’s language speaks about “all school events at which a student is to publicly speak.” I can think of a whole lot of school events at which a student speaks (query whether a choir performance or play includes “speech” by a student such that the performance would become a limited public forum; query whether a school convocation at which the student body president will give a speech would require a limited public forum). If HB1024 passes, all of those events would need to include a limited public forum.

I was also struck by one particular element of phrasing in this section: “a student’s publicly stated voluntary expression of a religious viewpoint”. Why should the non-discrimination standard focus on a “publicly stated voluntary expression”? And what does that even mean? Must students stand on the stage of the school’s auditorium and express their religious viewpoint in order to be safe from discrimination? So, if no student stands up and says “I’m a Muslim” or “I’m Skyclad Wiccan”, then those religions can be discriminated against? And I can just see someone from a particular religious persuasion (i.e., those who might argue that Islam is not a religion) making the argument that a Muslim student who does publicly state a religious viewpoint did so under duress from the student’s parents rather than voluntarily (ignoring, of course, that the same argument could be made about minors who profess any other religious viewpoint).

Last time I checked, schools didn’t ask students to make public expressions of religious affiliation. And, last time I checked, the purpose of schools was to educate all children, regardless of religious affiliation (or lack thereof) and not to denigrate any particular faith or student or to put a student on the proverbial “spot” to declare his or her religious views.

Now, to be fair, the language of the bill does include some limiting language to try to make this whole situation more … well, I suppose “fair” is the goal. But I’m not sure how workable any of those limitations really are. For example, the language speaks about not discriminating against a religious viewpoint on an “otherwise permissible subject”. And what, precisely, is an “otherwise permissible subject” especially in the context of a limited public forum in which content-based limitations are generally impermissible? I suppose that the goal here might be to prohibit a student from discussing abortion if topics like sexuality were deemed impermissible, but the problem quickly becomes an analysis of which viewpoints or subject matter are being restricted by the government in the limited public forum. Just because an issue is sensitive, controversial, or unpopular is not grounds for it to be excluded from the limited public forum.

Or consider the requirement that student speakers be selected based on “neutral criteria”. What neutral criteria will be used and how will the designation of such neutral criteria impact a diversity of views, especially religious views? For example, if “neutral criteria” means GPA or some form of school participation metric , then certain racial, religious, or cultural groups may be both over- and under-represented; furthermore, students for whom English is not their first language and certain non-traditional or non-conforming students may also be left out of due consideration. I presume that “neutral criteria” excludes a student vote. And do the “neutral criteria” need to be structured in such a way that ensures a balance or proportional cross-section of viewpoints (whether religious or otherwise) will be presented? Moreover, I’m not sure that the notion of the government establishing criteria for who can speak in a limited public forum passes Constitutional scrutiny, but I’ll leave that to someone more versed in complex First Amendment issues. In essence, though, my worry is that “neutral criteria” could be used as a means, a justification, or both, to deny minority religious views (or minority views on any of a host of other subjects) from being expressed in the limited public forum created by the school.

Next HB1024 speaks about ensuring that student speakers do not use the limited public forum for speech that is “obscene, vulgar, offensively lewd, or indecent”. Anybody care to define precisely what that means? Would a student be in violation if she took the podium to express her religious view that Jews killed Jesus and deserve eternal, collective punishment? Would a student be in violation if she took the podium to express his religious views that a woman who has an abortion has committed murder and should go to jail? Would a student be in violation if she took the podium to express her view that there are no deities and that those who believe in a deity are delusional and should seek mental health treatment? What if the student wanted to describe, in detail, how a late term abortion is performed in order to make an anti-abortion argument? What if a student wanted to describe, in detail, how female genital mutilation is performed and its effects on women? And what if a student wanted to describe, in detail, what death by crucifixion would entail and the pain that would be suffered? I could go on and on, but I suspect that you get the idea. HB1024 would tell schools to establish limited public forums to allow different religious viewpoints to be expressed but then micromanage which aspects of religious views are acceptable. Oh, and how confident are you that all religious viewpoints will be given the same degree of scrutiny and leeway when being judged for appropriateness in the setting of the limited public forum? Will a tiny, all-white, all-Christian school in rural Indiana have the same understanding of what is “obscene, vulgar, offensively lewd, or indecent” as a highly diverse school? Remember that some communities still view things like dancing, let alone, homosexuality, as indecent or lewd.

(b) The policy established under subsection (a) shall require the disclaimer described in subsection (a)(4) to be provided at all graduation ceremonies. The school corporation or charter school must also continue to provide the disclaimer at any other event in which a student speaks publicly for as long as a need exists to dispel confusion over the school corporation’s or charter school’s nonsponsorship of the student’s speech.

I can just imagine the principal standing up at graduation, just before the valedictorian speaks, to say that the speech “does not reflect the endorsement, sponsorship, position, or expression of the public school” but that the school has merely “selected the speaker on the basis of neutral criteria.” Will anyone in attendance understand that disclaimer or believe it?

(c) The policy established under subsection (a) must ensure that student expression on an otherwise permissible subject may not be excluded from the limited public forum because the subject is expressed from a religious viewpoint.

Again, the applicable question is what is an “otherwise permissible subject”? Moreover, wouldn’t this permit a student to denigrate or attack others so long as the general subject matter is permissible and the student’s expression is of a religious viewpoint? Thus, for example, wouldn’t this mean that a student could talk about a subject like immigration or the value of diversity (which, I presume, would be permissible subjects) but then use a “religious viewpoint” to express the belief that Islam is not a real religion and that Muslims should be excluded from immigration?

(d) The policy established under subsection (a) must include measures to make reasonable accommodations for individuals who wish to be excused from a student’s speech that includes religious content because of the individual’s own religious belief or lack of religious belief. Such accommodations may include requirements that students who wish to express religious content in a limited public forum speak at the beginning or end of the particular event to allow individuals who desire not to be exposed to the religious content the opportunity to be excused.

This provision could be entitled “How to Divide Your Student Body Into Discrete Faith-Based Groups” because that is essentially what it would likely entail. And I can think of few better ideas for a school environment than being forced to segregate students or forcing some students to self-identify as “different”. </sarcasm> First, think of how the school is supposed to know whether a student speaker intends to express a religious viewpoint (and what happens if a student improvises to add religious content…)? And how exactly is the school to determine if the viewpoint being expressed is religious or secular? For example, if a student wants to speak about her opposition to abortion, is that a religious expression? Is it only a religious expression if she mentions the Bible or Jesus? What if she speaks about morals rather than religious directives? What if the student is an atheist who wants to discuss the harm that religion can cause or the wars that have been started in the name of G-d?

As the law currently stands, schools cannot compel students to recite the Pledge of Allegiance. Moreover, schools aren’t supposed to ostracize students who elect not to participate in the Pledge. But do we honestly think that, especially in less diverse schools, that sort of ostracizing doesn’t happen? Think how much worse that might be if the topic is religion rather than patriotism (note, that I don’t really equate the Pledge of Allegiance with patriotism…). Consider further the sort of reverse stigmatism that could be put into play as well. For example, when students who express a religious viewpoint hostile to homosexuality ask to be excused from having to listen to the presentation from an openly gay student or when the only Muslim student in a particular class finds himself speaking to an empty classroom because other students exercised their right not to be exposed to the religious views or expressions of that student. Wait, I know! Maybe we should have some schools just for Christians, others just for Jews and others just for Muslims. Equal, but separate. Oh, wait. Never mind.

So let’s think about how this might work in actual application. Does this new law permit a school to give the microphone to a student (chosen on the basis of neutral criteria!) before each football game to offer some words of encouragement to the team and fans? And, if the chosen student indicates an intent to offer a prayer or other religious expression, does the school have to make some sort of announcement that “all godless heathens or who profess a faith that won’t say ‘amen’ to a prayer given in the name of Jesus Christ should leave the stadium for a few minutes”? Or maybe a somewhat more subtle announcement, like “Will all students who don’t believe in the divinity of Jesus and who don’t want to hear a prayer in his name, please leave now? Hopefully, we’ll remember to let you know when we’re ready for kickoff.” Is that what we want?

Sec. 6.

(a) The department, in collaboration with organizations with expertise in religious civil liberties, shall establish a model policy addressing the requirements established by this chapter. The model policy shall be made available for school corporations and charter schools to assist a school corporation or charter school in meeting the requirements established by this chapter.

(b) The department shall publish the model policy established under subsection (a) on the department’s Internet web site.

Anybody have an idea which organization “with expertise in religious civil liberties” will help the Indiana Department of Education establish a model policy? What if that organization has an avowed religious affiliation or viewpoint itself? Perhaps I’m wrong, but I suspect that Republican Indiana would be loathe to have organizations like the American Civil Liberties Union or Americans United for Separation of Church and State help craft the model policy. I suspect that Indiana would be more likely to turn to an organization like the American Family Association or Liberty Council to help craft the model policy, but I have little faith (pun intended; sorry, couldn’t resist) that those organizations (or others like them) would have much interest in creating policies that would really treat all religious viewpoints equally or that would have a sympathetic view of those who might want to express minority or nontraditional views.

Sec. 7. This chapter shall not be construed to authorize the state or any political subdivision to do either of the following:

   (1) Require any person to participate in prayer or in any other religious activity.

   (2) Violate the constitutional rights of any person.

It seems almost — almost, mind you — amazing that we would even need to include language in a statute that reminds us that the state can’t require people to participate in prayer or religious activity or violate constitutional rights. More importantly, a statute can’t authorize the state to violate constitutional rights (and forced religious participation would violate rights guaranteed by both the state and federal Constitutions). But that’s where we are… Of course given that Indiana legislators have, in recent years, proposed legislation requiring all student’s to engage in Christian prayer, then perhaps this language is intended more for their benefit than for the schools.

Sec. 8. The provisions of this chapter are severable as provided in IC 1-1-1-8(b).

This last little bit of legalese is actually important. In essence, what this says is that if a court were to find one part of HB1024 to be unconstitutional, only that part of the law would be unenforceable while the rest would remain in place as opposed to having the entire statute become unenforceable. Often, as in bills like this one, the statutory framework is designed to work as a whole and if pieces are found to be unenforceable, then the intent or the protections, for example, may not be reflected in the way that the law winds up being enforced when only parts are struck down by a court. Adding this severability clause means that parts of the law could be enforceable even if other parts were not.

As I mentioned at the outset, I think that HB1024 was based on good intentions and a desire to try to avoid conflicts within schools over religious expression. However, I believe HB1024 is fatally flawed. Much of the conduct that it endeavors to address is already permitted within schools or the subject of detailed (and often complex) court rulings. More importantly, because of the complexity of the issues and the raw emotions often involved with issues involving religion, HB1024 is likely, as I I’ve tried to address, to lead to even more controversy, litigation, claims of discrimination, hurt feelings, and segregation along religious lines.

Please call your Indiana legislators and ask them to vote against HB1024.

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