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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Thursday, February 2, 2017

Supreme Court Battles

Donald Trump has nominated Judge Neil Gorsuch to the Supreme Court of the United States (SCOTUS). I have not read many of Judge Gorsuch’s opinions. However, based on what I have read (both by and about him), my initial reaction is negative. His views seem to be very much on the opposite side of the socio-political spectrum from mine. But those differences are within “normal parameters” (to continue borrowing P.J. O’Rourke’s terminology). Thus, in ordinary times, my inclination would be to voice criticism about the nomination but recognize that a President with his party holding the majority in the Senate is entitled to have his nomination confirmed.

But these aren’t ordinary times.

Let’s remember that Justice Scalia died nearly a year ago. Before the cause of death had even been announced (and don’t forget that Trump suggested foul play…), Senate Republicans stated that they would not consent to any nominee from President Obama. It didn’t matter that Judge Merrick Garland was well-respected, that GOP leaders had previously said that if he were a nominee, they would consent to his appointment, or even that they could go through the process of nomination hearings and then vote the nomination down. Nope. Instead, Republicans stonewalled for 10 months, refusing to even consider the nomination. Republicans argued, in essence, that a (black) President is not entitled to nominate a new Justice during his last year in office or during an election season. And they made up all sorts of … um … “alternative facts” to support their twisted and tortured reasoning.

Shameful and disgusting are the two words that first come to mind to describe those actions by the Senate Republicans. An attack on our democratic institutions is a phrase that also comes to mind.

And then, almost unbelievably, things got even worse. Think back to the waning days of the 2016 electoral season when several Republican Senators (including John McCain, Ted Cruz, and Richard Burr) said that they would never consent to any Supreme Court nominee put forth by President Hillary Clinton. In other words, the rules for Supreme Court nominations, as articulated by Republicans, appear to be that Democratic Presidents especially blacks or women are no longer entitled to have their nominations to the Supreme Court confirmed by the Senate and that vacant seats on the Court must remain that way until a Republican is in the White House.

And then the Republicans won the White House and maintained a slim majority in the Senate.

Now that Trump has nominated Judge Gorsuch to the seat that should have been filled by Judge Garland, Republicans are outraged  outraged!  that Senate Democrats might try to block the nomination.

Hmm. Well, according to their own rules, we should wait for the next election to let the people speak as to whether the people approve of Judge Gorsuch, just as Republicans wanted to let the people speak with regard to the nomination of Judge Garland (and apparently 3 million more people approved of Judge Garland than those who disapproved…). Oh, and we are in a Presidential election season; after all, Trump broke with tradition and has already filed paperwork to run for re-election in 2020.

(By the way, it’s worth noting that President Obama and Democrats had several ways that they could have countered Republican obstruction, including a recess appointment, claim that Republicans failed their Constitutional obligation, or a confirmation vote between the end of the previous session of Congress and the swearing in of new and re-elected Senators, but Democrats were apparently not willing to “blow up the system” and force a Constitutional crisis the way Republicans seem to be. Just food for thought.)

I’ve seen some commentators suggest that Judge Gorsuch be treated to the same degree of courtesy and consideration shown to Judge Garland. I actually disagree with that statement. I think Judge Gorsuch should be shown the same degree of courtesy usually afforded to a Supreme Court nominee. But Democrats should hold firm and use whatever powers they may have to be sure that no Supreme Court nominee is considered until Judge Garland takes his rightful seat on the court.

In fact, given the degree to which Senate Republicans blocked or delayed President Obama’s other judicial nominees (at an unprecedented rate), I think that Senate Democrats should use all of their powers (which may not be much…) to block all of Trump’s judicial appointments until outstanding Obama appointments are given due consideration.

I’ve also heard the suggestion that Democrats should consent to Judge Gorsuch’s nomination and hold their fire for the battle if and when a liberal member of the Supreme Court retires or dies. The problem with that strategy, as I see it, is that there is no reason to believe that the Republicans would view Democrats’ graciousness now in any sort of favorable way later. Yes, Republicans might try to do away with the judicial filibuster now. But if Democrats don’t filibuster Judge Gorsuch’s nomination and save that tool for a later nomination fight, why do we think that Republicans wouldn’t just do away with the judicial filibuster then?

Look, I don’t like these sorts of political games. I really don’t. I think that both sides need to “get along” and work together to find bipartisan solutions to important issues. I really do. But when one side chooses to abuse the system (remember when Republicans filibustered their own bill and nominees that they recommended; remember when they filibustered the appointment of a chair for the Consumer Financial Protection Bureau, not because of his qualifications, but because they didn’t like that new governmental bureau; remember when they continued to hold sham “sessions” at which no business was transacted in order to keep President Obama from making recess appointments) and to put politics ahead of both tradition, comity, and country, then perhaps two wrongs can make a right. Maybe some of the more principled Senators will recognize that brinksmanship and these sorts of efforts to destroy the system are actually bad for the country. Maybe. But if Democrats don’t even try to stop this nomination, if they just roll over and play dead (as they seem to have done so many times before), then Republican malfeasance will be rewarded and will become the standard way of doing business (at least when Democrats are in the White House).

Will the Democrats be able to stop Judge Gorsuch’s nomination (or the nominations of others)? Probably not. But they must try. They must put up the “good fight”. They must show the Republicans that total obstruction and gridlock is a weapon that can be wielded by both sides.

And perhaps Senate Republicans should consider one more thing if they continue to act as they have been: Let’s just say, hypothetically, that in 2018, Democrats retake the House and Senate (remember that the party holding the White House traditionally loses a number of seats in those off-year elections). If I was a Democratic Congressman, I might think about filing articles of impeachment against Justice Gorsuch (or whoever occupies Justice Scalia’s former seat) because that seat should have been occupied by Judge Garland. High crime or misdemeanor? Well, I’d argue that a blowjob was neither, but it was, then perhaps “theft of a Supreme Court seat” might also qualify. Senate Republicans need to remember that if they want to use the rules to play politics at the expense of the country, then at some point the proverbial shoe will be on the other foot. But until then, it is likely that Senate Republicans will hear the desire of Trump and many of his supporters to bring chaos to the system and to burn down the institutions that have worked so well for so long.

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Friday, January 27, 2017

We Have a New President and I’m Worried

First, let me apologize for the lack of recent posts. Though there have been many things about which I’ve wanted to write, I think that I’ve been virtually paralyzed by a sense of depression, dread, and even a bit of fear. Over the years that I’ve been writing this blog, I’ve been critical of many politicians at many different levels of government, but never did I worry that any of that criticism would lead to retaliatory action against me, my family, my associates, or groups or businesses with which I am affiliated or employed. But with the inauguration of Donald Trump, I find myself harboring just those sorts of concerns.

However, at the same time, I find that I cannot sit idly by. I just … can’t.

After Trump was elected, I promised a friend that I would keep an open mind and judge Trump by his actions and not just by his campaign rhetoric. I intend to uphold that promise. But I won’t withhold criticism when Trump’s words or actions are problematic. As I’ve thought about it more, I’ve realized that staying quiet out of fear of what a “leader” may do is a first step toward allowing fascism to take hold at the expense of a democratic system premised upon the free and open exchange of ideas and where we have the First Amendment specifically to permit the electorate to criticize its government and leaders. We cannot allow fear of reprisal to weaken the institution of free speech and the marketplace of ideas.

Thus, if I am to set aside Trump’s campaign rhetoric and judge him by his actions, I can’t say that I’m either impressed or pleased. Whether it be Trump’s inability to let any insult go unanswered (and can we give Alec Baldwin the Emmy now?), his feud with the intelligence community, his off-the-cuff remarks that have needlessly antagonized both allies and adversaries, or any of a number of other things that he has said, done, or not done, I am not reassured. In fact, my sense of worry has only increased in these transition months and the first week of his administration.

So allow me to discuss just a few of the things by which I think it is fair to judge Trump and for which, in the judging, he has come up far short.

First, is his refusal to really address his innumerable conflicts of interest in any real manner (and not just give lip service to the issue). Let me offer just a few small examples of how this could come into play. Take the Trump hotel in Washington D.C. Foreign leaders visiting Washington may feel pressure to stay in that hotel to gain favor with Trump. Or, to be more crass about it, they may essentially feel compelled to bribe the President of the United States to curry diplomatic favor. Think how angry some of you would have been had a foreign leader paid tuition for President Obama’s daughters. But when foreign leaders stay in a Trump hotel they will be directly benefitting Trump the individual in order to keep Trump the President happy. That can’t be how our system is designed to work. In fact, the Emoluments Clause was included in the Constitution precisely to prevent such a situation.

Because Trump hasn’t released his tax returns, we don’t know about all of his investments or debt obligations. But we do know that he is indebted to the Bank of China and Deutsche Bank. Had Trump divested his assets or put them into a blind trust, he would likely be less tempted to consider how any particular policy might impact his personal relationships with those banks. But he hasn’t. Those relationships are still “in the family”. So if the Bank of China were, hypothetically, to offer to forgive Trump’s debts in exchange for the United States (i.e., Trump) recognizing China’s claim to the Spratley Islands, are you convinced that Trump would say “no”? I’m not. Similarly, if Deutsche Bank were, again hypothetically, to offer to forgive Trump’s debts in exchange for the Justice Department waiving the multi-billion dollar fine being levied against the bank, are you convinced that Trump would say “no” to that offer? What about relationships with other countries in which Trump owns real estate or where property is emblazoned with his name? Might his decision-making in the White House include as a component how any action (or inaction) by the United States would affect those properties? It is worth noting that is initial executive order to block visas from some Muslim notions omits Egypt, Turkey, Saudi Arabia, and the United Arab Emirates, all of which are countries in which Trump apparently has business relationships or assets. Hmm.

And none of that is even remotely as dangerous or worrying as the very real possibility that Russia does, indeed, have some sort of compromising information about Trump.

I’m also very displeased with many of Trump’s nominees. Look, I understand that in politics one side wins and one side loses. Thus, while I may dislike some nominees because their views on certain issues differ from mine, I also recognize that is how the system works. But the system also has a built-in expectation that those nominated for cabinet posts will have some degree of qualification for the post to which they are nominated. And there is some built-in expectation that the nominee won’t be an actual foe of department to that the nominee would lead. As a recent Internet meme noted, the last three Secretaries of Energy (under President Bush and President Obama) all had doctorates in the sciences (chemical engineering, physics, and nuclear physics, one with a Nobel Prize, while Trump’s nominee, former Texas Governor Rick Perry, studied agriculture and received a D in a class called “Meats”.


I am also very, very troubled by Trump’s claims, each based on essentially nothing, that torture works and that voter fraud is real. An administration that bases policy on unsubstantiated “experts” or conspiracy news is very worrying. And think about this: Trump wants to investigate voter fraud, despite the fact that there is no evidence, but he doesn’t want to investigate Russia’s interference with the election, despite the fact that there is apparently an abundance of evidence. Can we trust how he will consume, interpret, and act upon evidence given to him by real experts over the next four years?

And is Trump so … I don’t know … scared? … of reality, facts, science, and the like, that his insecurity demands that he try to bury information that he doesn’t like or agree with and gag those who might share that information?

I’m not even going to get into the whole problem of “alternative facts”. That is a huge subject better left for another day. Let me just offer this “alternative fact” of my own: Hillary Clinton is the President of the United States because she won 3 million more votes than Donald Trump.

The United States is not some petty Third World dictatorship; nor is it the dystopian Airstrip One of 1984 where history is remade to suit the leadership. Unfortunately, in the week that has passed since the inauguration, Trump’s actions have made me question whether he understands that. And isn’t it interesting that 1984 is now the best-selling book on Amazon?

Now, I will admit that I was pleased to see Trump back down or walk away from some of his campaign pledges. I’m glad that he no longer intends to “order” a special prosecutor to investigate Hillary Clinton. I’m really glad that he wants to make healthcare available to all Americans (though if ever the phrase “the devil is in the details” were appropriate, it would be for that claim). However, the speed at which he has changed course is troubling. It’s not unusual for a newly elected President to ignore or even reverse course on some campaign pledges (“Read my lips: No new taxes!” comes to mind), but those sorts of policy shifts usually occur over time, often as a result of political capital, changes in the economic situation, or the like. Yet here, at the same time that Trump is going full steam ahead on some pledges, he has acknowledged that he had no intention to keep other promises that he made simply because they sounded good during the campaign. Thus, I can’t help but wonder whether there is anything about which people can trust and rely upon Trump’s previous pledges. (Well, he is, apparently, going to “build that wall”, but who will ultimately pay remains very much an open issue.)

Moreover, as much as I don’t want to see him push forward some of the policies that he has advocated, I am also worried about what may happen when he abandons those things that caused people to vote for him. Many claim to have voted for Trump because he wasn’t a normal politician. But how will those people react when they realize that he is, in many ways, even worse than a normal politician? How will blue collar workers who he led to believe were losing jobs to undocumented immigrants feel (and react) when they realize that their taxes will be used to pay for the wall? How will factory workers feel (and react) when Trump doesn’t put pressure on their company to retain jobs the way he put pressure on Carrier to retain some jobs? How will they feel or react when they lose their healthcare or when their public school loses federal funding because of privatization efforts? And so on and so on and so on… How will they react when it finally dawns on them that Trump is enriching himself and his billionaire colleagues at the expense of working Americans?

We saw anger start to boil over in 2010 when President Obama and Congressional Democrats were considering legislation to provide healthcare (and don’t forget that much of that anger was premised upon outright lies like “death panels”). How might that anger be directed if people feel betrayed by Trump’s actions?

It is incumbent upon Americans to stand up and be heard and to make sure that Trump does not go beyond the bounds of the office, does not use the office to enrich himself, and does not destroy the notion of what America is and what it stands for.

I will view Trump’s statements and actions with an open mind. But one week into his administration I am displeased and worried.

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Tuesday, November 29, 2016

Donald Trump Suggests Revoking Citizenship of Americans Who Engage in Constitutionally Protected Free Speech

Donald Trump is still more than a month away from taking the Oath of Office to become President of the United States yet he is already suggesting new ways to shred the protections set forth in the Constitution of the United States:

Plenty of other people have already pointed out that burning an American flag is a Constitutionally protected form of free speech, so I won’t belabor that point (though if the issue remains lively, perhaps I’ll come back and address the free speech implications including the late Justice Scalia’s view that flag burning is precisely the sort of speech that the First Amendment was intended to protect). What fewer people are discussing is Trump’s suggestion that the penalty might be “loss of citizenship”. That sort of thinking may be endemic to petty dictatorships or totalitarian countries but it is not how we punish people in America, especially for the “crime” of speech.

Yes, US law permits revocation of citizenship for a naturalized citizen (such as Melania Trump) for falsifying immigration and naturalization information (such as, perhaps, Melania Trump), refusing to testify about immigration information, for joining certain “subversive groups” (like the Communist Party, but apparently not the “alt-right”)*, or for being dishonorably discharged from the military (after a court martial) when service in the military was the basis for naturalization. The law does not permit denaturalization for merely criticizing the government, a governmental policy, or an elected official; nor does the law permit denaturalization for engaging in constitutionally protected activity other than association with certain groups (and I haven’t researched how courts have interpreted that exception with the First Amendment’s right to freedom of assembly). In fact, the law does not even permit denaturalization for commission of a crime.

But here is the important thing: There is absolutely no constitutionally permissible procedure for the United States to revoke citizenship from a natural born citizen unless that citizen intentional actions steps to renounce citizenship (such as actually renouncing citizenship or swearing allegiance to a foreign power in lieu of the United States). Absent such an act by a natural born citizen, the United States can’t revoke citizenship. Think of it this way: The United States did not revoke the citizenship of Japanese-Americans interred during World War II; nor did the United States revoke the citizenship of Vietnam-era protestors or draft dodgers (hey, there, Donald!); nor did the United States revoke the citizenship of “communists” exposed during the McCarthy era or of domestic terrorists like Timothy McVeigh, Eric Rudolph, or the Unabomber). And we certainly didn’t revoke the citizenship of people who exercised their First Amendment rights to criticize the American government, American policy, or American leaders (such as, for example, Donald Trump).

The very suggestion of revocation of citizenship as a penalty for … well, for anything … should terrify Americans. If revocation of citizenship is appropriate for flag burning (presuming it wasn’t constitutionally protected free speech), then for what other activity might revocation of citizenship also be appropriate? Engaging in an illegal protest? Giving support to a group or country deemed “bad” by the United States (such as Cuba or Venezuela or … Russia)? What about refusing to recite the Pledge of Allegiance, kneeling during the singing of the Star Spangled Banner, or saying that you are “ashamed” of America or that the President “is not my President”? Are those offenses for which revocation of citizenship should be contemplated as an appropriate penalty? All of them seem similar to burning the flag, don’t they?

And what about those of us who refuse to raise our arm at the proper 45° angle while chanting “Heil Trump”? Will our citizenship be revoked? Yes, obviously, that is an extreme example, but the point remains that an elected leader who even suggests using revocation of citizenship as a penalty, especially as a penalty for engaging in core constitutionally protected free speech is just the sort of demagogue for which those sorts of remote examples are exactly appropriate. It is often said that “dissent is highest form of patriotism” (often falsely attributed to Thomas Jefferson), yet Donald Trump is threatening revocation of citizenship for a certain type of dissent with which he disapproves. Of course if we only permitted “approved” forms of dissent, it wouldn’t make for very good dissent, would it?

Donald Trump will soon swear to protect and defend the Constitution of the United States of America. It would help if he had some tiny glimmer of what the Constitution says, what protections it provides, and why those protections exist. In a democracy like ours, we don’t punish people for dissent; we don’t punish people for criticizing their government; and we certainly don’t punish people by revoking their citizenship. So which parts of the Constitution will Trump defend?

We need to keep pointing out just how little Trump knows or cares about our democratic institutions and how outrageous some of his discriminatory and undemocratic ideas are so that, perhaps, his supporters will understand both the mistake that they’ve made in electing him and the fear being experienced by many minority communities and other detractors.


*The law provides that naturalization can be revoked if a person within 5 years after being naturalized becomes a member of a group that would have precluded naturalization in the first place. Those groups are defined as:

(2) who is a member of or affiliated with (A) the Communist Party of the United States; (B) any other totalitarian party of the United States; (C) the Communist Political Association; (D) the Communist or other totalitarian party of any State of the United States, of any foreign state, or of any political or geographical subdivision of any foreign state; (E) any section, subsidiary, branch, affiliate, or subdivision of any such association or party; or (F) the direct predecessors or successors of a ny [sic] such association or party, regardless of what name such group or organization may have used, may now bear, or may hereafter adopt…

Query why the Communist Party is specified but groups like al-Qaeda, ISIS, or certain non-totalitarian white nationalist parties (like the KKK) are not included.

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Wednesday, November 9, 2016

My Friend Died Yesterday; Her Name Was America

It is very difficult to describe the depth of my pain and sorrow this morning. I have long thought of America as an ideal, imperfect, but always striving to be that more perfect union. A land where the petty hatreds that have torn at the fabric of humanity for millennia could finally be laid to rest as all people would be treated equally and with dignity, a land where people could choose to live according to the dictates of their faith (or lack thereof) with the respect of their neighbors, and where people of all races could mingle knowing their differing values and views, traditions and hopes, would be welcomed to the giant melting pot. Where e pluribus unum was more than just an old motto carved into monuments.

And I know that some of those who voted for Donald Trump share that ideal.

For years, beginning when I was in junior high school and continuing through the present, in one capacity or another, I have worked to help further that vision of America and to help bring about the promise of equality and an expansion of civil rights, whether with regard to religion, race, sexual orientation, or any of a host of other categories. And, since the very beginning of 2008, I’ve written this blog. I’m pretty certain that if you go back and read about the issues on which I’ve written, you’ll discover my passion for equality, dignity, and civility has been a consistent theme. I’m sure that from time-to-time, my anger or frustration, have gotten the better of me, but I’ve strived to offer people an opportunity to engage me in civil discussion over important issues, at the core of which are the rights and dignity of all Americans.

I understand that people were angry with how the system was working (or not working). I understand some people felt dislocated by the transition in the economy from manufacturing to services and tech. I understand that some people felt left out by globalization and other rapid changes in our economy. And I certainly understand that many people feel as if their voice doesn’t matter because of the influence of money and special interests in our political system. I get that. And I get that not everyone who voted for Donald Trump did so on the basis of animus for those who don’t look or think the same way that they do.

But last night, I seemed as if nearly 60 million people told me that all of the ideals that I’ve worked for, all of those ideals that I hold at the core of what our country is supposed to represent — supposed to be — didn’t matter. They told me that they don’t care about equality for the LGBT community. They told me that they don’t care about voting rights for African-Americans. They told me that they don’t care about splitting up immigrant families or the harm to undocumented immigrants for whom America is the only home they’ve ever known. They told me that they don’t care about the plight of those fleeing civil war and horrific brutality. And they told me that they don’t care that they are aligning with those who view me as a subhuman who should be led to the gas chambers with my family because I am a Jew. Excuse me, I meant to say (((Jew))).

So when I woke up this morning and reflected on the election, I had to consider something that others have told me from time-to-time: This isn't really my country. I can only wonder if some see this as only as “their country” which they have now “taken back” from “the other” while allowing those who don’t fit into the majority cohort to stay here as something … well, something less. It is a country that belongs to its white, Christian majority that has tolerated the presence of Jews, Muslims, and others, has grudgingly granted something approaching equality to people who aren’t white, and which is reluctantly grappling with the question of what to do with the fact that there are homosexuals (and transgender people) in our midst. But I now understand, more so than I have previously, that the minority communities of America are not, at least to a large swath of the population, “real Americans”.

Please understand that I'm not suggesting and don't believe that all of the people who voted for Trump are racists, anti-Semites, xenophobes, misogynists, bigots, or the like. But I am extremely troubled that those people chose to ignore or forgive those traits when they cast their vote. A vote for Trump may not, in and of itself, represent racism and its associated bigotries, but it did validate Trump’s racist views and the views of the alt-right, KKK, and the like. Those votes told Trump that his use of racism and bigotry was a winning tactic and, as such, will likely persist and increase in the American political lexicon and playbook. And it emboldened those who viewed him as giving voice to what they perceive as an embattled white (and, in particular, white Christian) America.

So after this election, how do you look at your gay cousin who must now worry that his newfound equality (still a work in process) will be stripped away, his marriage nullified, his adoption of a baby reversed? How do you look at your Muslim colleague who wants nothing more than to live in peace with his neighbors now that he knows that a huge swath of his country and his President-elect think he is a terrorist who hates America and intends violence upon us? How do you look at your Latino co-worker who worries that her mother may be deported or that she cannot serve as a judge simply because of her heritage? How do you look at your African-American acquaintance who worries that her husband or child will be shot by police for driving without a broken brake light? How do you look at your Jewish friend who heard vicious anti-Semitism from Trump supporters, such as exhortations to put America's Jews into gas chambers?

Perhaps it's because far to many of you have no gay cousins, Muslim colleagues, Latino co-workers, black acquaintances, or Jewish friends, most likely because our society has become so bifurcated and polarized and “those people” live only in the “blue” urban areas that seem foreign and alien to you. Perhaps you don't see those people as being your friends, of being real Americans, of being human and entitled to the same dignity you expect for yourself. I don’t think Donald Trump’s presidency is going to make minorities feel more a part of our society or make you think of them as being more American.

But even if you don’t really care about the gay cousin, Muslim colleague, Latino co-worker, black acquaintance, or Jewish friend, how do you look at your daughter who now knows that you can forgive the admission of sexual assault, use of terms like "pig" and "bimbo", serial philandering, and pussy grabbing? And how do you explain to your son that the things that his President brags about are unacceptable … but that you voted for him anyway?

To me, America was both my country and an ideal; an ideal that I put years and years of effort into making more perfect so that all of us could live together in peace. Last night that ideal was ripped away.

Let me conclude with the hope that I expressed nearly a year ago, when I began to see the rise of Donald Trump as a serious candidate:

It’s time to recapture the idea of America from demagogues like Trump. It’s time to recapture the idea of an America in which competing ideas can be discussed civilly and in which the notion of a melting pot, of e pluribus unum, is celebrated. It’s time to put hate and fear aside in favor of efforts to make friends across barriers and to take the time to learn about others who may be different than we are. We can disagree on policies but recognize that we are all Americans who value the concept of America. We can disagree on those policies but learn to discuss them without hate or rancor, without viewing those with whom we disagree as the enemy or intent to destroy the idea of America.

But our democracy worked as designed. A minority of voters elected a racist, anti-Semitic, xenophobic, misogynistic, know-nothing, fascist.

I feel like a good friend died yesterday. Her name was America.

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Tuesday, November 1, 2016

Would the “Bradley Effect” Help Clinton or Trump?

When looking at polling data and trying to extrapolate the expected results in an upcoming election, one thing that is often encountered has come to be known as the “Bradley Effect”. In 1982, former Los Angeles Mayor Tom Bradley was running for Governor of California. All of the polls showed that he was leading in the days leading up to the election. Thus, most everyone was surprised when Bradley lost. Essentially, what appears to have happened was that white voters told pollsters that they would (or had) voted for Bradley (who was African American), but when the votes were actually counted, Bradley did worse than expected due(apparently) to white voters who told pollsters one thing but did another. This phenomenon has been seen in other elections (almost always when one candidate is a minority).

So the question becomes whether the Bradley Effect might be in play in the 2016 Presidential election. And the follow-up question is, of course, who the Bradley Effect would help or hurt?

One view is that many people who plan to vote for Donald Trump don’t want to publicly admit that they will be doing so (or have already done so) because they don’t want to be labeled a “deplorable” or a racist, bigot, etc. It seems reasonable to believe that there could be many, many voters who would refuse to admit support for Trump for just this sort of reason. Similarly, I wonder about support for Trump among minorities who may be attracted to Trump’s immigration policies but who feel constrained –- by being minorities themselves -- not to be seen supporting someone who is criticized for his views about minority groups. I’m not so sure that other reasons why someone might lie about supporting Trump make as much sense or would account for too many voters. And I cannot begin to evaluate the idea that some men will proclaim support for Clinton only to decide that they really don’t want a woman as President.

Now the thing to ask yourself about these “hidden” Trump voters is whether they are telling pollsters that they are voting for Clinton, thus elevating her apparent support, voting for a third party candidate (in which case they will help Trump but not to Clinton’s direct detriment), or are included in the category of undecided voters.

Of course there is an opposite side to the Bradley Effect in the 2016 election.

Might some voters, especially women or young people, be telling pollsters that they are planning to vote for Trump because they are expected to do so based on race, locale, economics, or so forth. How many women, for example, might be planning to vote for Clinton -– either because she is a woman or because of Trump’s misogynist statements –- but don’t want to let those in their family and friend circles know because of the expected backlash they might expect? Imagine, if you will, the dinner table discussion in the home of a white, working class family, where neither the husband nor wife has a college education. In that situation, might one (or both!) of them be reticent to express support for Clinton or opposition to Trump because of concern about the spouse’s expected reaction?

It seems that passions are so high this electoral season, that it might not be surprising if people were hesitant to admit support for or opposition to one candidate out of concern about how they might be perceived by family and friends. And that hesitation might carry over in to responding to the questions of pollsters. It might even be seen in the exit polls that are reported on election night.

Two final anecdotes to add to all of this: Last night (Halloween), I sat on my driveway handing out candy to trick-or-treating kids. And I talked to parents who trailed behind their kids along the sidewalk. It was hard for them to miss the makeshift Clinton (and John Gregg for Governor) sign I’d put up in my yard (my “real” sign was stolen after being up for just five days). One man, who by application of stereotypes, I presumed would be a Trump supporter (remember, I live in a very red district), told me that he loved my sign and said that he wished that he had the “courage” (his word) to put up his own Clinton sign. What do you think he is telling pollsters, if asked? At the other end of the spectrum, another family saw my sign and told their child that she didn’t need to come up my driveway for candy. I guess they expected a Clinton supporter to try to poison their child, right?

Anyway, for two additional views on the subject, you might want to read both “GOP insiders: Polls don't capture secret Trump vote” and “How large is the “Secret Hillary Club”? Red-state women may be defying their Trump-loving husbands”.

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Wednesday, October 19, 2016

The Right to Hunt and Fish Does Not Belong in Indiana’s Constitution

Portions of this post were originally published on February 9, 2011 in a post entitled “You Have Got to (Cluck) Be Kidding Me”.

As I think I’ve previously said on an occasion or twelve, constitutions (whether that of the United States or the State of Indiana) are important documents. They represent the basic framework under which our government works and provide a broad description of rights retained by citizens. Constitutions are for the “big stuff” and aren’t the place to deal with the mundane. Thus, I want to look at one of the dumbest proposed constitutional amendments that I’ve ever seen:

(a) The right to hunt, fish, and harvest wildlife:

(1) is a valued part of Indiana's heritage; and
(2) shall be forever preserved for the public good.

(b) The people have a right, which includes the right to use traditional methods, to hunt, fish, and harvest wildlife, subject only to the laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly to:

(1) promote wildlife conservation and management; and
(2) preserve the future of hunting and fishing.

(c) Hunting and fishing shall be a preferred means of managing and controlling wildlife.

(d) This section shall not be construed to limit the application of any provision of law relating to trespass or property rights

The proposed amendment was sponsored by eight Indiana Republican legislators and was supported by Gov. Pence. Both the National Rifle Association and Safari Club International support the amendment while The Humane Society and the Hoosier Environmental Council oppose it. If adopted, this provision would be enshrined in Indiana’s Bill of Rights.

There are so many problems with this proposed amendment that it’s hard to pick a good place to start.

First, is this really the sort of provision that needs to be added to our Constitution? And, just in case you’re not sure, here are the titles of all of the other provisions in Indiana’s Bill of Rights, to which this “right” to hunt and fish would be added:

Inherent rights · Right to worship · Freedom of religious opinions · Freedom of religion · No religious test for office · No state money for religious institutions · Religion no bar to competency of witnesses · Mode of oath administration · Freedom of thought and speech · Libal, truth as defense [sic] · Search and seizure · Openess of the courts, Speedy trial [sic] · Rights of accused, Rights of victims · Double jeopardy and self-incrimination · Rights of persons arrested · Excessive bail or fines, Cruel and unusual punishment · Bailable offenses · Penal code and reformation · Criminal cases—Jury determination · Civil cases--Right of trial by jury · Compensation for services and property · Debts—Imprisonment exemption · Equal privileges and immunities · Ex post facto laws · Laws—Taking effect · Suspension of laws · Habeas corpus · Treason defined · Treason, proof · Effect of conviction · Right of assemblage and petition · Arms—Right to bear · Military · Quartering of soldiers · Titles of nobility · Freedom of emigration · Slavery—prohibition

If you’re curious about any of those rights, I encourage you to take a few minutes to read them (I bet very few Hoosiers have ever actually read even a small part of Indiana’s Constitution).

But anyway, does the right to “hunt, fish, and harvest wildlife” belong in that list? How does it compare to things like the right to worship, freedom of religion, search and seizure, double jeopardy, right of trial by jury, and slavery? Think about how our Bill of Rights would read: “… Section 36. Freedom of emigration. Section 37. Slavery—prohibition. Section 38. Freedom to hunt and fish.” Wow, what a modern state we must be!

Query whether there is any real concern that hunting, fishing, or harvesting wildlife are in jeopardy here in Indiana. Has anyone seriously proposed prohibiting hunting, fishing, or harvesting wildlife? And other than discussions about whether we should ban “hunting” animals who are in cages, have there been any real discussions about limiting the right to hunt, fish, or harvest wildlife? If not, why do we need to protect these “rights” and why do we need to do so in the Constitution?

Think of some of the other “rights” that we all know that we have but that aren’t in the Constitution: the right to procreate, the right to name our children as we choose (not true in some European countries…), the right to marry who we want (within limits … sorry … couldn’t resist), the right to speak whatever language we want, the right to play a guitar or piano, the right to put mayonnaise on your roast beef sandwich (though, if you do so, I may never speak to you again). I could go on and on. There are plenty of things that we can do that we haven’t bothered to put into our Constitution. Why are hunting, fishing, and harvesting wildlife so important? There are also many things that are important parts of our heritage that aren’t enshrined in our Constitution. Where is the right to play basketball?

I’m also curious about the meaning of the phrase “shall be forever preserved for the public good”. What does that even mean? Does it mean that the right is a public good or does it mean that hunting, fishing, and harvesting wildlife are a public good? And how are we supposed to preserve either of those things for the public good? If someone doesn’t want to fish or hunt , must we require them to do so? And by “public good” do we mean that the product of hunting and fishing is a resource belonging to the State and its citizens? And how exactly is killing an unarmed deer in the woods or putting a hook through a fish’s gills before throwing it back into the water a “public good”? How do either of those things benefit the public, generally, or me, in particular?

The right of people to hunt and fish includes “traditional methods”. What does that mean? I suppose that shooting animals with guns or bows and using lures for fish are traditional methods. But what about setting traps in the woods or stringing nets across streams and rivers? Those seem like traditional methods, too. So does this amendment provide a constitutional right to stretch a net across the white river or place traps in your local woods? (“Oops, sorry Mrs. Smith, we didn’t mean for little Billy to get caught in our beaver trap; we’ll pay for the surgery to amputate his foot…”)

Note further that section (b) is written quite poorly. Do the limitations set forth in subparagraphs (1) and (2) apply to “laws prescribed by the General Assembly” or only to “rules prescribed by virtue of the authority of the General Assembly”? That sort of ambiguity is likely to lead to disagreement and litigation and could easily have been addresses before the amendment was approved by the General Assembly.

More importantly, look at those two limitations: “(1) promote wildlife conservation and management; and (2) preserve the future of hunting and fishing”. As I read section (b), the only restrictions that can be placed on hunting or fishing are ones to “promote wildlife conservation and management” or “preserve the future of hunting and fishing” (whatever that may mean). Thus, a law that limits hunting or fishing in any way that does not promote conservation (or preserve the future of hunting and fishing) will be unconstitutional. In other words, a designated hunting season would probably be unconstitutional. Prohibitions on cruelty to animals being hunted would probably be unconstitutional. Clearly a law that prohibits hunting animals trapped in cages would be unconstitutional. And I suspect that a law prohibiting the use of dynamite to kill fish en masse would also be unconstitutional. I can even see laws written to preserve safety (e.g., wear an orange vest) being deemed unconstitutional because they might infringe on the right to hunt or fish (hey, an orange vest isn’t “traditional” is it?).

And what about laws that prohibit hunting in certain areas? I suppose that a law banning hunting in a local park might pass as one promoting wildlife conservation (presuming that the legislature that passed that law remembered to identify that as the reason for the law and not, say, the safety of park goers). But what about a law that prohibits the discharge of firearms within city limits? What about a law that prohibits hunting in residential areas? What about a law that prohibits my neighbor from shooting into my yard? Hopefully, the exception for trespass and property rights would cover that. Hopefully. But what will stop my neighbor from shooting squirrels in the common area of my neighborhood at all hours of the day? Oh, and can you hunt a stray dog?

Then, think about that next provision: “Hunting and fishing shall be a preferred means of managing and controlling wildlife”. Really? Why? Why do we want to prefer hunting and fishing over other forms of wildlife management (birth control, relocation, fencing, and other non-lethal methods, for example)? Why are we deciding today that hunting and fishing are preferred? And remember just how difficult it is to amend our Constitution. Perhaps in a few years, we’ll discover a better way to manage and control wildlife. But we may not be able to use that method so long as some people would rather use the “preferred” method of hunting and fishing. Is that really the sort of thing to put in our Constitution? Do we provide a constitutionally preferred method to treat cancer and manage diabetes? Do we provide constitutionally preferred books or religions?

Apparently, groups like the NRA believe that:

Sportsmen have been under attack for many years by well-funded, national anti-hunting groups who demonstrate a clear disregard for both the cherished traditions of many Americans as well as responsible wildlife management in their drive to eliminate hunting and fishing.

Really? Really? So we should amend our Constitution? And query whether this is a true claim or if it is the same sort of “they’re coming to take your guns” fear-mongering at which the NRA excels. Perhaps more importantly, if a majority of Hoosier legislators, in response to the wishes of their constituents, want to impose additional restrictions on hunting or fishing, why shouldn’t we allow that? Are hunting and fishing really the sort of fundamental rights (like freedom from slavery or choice of marriage) that we need to protect in the Constitution (thus requiring a minimum of 3 years and 2 elections to change)?

This proposed amendment is a bad idea that addresses a problem that does not exist. It will create new problems, limit the ability of Hoosiers to protect themselves, and restrict our ability to change the law to reflect changing attitudes or technology. It may even be used as a way to counter efforts to enact additional gun control measures (“hey, you can’t require me to undergo a background check because if I fail the background check, how will I be able to hunt?”). In short, this amendment is nothing more than a ploy by the NRA and like-minded groups to encourage a particular hobby and to sell more guns.

Please vote no.


Back in 2011, the General Assembly passed a slightly different version of this amendment, but it was amended before being passed a second time. Here is the language of the original amendment that I wrote about:

The people have a right to hunt, fish, harvest game, or engage in the agricultural or commercial production of meat, fish, or poultry, which is a valued part of our heritage and shall be forever preserved for the public good, subject to laws prescribed by the General Assembly and rules prescribed by virtue of the authority of the General Assembly.

So what happened to the right to engage in agricultural or commercial production of meat, fish, or poultry? Why did the legislature decide that hunting and fishing were important rights but that agriculture wasn’t? I suppose that growing kale and raising a coop full of chickens doesn’t sell many guns for the NRA.

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Friday, September 30, 2016

Donald Trump and the Central Park Five

In April 1989 a brutal crime was committed in Central Park in New York City. A woman was raped and beaten nearly to death. Five teenagers, four African American and one Latino, were arrested and charged with the crime. A few weeks later, Donald Trump paid to run a full page advertisement in four New York newspapers:

Trump Central Park Five



What has happened to our City over the past ten years? What has happened to law and order, to the neighborhood cop we all trusted to safeguard our homes and families, the cop who had the power under the law to help us in times of danger, keep us safe from those who would prey on innocent lives to fulfill some distorted inner need. What has happened to the respect for authority, the fear of retribution by the courts, society and the police for those who break the law, who wantonly trespass on the rights of others? What has happened is the complete breakdown of life as we knew it.

Many New York families — White, Black, Hispanic and Asian — have had to give up the pleasure of a leisurely stroll in the Park at dusk, the Saturday visit to the playground with their families, the bike ride at dawn, or just sitting on their stoops — given them up as hostages to a world ruled by the law of the streets, as roving bands of wild criminals roam our neighborhoods, dispensing their own vicious brand of twisted hatred on whomever they encounter. At what point did we cross the line from the fine and noble pursuit of genuine civil liberties to the reckless and dangerously permissive atmosphere which allows criminals of every age to beat and rape a helpless woman and then laugh at her family’s anguish? And why do they laugh? They laugh because they know that soon, very soon, they will be returned to the streets to rape and maim and kill once again — and yet face no great personal risk to themselves.

Mayor Koch has stated that hate and rancor should be removed from our hearts. I do not think so. I want to hate these muggers and murderers. They should be forced to suffer and, when they kill, they should be executed for their crimes. They must serve as examples so that others will think long and hard before committing a crime or an act of violence. Yes, Mayor Koch, I want to hate these murderers and I always will. I am not looking to psychoanalyze or understand them, I am looking to punish them. If the punishment is strong, the attacks on innocent people will stop. I recently watched a newscast trying to explain the “anger in these young men”. I no longer want to understand their anger. I want them to understand our anger. I want them to be afraid.

How can our great society tolerate the continued brutalization of its citizens by crazed misfits? Criminals must be told that their CIVIL LIBERTIES END WHEN AN ATTACK ON OUR SAFETY BEGINS!

When I was young, I sat in a diner with my father and witnessed two young bullies cursing and threatening a very frightened waitress. Two cops rushed in, lifted up the thugs and threw them out the door, warning them never to cause trouble again. I miss the feeling of security New York’s finest once gave to citizens of this City.

Let our politicians give back our police department’s power to keep us safe. Unshackle them from the constant chant of “police brutality” which every petty criminal hurls immediately at an officer who has just risked his or her life to save another’s. We must cease our continuous pandering to the criminal population of this City. Give New York back to the citizens who have earned the right to be New Yorkers. Send a message loud and clear to those who would murder our citizens and terrorize New York — BRING BACK THE DEALTH PENALTY AND BRING BACK OUR POLICE!

Donald J. Trump

All five of the teenagers (who came to be known as the Central Park Five) eventually confessed, were tried, and convicted. The oldest (16 years old) was tried and sentenced as an adult. But because New York did not have the death penalty, the teens were spared execution.

Which is probably a good thing because all five were innocent of the crime for which they were convicted.

Another man eventually confessed to the crime and to other crimes that had been blamed on gangs of roving youth. His DNA matched that of the semen found in the victim and he knew details about the crime that the police had not publicized. Oh, the confessions of the teens? Right. Their confessions were obtained under duress, without counsel, without their parents (remember, they were minors), and were inconsistent. But the police, prosecutors, and jury all chose to ignore those inconsistencies and lack of DNA evidence tying the teens to the crime.

In 2014, well over a decade after the Central Park Five were finally exonerated, the New York City settled a lawsuit and agreed to pay the men $40 million dollars. Not surprisingly, Donald Trump was displeased by this and so he wrote an op-ed which was published in the New York Daily News:

My opinion on the settlement of the Central Park Jogger case is that it’s a disgrace. A detective close to the case, and who has followed it since 1989, calls it “the heist of the century.”

Settling doesn’t mean innocence, but it indicates incompetence on several levels. This case has not been dormant, and many people have asked why it took so long to settle? It is politics at its lowest and worst form.

What about the other people who were brutalized that night, in addition to the jogger?

One thing we know is that the amount of time, energy and money that has been spent on this case is unacceptable. The justice system has a lot to answer for, as does the City of New York regarding this very mishandled disaster. Information was being leaked to newspapers by someone on the case from the beginning, and the blunders were frequent and obvious.

As a long-time resident of New York City, I think it is ridiculous for this case to be settled — and I hope that has not yet taken place.

Forty million dollars is a lot of money for the taxpayers of New York to pay when we are already the highest taxed city and state in the country. The recipients must be laughing out loud at the stupidity of the city.

Speak to the detectives on the case and try listening to the facts. These young men do not exactly have the pasts of angels.

What about all the people who were so desperately hurt and affected? I hope it’s not too late to continue to fight and that this unfortunate event will not have a repeat episode any time soon — or ever.

As citizens and taxpayers, we deserve better than this.

So why do I bring up this incident and the aftermath? Because I think that a careful look at what Trump said (and didn’t say, I suppose) helps us understand what Trump really believes and how he might act as President.

Let’s start with is initial full page ad calling for the reinstatement of the death penalty. Not only that, though, but also calling for the death penalty against minors. First, it’s obviously a good thing that the teens weren’t executed (and that is precisely the reason that I do have serious concerns with capital punishment); after all, once a person is dead, it’s hard to say “oops, sorry” when the conviction is overturned and the person exonerated. I note, though, that in his 2014 op-ed, Trump never apologizes for demanding that the teens be executed or acknowledges what the ramifications might have been had New York met his demands.

It is also worth noting that Trump’s prediction that the teens “will be returned to the streets to rape and maim and kill once again” turned out to be wrong.

But then we get to the core of Trump’s position — and here is where Trump’s worldview really begins to get scary:

I want to hate these muggers and murderers. They should be forced to suffer and, when they kill, they should be executed for their crimes. They must serve as examples so that others will think long and hard before committing a crime or an act of violence. Yes, Mayor Koch, I want to hate these murderers and I always will.

Now I don’t really disagree with him at wanting to have negative feelings toward muggers and murderers, though I think “hate” is probably too strong a word; I’ll reserve that for other things (though of course each situation is fact dependent). But he wants them to “suffer”. Is that why we incarcerate criminals? As far as I’m aware, in many states the expressed reason for incarceration is punishment and rehabilitation, not to make the convicted criminal “suffer” (and yes, I do see a difference between punishment and suffering). Our Constitution specifically prohibits cruel and unusual punishment; I would argue that making criminals “suffer” because of our collective “hate” is precisely what the Constitution sought to prohibit.

Note further, Trump’s claim that he will “always” hate these murderers. Hmm. Does that hate continue even after they’ve been exonerated? Look closely at Trump’s 2014 op-ed where Trump continues to attack the teens: “These young men do not exactly have the pasts of angels.” In Trump’s world, are we supposed to be convicting, punishing (via “suffering”), executing, and hating people who don’t have “the pasts of angels”? What happened to innocent until proven guilty? Are we to continue hating people who have served their time in jail or who have shown honest remorse for their actions?

And then Trump tells us that he doesn’t want to “understand their anger”:

I am not looking to psychoanalyze or understand them, I am looking to punish them. If the punishment is strong, the attacks on innocent people will stop. I recently watched a newscast trying to explain the “anger in these young men”. I no longer want to understand their anger. I want them to understand our anger. I want them to be afraid.

Sadly, unless I’m mistaken, empirical studies demonstrate that punishment for certain types of crimes doesn’t act as much of a deterrent. More importantly, why did (does?) Trump not want to understand the anger being expressed via criminal act? To understand something isn’t to agree with or condone it. But to understand something may be the best way to try to counter it or prevent it. For example, if the anger is fueled by lack of opportunity or by terrible schools or by a sense of institutionalized racism, then aren’t those things that we, as a society, can and should address? If crime is an outlet when there isn’t any hope or when there aren’t any socially acceptable (and legal) activities for youth, then isn’t that something that we can try to alleviate? What if these teens had an opportunity to play in youth sports leagues, or receive good mentoring, or had schools from which they saw a path to graduation and eventual employment at a living wage? But if we’re not offering even those sorts of opportunity, should we be totally surprised at youthful anger?

Look, I don’t know what was going on in the minds of Central Park Five, whether they were guilty of other crimes, whether they were troublemakers or just kids in the wrong place at the wrong time, whether poverty and the like were the primary motivating factors in their behaviors, or whether they were evil. But it seems that just being angry, just wanting to punish, and not wanting to understand means that you don’t want to find ways to solve the problem at all. Punishment may be a balm for a raw nerve but it probably won’t stop the next criminal act motivated by the same underlying factors.

This point has application beyond just local crime, too. Re-read Trump’s words about not wanting to understand and wanting the criminals to be afraid. But this time, instead of thinking of a bunch of criminals in New York City, think of al-Qaeda or ISIS or even homegrown terrorists:

I am not looking to psychoanalyze or understand them, I am looking to punish them. If the punishment is strong, the attacks on innocent people will stop. I recently watched a newscast trying to explain the “anger in these young men”. I no longer want to understand their anger. I want them to understand our anger. I want them to be afraid.

Again, I would argue that understanding their anger (understanding, not accepting) is likely the first step toward stopping it. We’ve been punishing terrorists with bombs and missiles and troops. And they may, in fact, be afraid. But they haven’t stopped, have they?

Trump then asks rhetorically, “How can our great society tolerate the continued brutalization of its citizens by crazed misfits?” While he was characterizing violent teenagers as “crazed misfits” couldn’t his accusation be equally applicable today to mass shootings in our shopping malls and movie theaters? For that matter, couldn’t his accusation also be applicable to the shooting of unarmed, often innocent civilians, by the police? Or what about the bankers who allow the housing market to collapse (or to billionaires who cheered for its collapse) or companies who pollute our air and water? Somehow I doubt that Trump 2016 would recognize those comparisons with Trump 1989.

But then we come to the most damning sentence in Trump’s op-ed and the sentence that led me to write this post in the first place:


First, the Constitution doesn’t provide that rights end when someone becomes a criminal; just the opposite, in fact. The Constitution provides for a right to a trial by jury, a right to a speedy trial, a right against unreasonable searches and seizures, and perhaps most importantly, a right against cruel and unusual punishment. In the years since the Constitution was adopted, courts have recognized that suspects have to be told their rights (Miranda warnings), have a right to an attorney, and, if I’m not mistaken, if they are minors, have a right to the presence of their parents. The need for these rights should be self-obvious, but this is Donald Trump that we’re talking about so it’s quite possible that he just doesn’t get it or just doesn’t care.

So once again, take Trump’s claim that civil liberties end when an attack on our safety begins and imagine how he might put that into play as President. He’s already told us that he would reinstate the use of torture against terrorists, but of course the question of whether someone is a terrorist would not have been adjudicated at the time that the torture was being used, would it? He’s told us (including during the first debate) that he would reinstate the unconstitutional “stop & frisk” tactic and has even said that he wanted police to take guns away from “bad people” (again without any sort of prior adjudication of who is “bad”; I have to wonder if it depends on the color of their skin or the language that they speak).

When you combine the ideas of making criminals “suffer” with a claim that they lose their “civil liberties” then doesn’t Trump’s America begin to look like one of those Third World hellholes he seems to already believe America to be? The Central Park Five did have civil liberties and they were still wrongly convicted. What would happen if we didn’t grant accused criminals their civil liberties in the first place? Does Trump’s call for the reinstatement of torture only apply to terrorists or would he support torturing accused violent criminals to obtain information or confessions? How would we explain years of suffering at the hands of the state if a criminal was eventually exonerated? But that is the America that Trump was demanding in 1989 and, seemingly, still wants today.

Trump also relates a quaint tale from his youth of police roughing up a couple of bullies. This anecdote prompted me to wonder about three things: First, why didn’t Trump’s father intervene? Why didn’t he teach young Donald how to stick up for others? Did the elder Trump sit idly by while the waitress was being harassed instead of asking the bullies to stop? And if not, what kind of lesson did that teach young Donald (and was he orange as a child…)? Second, why didn’t the police arrest the “thugs”? Why put them back on the street to terrorize the waitress (or others) again? And third, why is it that Trump’s “feeling of security” only came about from the police using force? Perhaps force, along with money, are the only things that Trump really understands. We know that he seems not to object by the use of force by police; after all, witness his criticism of complaints of police brutality in the very next paragraph where he seems to be demanding that police be “unshackled” from prohibitions on the use of unnecessary force. Would the event have been less had the police simply talked to the bullies to defuse the situation or was it the use of force, even if only minor force, that made an impact upon Trump? Maybe that’s why he has been so quick to advocate violence against protestors at his rallies.

And what exactly did Trump mean when he talked about “citizens who have earned the right to be New Yorkers”? Was he suggesting that some people, oh, I don’t know, maybe those who have darker skin, haven’t “earned the right” be New Yorkers? What does one do to “earn” that right?

Moving on to Trump’s 2014 op-ed, the first thing that strikes me is his claim is that “Settling doesn’t mean innocence”. That’s true. Of course, with regard to the Central Park Five, the confession of another man who had specific knowledge of the crime and who was tied to the crime by DNA evidence probably does mean innocence. Moreover, it’s worth noting that when Trump spoke during the first debate about the lawsuit against for racial discrimination in housing, he talked about settling without an admission of guilt as if that settlement did, indeed, prove his innocence. So which is it? Does a settlement prove innocence or not? You can’t have it both ways.

It’s also interesting to see how, in 2014, Trump attributes all sorts of incompetence, political meddling, leaks, and so forth to the handling of the original case, yet way back in 1989, he didn’t seem worried about anything getting in the way of his rush to judgment and demand for the death penalty, did he?

Trump was also highly critical of the settlement, both in terms of the case being settled at all and the amount. Of course, in reaching that settlement, the City likely had access to all sorts of information relating to the likelihood of success in the litigation and the possible damages that could be assessed; perhaps a $40 million settlement seemed reasonable given the possible outcomes. Apparently, Trump knows more about this case than did New York City officials, much like he claims to know more about ISIS than our generals.

Notice, too, what Trump does not say or acknowledge in his op-ed. He doesn’t apologize for demanding that five innocent teens be subject to the death penalty. He doesn’t acknowledge that the teens were wrongly convicted or that they spent between 6 and 13 years in prison for a crime they didn’t commit. He doesn’t acknowledge that the police acted illegally by coercing minors into giving false confessions. And of course he doesn’t acknowledge that his own actions and accusations may have poisoned the jury pool or inflamed public sentiment in a way that pushed police and prosecutors to act in a certain way and not consider other possible perpetrators or inconsistences. But if there’s one thing that we’ve learned watching Trump’s bid for the White House, it’s that Donald J. Trump is never, never, NEVER at fault if something goes wrong. Nope. Trump was the shining light of truth and goodness when he demanded that innocent teens be executed. Let’s Make America Great Again!

Furthermore, and this is a bit afield, but I want to look at the last part of the opening paragraph of Trump’s 1989 ad. However, instead of thinking about the police and how they should respond to violent criminals, think instead about New York billionaires who engage in racial discrimination in housing and employment, who establish fake “universities” to defraud people out of their retirement, who sue and get sued at almost unprecedented rates for, among other things, refusing to pay for services rendered and goods delivered, and, when things don’t go their way in the courts, either settle the cases or argue that the system or the judges are biased, who like to plaster their names on everything, seemingly in a need to satisfy and unquenchable ego, who bribe public officials with money taken from a charity and who appropriate charitable funds to enrich themselves, and who are “smart” because they don’t pay taxes or who circumvent the law to do business with Cuba despite an embargo they claim to support. With that in mind, read Trump’s words again (emphasis added):

who had the power under the law to help us in times of danger, keep us safe from those who would prey on innocent lives to fulfill some distorted inner need. What has happened to the respect for authority, the fear of retribution by the courts, society and the police for those who break the law, who wantonly trespass on the rights of others? What has happened is the complete breakdown of life as we knew it.

Was Trump anticipating the need for the FBI and the New York Attorney General (and others) to keep Americans safe from Trump?

Finally, thinking back to Trump’s actions in the Central Park Five matter, ponder for a moment how a President Trump might respond in the event of another tragic event. Would he be calling for calm with pleas to allow the police to complete their investigation and for the justice system to work … or would he be atop the leading the howling masses with the proverbial pitchfork, stoking and inflaming the fires of revenge and retribution, facts and the rule of law be damned?

Please don’t allow Donald Trump — a racist, xenophobic, fascist — to become President. Please.

Update October 7, 2016: I just came across an article on CNN referring to a statement that Trump gave this week to a CNN reporter:

“They admitted they were guilty,” Trump said this week in a statement to CNN’s Miguel Marquez. “The police doing the original investigation say they were guilty. The fact that that case was settled with so much evidence against them is outrageous. And the woman, so badly injured, will never be the same.”

Now think about that for a moment. Trump still believes that the five teens were guilty even though another man confessed to the crime and his DNA matched the semen of the woman’s rapist. And Trump still looks to the confessions of the teens even though they were obtained under duress while the teens were deprived of certain constitutional rights. Hmm. So what does it say about Trump that he ignores exonerating evidence (maybe he doesn’t understand DNA?) and is willing to accept coerced confessions? Do we really want that sort of person to be President?

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