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Why the NFL kneeling ban is especially bad: five things that aren't reasons, and one thing that is.

The NFL's decision to fine teams when a player kneels during the national anthem is a particularly bad policy, one that the American public  should strongly oppose.

Let's be clear on the reason for its particular badness, and why it particularly deserves our scorn.

 

Photo: Keith Allison

I give you:  five things that are not reasons, and one thing that is.

 

(1) Has the policy earned our particular scorn because it requires certain players to violate their own consciences, by making them express a certain message even if they do not agree with the message?

No. 

This cannot be the reason, because it's not quite accurate.  Under the new rule, players are permitted to remain in the locker room during the national anthem.  The NFL says they will not punish its employees merely for declining to participate in the NFL's preferred expressive act.  The punishment is exacted only if the employees engage in a particular different expressive act.   The employees are not required to express the NFL's message; they are, rather, forbidden to express a different one.  

Is there a categorical difference?  Coming from my philosophical background, I say yes.  The duty to speak the truth, like any positive duty, does not compel us at every moment; for proportionate reasons, we sometimes rightly refrain from speaking and acting in truth.  This is different from our duty not to tell lies, which is always in force.  The players are not, technically, compelled to violate their consciences, because they are not compelled to engage in the NFL's preferred expression.  It would be a different matter if the rules did not permit players to abstain; but they do.

That permission to abstain outright from appearing during the anthem also probably sufficiently (under employment law) accommodates players who might have a religious objection to honoring the flag.

We shall have to look for another reason.

 

(2 )Has it earned particular scorn because it violates the players' First Amendment rights?  

No. It does not violate them.

The First Amendment protects us from government-compelled speech (including acts that signify meaning, like "stand and show respect.")  The NFL is not the government, and so the First Amendment doesn't constrain it, but rather protects it as it protects all our businesses and employers.  Private entities, such as the NFL, cannot violate the First Amendment by requiring a certain kind of speech as a condition of employment, nor by prohibiting a certain kind of speech.  So even if the rules did compel the players to be on the field standing during the anthem, it would not be a violation of the First Amendment.

 

(3) Even if the NFL has benefited from taxation structures and public funds?

No.  It does suggest a means by which the scorning public can react by withdrawing government support or by making that support conditional on different behavior; but government support doesn't turn them into the government.  And so the special indignation that Americans should properly have towards First Amendment violators is still not in play.

This isn't the reason.

 

(4) Has it earned particular scorn because the policy is an example of bad faith on the part of management in a labor dispute?  

No. 

It's still unclear whether any aspects of the NFL's policy violates the collective bargaining agreement.   The players are unionized, and the union can make use of an established process to challenge perceived violations.   In this sense, it's no different from any other rules that an employer may try to push through only to find later that the collective bargaining agreement will not permit it; and perhaps, even if challenged, the policy will be upheld.  Furthermore, if it is upheld, the players have another recourse: can bring the issue to the table the next time collective bargaining begins.   So:  this isn't the reason why we should be particularly scornful of this rule.

 

(5) Has it earned our scorn because it represents a kind of retribution for unpopular or offensive speech?   

No.  The mere fact that it is retribution for speech is not enough to earn most people's scorn.

It would seem that m0st of us do not scorn people who exact retribution from speakers on account of disliking the speech, provided that the retribution is itself legal.  Recall this xkcd cartoon, which by all accounts was shared by people across the political spectrum:

This cartoon clearly asserts, and even honors, a right of private actors to exact retribution for speech that the private actors view as wrong.

The value expressed by the cartoon, like so many clearly stated values, cuts multiple ways.  Just as I don't have to listen to or host speech that I think is bullshit---just as I have a moral right and a First Amendment right to react honestly with my own speech and meaningful acts --- the NFL has that, too.  The NFL doesn't have to listen to what protesting players say; it doesn't have to host them while they say it.  They are not shielded from criticism of their protests, nor from financial consequences; they may be yelled at, boycotted, fired; if the NFL thinks they are being assholes, the NFL gets to show them the door.  

No, in fact, the NFL, like any other business, is itself protected by the First Amendment.  They get to send the message they want to send.  That's their right of expression.

The NFL's policy is an expressive act.  The primary effect of its permitting players only a single visible response to the United States flag and national anthem is not, actually, to silence the players.   I mean, they're trying to, but not very effectively. 

No, the primary effect of this policy is the promulgation of a specific message that the NFL itself wants to express.

And that's where we come to the reason why the NFL policy deserves our particular scorn:

 

The reason the NFL policy deserves our particular scorn is because of the content of the NFL's own message.

By enacting this policy, the NFL says:

• There is only one way to love, to will good for, to be grateful for, this country. 
• There is only one way to respond to a symbol that represents the country's values.
• Only uncritical love for the republic counts as respect, or as patriotic, or as honorable.
• To peacefully demonstrate a desire for justice for all fails to respect the republic for which it stands.

And there's something especially bad about this message.

It is not just a political message.

It is an anti-American message.  

It is uniquely anathema to fundamental American values.

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Indeed, employers have the right to send all sorts of messages.   They can and do send messages that are false, dangerous, harmful, or downright evil.  It happens all the time.   Of course, the thing about merely bad speech is that honest people can honestly disagree about what constitutes bad speech.  Some businesses say things that I think are good and other reasonable people, who come at life from a direction different from mine, think are wrong.  Other businesses say things that I think are wrong and other reasonable people think are good.   I can object, using my own speech.  They can object, using theirs.  This is, generally, okay, and consistent with the fundamental values on which the nation was founded.  It is one of the ways that we give and take and push and pull against one another's ideas, a way we come to some equilibria where we can live next to one another in relative peace and freedom to go our own ways.

But---and I get to say this, because it's my thought---

This message? It is not okay, and it is fundamentally un-American, precisely because it attempts to claim monopoly over American-ness.

The NFL is trying to speak for the whole country, and trying to say what love of the country means, and how it must be expressed.

It's trying to control the narrative about how to love, and how not to love, the United States.

And it's using the symbol of the entire United States to do it.

They are trying to enact a lie in my name, and in the name of everyone in the country.

I say we should not leave the NFL's message unchallenged. 

I say we should start showing them the door.

 

 

(Photo of San Francisco 49ers kneeling by Keith Allison under a Creative Commons license.)

Charges in the Philando Castile shooting.

Earlier this year I wrote a couple of posts in the aftermath of the shooting of Philando Castile, a cafeteria supervisor in a St. Paul elementary school.  Castile was a concealed carry permit holder who was shot during a traffic stop by a panicked policeman in Falcon Heights, not far from where I used to live at the edge of Minneapolis.  

(First post:  Not so much about Mr. Castile as about bumper stickers and jumping to conclusions.)

(Second post:  About Mr. Castile -- appropriately -- being laid to rest from the Catholic Cathedral of St. Paul at the request of his mother.)

"Mr. Phil," as the kids called him, dressed as the kids saw him every day in the school cafeteria. Photo: Family/Facebook

There is an update in the case.  Ramsey County Attorney John Choi announced today that the officer who killed Mr. Castile is to be charged with second-degree manslaughter in Mr. Castile's death, as well as -- because of the woman and child who were in the car -- two felony counts of dangerous discharge of a firearm.

 From the linked Minnesota Public Radio article:

Ramsey County Attorney John Choi announced Wednesday that he has charged police officer Jeronimo Yanez in the July 6 killing of Philando Castile during a traffic stop in Falcon Heights.

..."I know my decision will be difficult for some in our community to accept, but in order to achieve justice we must be willing to do the right thing no matter how hard it may seem," Choi said while announcing the charges.

Castile, a 32-year-old school cafeteria supervisor, was shot by Yanez after he was pulled over during a traffic stop in Falcon Heights on the night of July 6.

Minnesota law justifies the use of deadly force by a police officer, Choi said, only when it's necessary to protect the officer or others from great bodily harm or death. He said the use of Yanez's use of force was not justified.

...Choi went over the timeline leading up to Castile's death. He said Yanez signaled to another officer that he was pulling Castile's car over because his "wide-set nose" matched the description of a robbery suspect.

Yanez turned on his squad lights, and Castile pulled over eight seconds later. It was just one minute later that Yanez shot Castile seven times, killing him.

Castile handed over his insurance card and "calmly" told Yanez that he had a firearm. Yanez said, "OK, don't reach for it then." Castile told Yanez he wasn't pulling out the gun. Yanez screamed, "Don't pull it out," and took his firearm out of the holster. He fired.

"Officer Yanez pulled his left arm out of the car and then fired seven shots in rapid succession into the vehicle," Choi said. "Philando Castile moaned and said his final words, 'I wasn't reaching for it.' "

"No reasonable officer, knowing, seeing and hearing what Officer Yanez did at the time, would have used deadly force under these circumstances," Choi said. "The totality of the circumstances indicate that Officer Yanez's use of deadly force against Philando Castile during the July 6 death was not necessary, was objectively unreasonable and was inconsistent with generally accepted police practices."

I am seeing mostly praise of the DA's office, with some anger that the charge is manslaughter instead of murder or that the maximum sentence (ten years in prison) is too low -- it's on the order of some sentences for nonviolent sale of drugs here in Minnesota.  

I can't really speak to the sentencing, but reading the Minnesota statutes defining second-degree manslaughter versus the ones defining homicide, it strikes me that the charge is correct if the facts are as stated.  

• Second degree manslaughter is defined in MN as causing the death of another by "culpable negligence whereby the person creates an unreasonable risk, and consciously takes chances of causing death or great bodily harm to another."
• Second-degree murder requires intent to kill, for which I doubt there's evidence, or else that the homicide took place during commission of a crime or in violation of a restraining order. 
• Murder in the third degree requires "perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life" -- you could certainly make an argument that the shooter appeared to act without regard for Mr. Castile's life, but it's tough to prove that.
• An argument that the shooter acted in self-defense requires a finding that the shooter reasonably believed deadly force was necessary to prevent grave harm or loss of life -- and the DA affirmed today that he believes the officer's fear was not reasonable.

This is a very, very sad case.  I am glad to see that it was investigated thoroughly and that charges were brought.  Many people harshly criticized Ms. Diamond Reynolds, Mr. Castile's girlfriend whose four-year-old daughter was with them in the car, for having the presence of mind to send out live-streaming video of the shrieking officer and the bleeding, dying man in the front seat.  It was as if her cool head and quick thinking was itself somehow offensive, a proof of guilt or of an agenda.  That video -- along with some from the officer's dash-cam -- turned out to be crucial evidence that led to the DA's bringing charges.

Community reporting works.

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One of the things that disturbed me about the media coverage of Mr. Castile's death was the relative silence of gun rights organizations, especially the NRA.  The story that quickly spread was one of a man who had a legal permit to carry a weapon in Minnesota, was not carrying in violation of any laws, and who did everything he was supposed to do when pulled over for the traffic stop.  Surely the apparently unprovoked killing of a cooperating concealed-carry permit holder by a jumpy cop should raise the ire of Second Amendment groups, as it's definitely going to have a chilling effect on the exercise of Second Amendment rights.  

Yet the NRA took two days to make a statement at all, and when it finally did, it made a very weak one.  This left a lot of people, including me, wondering if they were only prepared to fight for the rights of white gun owners.

The local group Minnesota Gun Owners Caucus did better, releasing a statement soon after Mr. Castile's death and talking to local news reporters today.  

Minnesota law does not require permit holders to reveal they are carrying a gun unless they are asked by police....Castile did not say he had a permit, but he did say he had a gun. In general, that is what firearms instructors teach, according to Rob Doar, a leader of the Minnesota Gun Owners Caucus and a firearms safety instructor.

Castile did not reach for a gun, did not move his hands and did not resist. Doar says Castile appeared to do everything by the book.

“I recommend that you turn the car off, you turn the lights on in the vehicle, you keep your hands on the wheel,” Doar said. “I do believe that Philando Castile acted as a responsible permit holder.”

I'm still not seeing a lot of media reports covering the angle of "Do people who aren't white have full access to their Second Amendment rights?"  Let's hope that some news organizations start looking into it during the upcoming -- probably high-profile -- manslaughter trial of Officer Jeronimo Yanez.

Administration and reception.

Canon lawyer Ed Peters writes at First Things about the appropriateness of denying Communion to Catholics engaged in public behavior that would seem to exclude them. Mr. Peters points out that this issue has been around for quite a long time, and was first raised in the case of Catholics who have been divorced and are now living in civil marriages.

This problem of irregular public relationships has certainly not gone away, but now in the spotlight is the case of Catholic politicians who ardently support abortion, euthanasia, the redefinition of marriage to include unions that cannot possibly be marital in the sense that Catholics understand them, and other evils that (unlike harm-causing acts such as warfare and executions) cannot be reconciled with any interpretation of Catholic moral doctrine.

Many Catholics who support untraditional marriages, Pelosi’s near-perfect pro-abortion politics, or Rainbow Sash-style activism profess outrage at seeing the Eucharist “used as a weapon” against fellow Catholics. Others, however, are appalled at seeing such markedly contrarian Catholics take Holy Communion.

Mr. Peters states that he, along with Raymond Cardinal Burke, holds the view that sometimes a minister has the duty to withhold Holy Communion. He adds, "Against Burke’s view and mine stand some scattered negative episcopal demurrals (Cardinals Roger Mahony, emeritus of Los Angeles, and Donald Wuerl of Washington, D.C., come to mind) and some short essays by academics." Here we have Catholics disagreeing in what seems to be good faith about a matter of public import; Mr. Peters, the canon lawyer, is going to argue his side from the text of canon law.

I think Mr. Peters puts his finger on the point of contention (at least among Catholics) here:

Participation in Holy Communion is achieved by two related but distinct acts: the action of a member of the faithful in seeking Communion (reception) and the action of the minister in giving Communion (administration). These two actions are not only performed by different persons, they are governed by different canon laws. Virtually all confusion over Communion can be traced to the failure to keep these two actions distinct.

Canon 915 governs administration; Canon 916 governs reception.

Mr. Peters makes a good case that, yes, ministers have a duty to withhold Communion from certain individuals under certain circumstances, and the highly publicized cases of Catholic politicians who are either living in irregular unions or fervent supporters of legalized abortion have largely fallen under these circumstances. But he also points out that the conditions under which Communion may be withheld are, indeed, narrow.

...[T]he conditions requiring Communion to be withheld must be simultaneously satisfied before the minister may licitly withhold the Eucharist from a Catholic approaching for it publicly. To invoke canon 915 [the conditions requiring Communion to be withheld] against a member of the faithful who does not satisfy all of the terms of canon 915 is....to disregard the plain text of the law and, as St. Thomas warned centuries ago, to violate the fundamental rights of the faithful.

....[I]f a member of the faithful approaches Communion publicly and gives no indication of intending an external act of desecration, even the minister’s moral certitude that the would-be recipient suffers grave moral disarray does not permit him to withhold Communion. His grief at being a material cooperator in sacrilege may be joined to our Lord’s grief at so many unworthy receptions of himself.

This is important because the public outcry against withholding Communion has often been along the lines of "Doesn't the Church know that everyone is a sinner? If they start withholding Communion from people who live in second marriages or have the 'wrong' political views now, maybe they'll withhold it for something else less serious next!"

It is important to be clear that the minister does not get to judge the entire conscience or conduct of the Catholic who approaches for Communion. The only judgment he gets to make is what is outlined in Canon 915. Ambiguous cases, Peters argues, "must be decided in favor of receiving the Sacrament."

One might argue that it is silly to stress the limitations of Canon 915 when, it seems, the problem we are living in is one of laxity, not overzealousness, in protecting the Sacrament from sacrilege and in protecting the faithful from scandal.

I think it is important, though, to point out that the rules, properly enforced, contain limitations which are meant to protect the right of the faithful to receive the sacrament. It is also scandalous to give the impression that bishops and pastors have the power to unilaterally and arbitrarily decide to withhold the sacrament. They do not.

That some of them appear to unilaterally and arbitrarily decide not to withhold the sacrament -- in situations with no ambiguity -- contributes to the impression of lawlessness. We would all be better off if we stuck to the text; it is there for a reason, in Catholic jurisprudence just as in civil jurisprudence.

 

Grabbiness.

Attorney general Eric Holder recently gave a speech defending the extrajudicial targeted killing of American citizens overseas.  Emily Bazelon at Slate writes:

We know now that the Obama administration thinks its lawyers don’t have to get a judge’s approval before a top government official makes the call to assassinate someone. As Holder put it, " 'Due process' and 'judicial process' are not one and the same, particularly when it comes to national security." ...Holder didn’t explain how the administration arrived at the conclusion that due process within the executive branch is enough. He has refused to release the legal memo from the Office of Legal Counsel at the Department of Justice that must lay out how the administration got to here from there—the meat that was missing from his speech. And he didn’t say how the government arrived at the conclusion in September that it was OK to kill not just Anwar al-Awlaki, the radical American cleric in Yemen whom the government says is linked to underwear bomber Umar Abdulmutallab, but also Awlaki's son, Abdul Rahman al-Awlaki, who was also an American citizen.

Emily Bazelon is hardly a right-wing critic of the Obama administration, I might add, and Slate is no Fox News.  

I want to draw your attention to one particular point that Ms. Bazelon makes in her piece:

... [I]f the Obama administration claims this kind of extra-judicial power for a few cases, what’s to stop the next president from expanding upon it—and citing this step as precedent for taking others that Obama wouldn’t countenance?

Indeed.

It's really gratifying to see this in print.

This is the point that some of us have been trying to make about the infringement on religious freedom that is inherent in the HHS contraceptive mandate. 

I'm not surprised that there are a lot of people who are happy to stick it to the Catholics here in exchange for "free" pills.  Oddly enough the same people seem to be fretting about the horrible theocracy that would be a Strawmantorum presidency.   So, like, I have to ask -- does it even occur to people that someday, a right-wing Christian might make it into the White House again?  

And, while I do not expect that a right-wing Christian president necessarily would stomp all over non-Christians' religious freedoms, I wouldn't be entirely shocked if he or she tried to.

So, wouldn't it make sense not to set the precedent now?  Not out of sympathy to Catholics or other anti-choice weirdos, but just out of simple self-preservation, or perhaps.... deference to Constitutional liberties?

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Let's talk mandate some more, this time the individual mandate.  We have the same problem outside the religious sphere, with the rather unprecedented infringement on economic freedom that is inherent in the very idea that the government can force you to buy a commercial product.

This is another thing I don't get.  It's extremely hard to resist concluding that Democrats think this is a good idea... because the person in the White House has a "D" after his name.

Okay, maybe they think it is a good idea because they like the thing that the person with the D after his name wants to force people to buy.  I can understand that.  I like health insurance.  I have some.  I am happy to have bought it.  I think it's a good bet for most people, most likely.  

But it's like nobody has ever heard of "precedent."

If this administration can force you to buy one thing, then the next administration can force you to buy another kind of thing.

This is why people need to take a step back and think about the generalities.  Democrats want to grab power so they can do certain things that Republicans dislike.   Republicans want to grab power so that they can do other things that Democrats dislike.  There would seem to be bipartisan interest in preventing executive power-grabbing.  And yet, our team colors get so much more attention.

Emily Bazelon, to her credit, noticed.  The precedent of executive secrecy that surrounds Holder's claim on the power to perform extrajudicial executions of citizens abroad -- note, this means without trial -- were set during the Bush 43 administration.

 [W]hen the executive branch won’t release the legal memos that underlie its decision-making, we’re blocked from evaluating how strong or weak the arguments are. When the federal government takes a bold and new step like this, testing the boundaries of the Constitution, it’s crucial for Holder and his lawyers to explain how and why. Instead, we’re being asked to take the wisdom of the president and his national security apparatus for granted.

That’s a precedent that the Bush administration set in the bad old days of Attorney General John Ashcroft. It was this Department of Justice that produced John Yoo’s legal memos approving waterboarding and other interrogation techniques that amount to torture, the finding that the Guantanamo detainees weren’t prisoners of war protected by the Geneva conventions, and approved of warrantless wiretapping. Yoo’s legal innovations were dizzying—to put it kindly—and the leaking of his memos in 2004 was the first step toward official Department of Justice repudiation of them.

I am a fan of transparency, and also a fan of judicial process, and consequently was no fan of George Bush's foreign policy in this area.  I acknowledge that national security needs make for a disturbing gray area both in transparency and in dealing with non-state military actors, but surely some accountability to the nation, through committees of our elected representatives, can be carved out even of our most pressing security needs.  

I am not terribly surprised to see Bush's successor following in his footsteps here.  Democrats and Republicans may have significantly different ideas about how best to command a military, manage an economy, and lead the nation, but it is pretty obvious that politicians of all stripes never saw a power they didn't want to grab and hang onto for dear life.

"When Ordinary Parenting Practices Can Land You in Court."

That's the title of a blog post at the Volokh Conspiracy today.  I encourage anyone interested in the "free-range kids" movement to read the post and then click through to the legal article by David Pimentel that the blogger is referring to.  It's called, "Criminal Child Neglect and the Free Range Kid:  Is Overprotective Parenting the New Standard of Care?"

Lots of good stuff in there -- the whole article is worth reading.  A lot of problems are caused by vague statutory language that requires "reasonable" behavior (who decides what is reasonable?) and that implies parents are criminally negligent for not eliminating certain risks to their children.  It appears that jurors are regularly ready to punish parents who have different parenting styles that appear merely substandard to the jurors.  Jurors and prosecutors who are themselves parents of only one child appear readier to punish parents who are accused of neglect because they left one child in the care of another (say, a three-year-old in the care of a twelve-year-old sibling).  If you think the mommy wars are bad enough when they are outside the courtroom, imagine being a mommy accused of neglect, about to be tried by a jury of her peers!

Homeschooling history.

I taught a fun 20th-century U.S. History session to the 10-, 11-, and 12-year-olds today:  the legal history of homeschooling.

We just finished a unit on civil rights movements of the 20th century, a unit that encompassed the school segregation cases, the larger civil rights movements, women's suffrage, and the disability rights movement.  A lot of our emphasis had been on the particular legal means by which various forms of institutional discrimination were ended or mitigated. So, for example, we watched  the TV miniseries Separate but Equal, which is like a courtroom drama centered on Brown v. Board of Education.  We talked about the passage of the constitutional amendment that enshrined women's right to vote.  We talked about how the Americans with Disabilities Act -- a piece of congressional legislation -- was fought for and passed, and how its interpretation continues to be refined by the courts.  

Having spent a fair amount of time on constitutional law, I was looking for a sort of a "capstone" lesson that would talk about one issue that's concrete to them as kids.  I found that a number of children's and teens' books about government and civics cover the "students' rights" cases, presumably because adolescents in public schools are interested in their own free speech and privacy rights with respect to the government entity that's most closely intertwined with their lives -- the government school itself.

But since our kids aren't in a government school, or an institutional school of any kind, I didn't think that would be quite so interesting to them.  So instead I decided to teach them about the legal status of homeschooling, and how that right was won in the twentieth century.  It took me a couple of hours of Internet research, and skimming through one or two books, to find the information I needed to lead the discussion.  I hardly counted the cost, because it was interesting to me personally anyway.

I began by writing on a white board a series of dates that the kids have memorized, keyed to particular events we've studied:

• 1492
• 1776
• 1860
• 1865
• 1900
• 1918
• 1929
• 1941
• 1945
• 1989 (fall of the Berlin Wall, in case you're wondering) 
• 2001

 I asked them to tell me about where on the timeline the first public school in America was founded.  They correctly guessed, "Between 1492 and 1776" (for the record, it was Boston Latin School, and it was founded in 1635).  Then I asked, "About when did it become common for most kids in the U. S. to attend some kind of an 'away school?'"  (I accepted "around the turn of the century.")  We talked about when compulsory education laws became commonplace (a little bit later than that) and then when enforcement became stricter (still later, possibly not till the forties, and not uniform across states).  And then I asked, "So when were parents educating their own children at home?"  Correct answer:  all along, although for a period of time -- between maybe 1900 and 1980 -- they would be breaking the law in some set of states. 

(In retrospect I should have stuck to Minnesota for the timeline of compulsory education laws, because I did a lot of hand-waving and talking about "most states" and "many states" and the like.  Every state has its own timeline here and the overlap is not neat and tidy.  If you adapt this lesson, I think it's probably a good idea to stick to your own state.)

 So then I gave a short explanation of three landmark U. S. Supreme Court cases that set important precedents:

Meyer v. Nebraska (1923), which established that there are limits on the state's power to regulate how children are educated.  (Specifically, it struck down a xenophobic -- mainly German-phobic -- Nebraska law banning foreign language education.)

Pierce v. Society of Sisters (1925), which established that a state cannot require that all children attend government-run schools; the right of private schools to operate, and of parents to fulfill compulsory-education obligations by sending children to private schools, was established.

Wisconsin v. Yoder (1972), the most significant "Amish school case," which established that certain applications of a state's power to compel attendance at schools may impermissibly violate parents' right to direct the religious upbringing of their children.  (After I finished reading The Yoder Case by Peters -- to myself, not to the kids --  I decided that Yoder is actually pretty complicated to grasp.  I tried to keep it simple for the kids, and get the point across that there's a tension between compulsory education laws and religious freedom, and in this case the Court came down on the side of religious freedom.)

The children enjoyed discussing the legal principles of the cases, so we spent some time just talking about the details.  For example, they were utterly amazed that a state would decide it was dangerous to teach children a foreign language.  (Direct quote from the Nebraska decision that upheld Meyer's conviction before it went to the U. S. Supreme Court:  "Other citizens, in their selection of studies, except perhaps in rare instances, have never deemed it of importance to teach their children foreign languages before such children have reached the eighth grade.")   As for Yoder, I would have really loved to delve into the personal stories of the people behind the case; I wish there was a children's book about the Yoder case.  It would make a really great picture book.  Seriously.

I wanted to make it clear that homeschooling still comes under legal attack from time to time, so I shared with them two 2008 articles from Time magazine's archives: "Criminalizing Homeschoolers" and  "A Homeschooling Win in California."  

 Then I explained how the Minnesota compulsory education law used to go.  This is from Esbeck, Journal of Law and Religion, Vol. 4, No. 1 (1986), pp. 211-240:

The Minnesota compulsory education statute required students not attending public schools to be taught by "teachers whose qualifications are essentially equivalent to the minimum standards for public school teachers of the same grades or subjects."

I read that quote to the children and explained, "If the parent didn't have the right qualifications, the superintendent could tell them they had to send their kids to a school or at least to a teacher who did.  If the parent refused, they could be charged with a crime."  I let that sink in and then asked, "Okay, so how could a parent become qualified to teach her children at home?"

They made me read it again and then guessed... "They have to be a teacher."  "They have to have gone to college."  "If they're teaching, say, the second grade, then they have to at least have done second grade."  

"It isn't obvious, is it?"  And then I went on to explain about Minnesota v. Newstrom, the 1985 case that struck down the existing compulsory education law as "impermissibly vague" and overturned homeschooler Jeanne Newstrom's criminal conviction.  After that, the Minnesota legislature crafted clear guidelines outlining how an ordinary person could fulfill Minnesota's compulsory education law through home education.  (Those guidelines survive today with minimal changes in MN Statute 120A.22.)

 Then they wanted to know how we qualified to be teachers, so we gave them a quick summary of the rules, including the list of subjects we have to teach and our reporting requirements.  After that I asked them some questions:  

• Do you think the government should require us to teach you a certain number of days per year?  
• How about a minimum number of hours per day?
• Should they tell parents exactly which subjects they have to teach?
• Should homeschooled students be allowed to get a job for money during the hours when most kids are in school?
• Should homeschooled students be allowed to join the public school band or football team?

Interestingly enough, the kids all seemed to be supportive of heavy regulation!  I think this is because at the ages of 10-12, kids are far more concerned with fairness than they are with freedom, and they think it is only fair that our homeschools should be held to the same standards as kids in institutional schools.  

Also, they've never really had to deal with paperwork.  It's easy to support heavy regulation when you don't have a grasp of the cost of enforcement.

When they were discussing how "qualified" a teacher should be to teach a subject, I asked these kids, whom I also instruct in Latin:  "So how much Latin do you think I learned in school?"  That trap didn't work, since they already knew that the answer was "zero."  But I pressed them:  "I don't have any qualifications in Latin. But I'm not doing a bad job, right?  How is it that I'm able to teach you adequately without any qualifications?"

My 10-year-old:  "Duh!  You have a teacher's manual."

I like to think that it takes more than that, but it made both Hannah and me smile.

Challenge.

On my post about explaining abortion to kids in the context of American history education, in which I wrote that I would treat the subject as part of a unit on the changing experience of American childhood, I received a good question from "emma" in the combox.  Here it is:

Do you also ask them to put themselves in the positions of their once-younger siblings, now grown older, and facing an unwanted pregnancy?

I gave a quick answer for the combox:

Emma, that's absolutely got to be part of their education, yes -- just as I ask them to put themselves in the position of all kinds of people facing challenges in life. I've tried to do that repeatedly as we've studied American history: asked them to put themselves in the place of marginalized people as well as in the place of people who've done terrible things. I've asked them to put themselves in the place of undocumented immigrants, in the place of people who supported immigration amnesty, and in the place of people who support strict immigration law enforcement -- so they can understand where everyone is coming from. I asked them to put themselves in the place of white antebellum Southerners and white antebellum Northerners and free blacks and slaves. Heck, a couple of weeks ago I even asked them to put themselves in the place of Richard Nixon. "Can you understand how a person could imagine that their political opponents were really *enemies?* And if you thought that, would it still be okay to lie and cheat to win elections?"

How else can "do the right thing, always" sink in, how can "never help people commit injustice, never" sink in, until you really understand that sometimes doing the right thing is terribly, terribly difficult? That sometimes contributing to injustice is terribly, terribly tempting?

 I think it's a question worthy of highlighting for further discussion, don't you? 

My point, in putting Roe v. Wade within a unit on the experience of childhood, is to point out that it affected the legal status of children primarily -- much more than it did the legal status of women.   Of course, this only follows from the notion that unborn children are, in fact children; but I am sure the commenter understands that this is a fundamental assumption in my homeschool.

As with all my educational theories, we shall see how it plays out as my children get older and ask tougher questions. My philosophy about imparting the conviction that the unborn deserve protection  is that it's necessary to go beyond "abortion is bad, so don't ever have one or pay for one or recommend one, try to help people who think it's their only choice, and vote against it whenever you can."  

What's more fundamental than that?  What's more necessary than that?  Well -- ask yourself why abortion is a bad thing, why people shouldn't have them, pay for them, promote them, why it's better to help people make different choices, why its legal status should change.  The only good answer is that the unborn are persons, children, and all those judgments follow from it. 

The Catholic novelist and short-story master Flannery O'Connor once famously said about the Eucharist, "If it's just a symbol, then to hell with it."  Well.  About the anti-abortion movement, I can say:  "If the unborn aren't persons, than to hell with it." 

And so the thing that must be imparted is the gut-and-brain knowledge that unborn children are nothing more nor less than children, younger than themselves.   A ten-year-old boy will protect his little sister like a Rottweiler:  I have seen it.   A four-year-old girl will carefully care for her baby brother:  I have seen it.  The whole family will gather eagerly around Mom's belly to watch for the tiny kicks:   I have seen it.  They know.  They mustn't lose this knowledge.

If you know that an unborn child is a child, you don't need to be told that she needs care, not violence.

If you know that an unborn child is a child, you don't need to be told that a scared pregnant girl is a scared young mother with a baby, that a boy with a pregnant girlfriend is a worried young father.   I'll have completely failed any one of my sons if he makes it to adulthood without being able to imagine what it might be like, what it is like for too many American men: to fear that he can't care for his family.   I'll have failed my daughter if she grows up without putting herself in the place of a mother who's afraid she can't care adequately for herself and for her child.  

I believe that to awaken compassion for young mothers and young fathers and their children is to awaken a desire to help them all, not a desire to harm any of them.  Political positions come long after that.

Readers:  What do you think of Emma's question and challenge?  A good one, no?

Shaken baby syndrome: bogus?

Brief but interesting article, with links, by Radley Balko on the changing medical consensus (and the lag in the legal consensus) about "shaken baby syndrome," or SBS.  Some of the points raised:

• Symptoms that prosecutors have argued are proof of SBS are now known to occur because of other causes, including falls, infections, and reactions to vaccinations.
• Doctors used to think that classic SBS symptoms presented immediately after shaking, so that the person who was with the child when it died was certain to be guilty of manslaughter or even murder.  New research shows that the symptoms may take 3 days to set in.
• New research also shows that shaking without an accompanying head injury produces less serious bleeding than was previously believed.
• "I shook the baby to try to wake him up" has been taken as evidence of guilt.

I'm interested in the lag between scientific findings and their acceptance in other circles -- legal circles being one or the most important.  Balko notes:

In other words, there are almost certainly a significant number of innocent people in prison today who were wrongly convicted of shaking a baby to death. The problem is that there are also likely a number of guilty people who, nevertheless, shouldn't have been convicted on the basis of science-based testimony we now know to be false. The task will be convincing both the courts and the public to risk freeing actual child killers in order to free the innocent people convicted with flawed medical testimony...

This whole controversy speaks to a fundamental tension between science and law. Science moves along a slow trajectory from inquiry toward certainty. While the courts have been eager to embrace new science—particularly forensic science—at the trial level, they're reluctant to revisit those cases when the science changes.

Very interesting, especially for every parent who's ever worried that taking the baby to the emergency room after a fall might get him accused of child abuse...

Thought crime goes both ways.

Here's the story, big in Minnesota, about the Valleyfair amusement park beating. On the fourth of July, a gang of thugs brutally beat up a man who was defending his teenage daughter from unwanted attention.

After mug shots of the black suspects were made public, the case generated intense public reaction in online blogs and news sites and was debated on local talk radio shows after many callers mistakenly believed the victims were white. The Scott County attorney's office received numerous calls urging that a hate-crime charge be filed until Ciliberto announced last week that the victims and suspects are all black.

Come on, doesn't the "ick factor" in the following facts argue eloquently against having a special category of crimes known as "hate crimes," in which certain cherry-picked motives and states of mind -- real or perceived -- mean harsher penalties?

When the public believed the victims were white, "numerous" people called for harsher penalties under hate-crime laws.  When the public found out the victims were black, the calls for harsher penalties went away.

I don't know about you, but I don't particularly enjoy living under laws and public attitudes that mean the same guy would get an easier penalty for beating up a black family than he would for beating up a white family.

The power of "best interests of the child."

That mothers are being separated from their children at all based on such flimsy evidence before an investigation is even complete is bad enough.

That the needs of breastfeeding children are, apparently, not even being considered?  Criminally cruel.

SAN ANGELO, Texas - As their parents lined up for genetic tests 45 miles away, some children from a polygamous sect departed for new, temporary homes across Texas.
    Buses filled with children ages 5 and older rolled out of the San Angelo Coliseum and Pavilion Tuesday afternoon, hours after 51st District Judge Barbara Walther signed an order sending them to 16 group homes and shelters throughout the Lone Star State.

...Young children and their mothers remained at the coliseum Tuesday night.
    Walther said adult mothers will be sent home once the state is ready to move those children. She refused on Monday to allow nursing mothers to stay with their infants and toddlers when they are moved to foster homes.

If there is any concern that the mothers will abuse these children -- and of this I am extremely skeptical -- why is there never an option that allows nursing mothers to remain with their young children under supervision?   If faced with such a situation, I'd rather submit to being shackled and surveilled 24 hours a day, while preserving my availability to my nursing child.