May 28, 2015

Eugene Volokh thinks the Madison, Wisconsin school board is violating the First Amendment...

... with its new rule against "clothing with words, pictures or caricatures based on negative stereotypes of a specific gender, race, ethnicity, nationality, religion, sexual orientation or disability" and against "shirts, hats or other attire with Native American team names, logos or mascots that depict negative stereotypes."

62 comments:

MadisonMan said...

But how can the School Board feel good about itself for doing something if this rule can't be enacted?

clint said...

If they are banning clothes based on the information content of the words, rather than all clothes with words, then aren't they?

traditionalguy said...

Free people speak free. That's why they are free. Madison wants step ford kids that remain brain dead at all times or WE WILL PUNISh YOU. It's for the Muslims and the savages.

Sammy Finkelman said...

The fact is nobody really is offended by this kind of stuff, even if it is half-stupid. Nobody really applies these stereotypes to currently living - or even past - American Indians.

I am not sure there would be quite such a controversy if the things being banned with things that were truly offensive, even if the legal question is the same.

Besides, something truly offensive, could be deemed a sort of threat, or something that would disrupt the educational mission.

By the way, this so vague nobody really knows what is covered. Apparently, it is anything someone in authority objects to.

Fabi said...

'...the list of teams is in development in consultation with your school board and community based advisory groups.'

Nice to see that the SJWs will have input into your free speech rights.

Birches said...

We were driving through Gallup in April. We stopped at a McDonald's for breakfast. There was some sort of tribal meeting going on at one of the nearby tables discussing an upcoming festival that they were in charge of planning. There was probably 5 or 6 people, all of them (even the men) with long, braided, authentic hair. One of the women was wearing a very new and very expensive looking Redskins jacket. Spouse wanted to take a picture. We see at least one Native with Redskins gear every time we drive through Gallup. And we've driven through Gallup at least twice a year for almost eight years.

Seeing Red said...

Then institute uniforms.

TosaGuy said...

Is Mary Burke still on the board?

Fabi said...

The Indian wearing the Redskins jacket must have been an Uncle Sitting Tom.

James Pawlak said...

Would the following be allowed???

From President Jefferson: "No freeman shall ever be debarred the use of arms"; "The strongest reason for the people to retain the right to keep and bear arms is, as a last resort, to protect themselves against tyranny in government".

From President Washington: "The very atmosphere of firearms any where and every where restrains evil interference---they deserve a place of honor with all that is good.";  "Firearms are second only to the Constitution in importance; they are the peoples' liberty teeth".

Left Bank of the Charles said...

A list of prohibited team names, logos and mascots are to be posted on the school district website. So it's only a matter of time before some student hacks the site and adds Bucky Badger or Banjo from the Milwaukee Bucks.

The Drill SGT said...

How about the term Cheesehead. That has got to be offensive to somebody.

and Viking? Nationality and ethnicity descrimination?

Don't get me started on how demeaning (sexually, Racial and Gender based) Dallas Cowboys. Who you callin Boy, Boy!

sean said...

Eugene Volokh tends to live in a legal fantasyland, in which the cases that don't support his position don't exist. Which is fine for an academic who wants to argue, but not useful for a practicing lawyer.

Gahrie said...

I personally feel the need for a safe place when ever anyone brings up the Fighting Irish.......

Bobber Fleck said...

So who gets to define what counts as "negative stereotypes"?

This looks like a variation on the thought police. Since this is the Madison School Board, I'm sure this is just another attempt to define allowable thought. Diversity requires uniformity of thought.

CarlF said...

My high school team name was the Pioneers featuring a mascot in the form of a white male in a coonskin hat. I now understand this was apparently showing my community's prejudice against white people.

Char Char Binks, Esq. said...

This will disproportionately affect black students.

lemondog said...

We see at least one Native with Redskins gear every time we drive through Gallup. And we've driven through Gallup at least twice a year for almost eight years.

And you could not spare 5 minutes to explain the negative stereotyping?!! :-O

buwaya said...

"So who gets to define what counts as "negative stereotypes"?"

Seems to be an important point.
Anything can be deemed "negative" by someone, so I expect that no image, or nothing at all, that can be construed as native American can be permitted.

Someone wanting to make trouble could, I suppose, start finding all sorts of things their friends (well, soon not to be) and teachers are wearing, and report them.

Anonymous said...

Volokh is right. Can't ban any speech in schools unless it's disruptive. Merely being offensive or in poor taste is simply unconstitutional.

The Bergall said...

Ban all shirts, period.

Next Burka's

GMC70 said...

sean said...
Eugene Volokh tends to live in a legal fantasyland, in which the cases that don't support his position don't exist. Which is fine for an academic who wants to argue, but not useful for a practicing lawyer.




I'm sure you'll promptly cite a contrary controlling opinion. Right?

Lewis Wetzel said...

Would a pic of Nat Turner be considered a positive or negative stereotype? How about a pic of Colonel Sanders?

gadfly said...

So how many Indians will be protected by this BoE pronouncement? Don't know for sure, but population stats say that school-aged Madison kids total about 42,600 and total percentage of American Indians in the city is 0.4% - so only 170 children could react as offended if each and every one of them didn't understand that school mascots are more likely to be named as an honor than as an insult.

Progressives are silly.

sean said...

GMC70: Harper v. Poway Unified School District.

While we're at it, note that Volokh represented the loser (cue Prof. Althouse chanting "loser"--we know she likes to jeer at losers) in Elane Photography. The law simply is not what Prof. Volokh thinks it should be, and his blog is not a reliable guide to the law as it actually is.

rhhardin said...

I'm less worried about the first amendment than the morons in charge.

Moneyrunner said...

Rush Limbaugh read a news story today about the fact that in San Francisco black women represent about 6% of the city's population, and yet they account for nearly half of all female arrests. We know that disproportionate arrests are the result of white racism – and now white sexism. We know from this that the people that run San Francisco are a bunch of racists, and they're biased and they're prejudiced against black women.

So I decide to see how racist and sexist the people of Madison are. The demographics of Madison are roughly 79% white and about 7% each Black and Asian. Madison’s crime rate is above 93% of all American communities. The Murder and rape rate is up about 33% in the last year although robbery, burglary and larceny are down. A little over half of the Dane Country black population is on welfare.

I was not able to determine during my brief search of the internet if white racists and sexists were imprisoning black women in Dane county out of proportion to their demographic component. Or if Black homosexuals of any gender were being discriminated against. But the odds are that Ann and people of her pallor are oppressing her sisters without a second thought since anyone who thought about voting for Mitt Romney in 2012 is obviously racist, sexist and part of the heteronormative oppressing class; and I don’t care what her son identifies as.

Fen said...

So who gets to define what counts as "negative stereotypes"?

Certainly not those ignorant rednecks living in flyover country. Blech. They are probably too busy shagging their sisters in the trailer park.

Anonymous said...

sean said...
Eugene Volokh tends to live in a legal fantasyland, in which the cases that don't support his position don't exist. Which is fine for an academic who wants to argue, but not useful for a practicing lawyer.

***

A string of unsupported assertions isn't an argument. Offer some examples. You might start with *your* credentials as a legal scholar.

Lewis Wetzel said...

Ever hear of "structuralism"?

The structuralist school emerges from theories of language and linguistics, and it looks for underlying elements in culture and literature that can be connected so that critics can develop general conclusions about the individual works and the systems from which they emerge. In fact, structuralism maintains that "...practically everything we do that is specifically human is expressed in language" (Richter 809). Structuralists believe that these language symbols extend far beyond written or oral communication.

For example, codes that represent all sorts of things permeate everything we do: "the performance of music requires complex notation...our economic life rests upon the exchange of labor and goods for symbols, such as cash, checks, stock, and certificates...social life depends on the meaningful gestures and signals of 'body language' and revolves around the exchange of small, symbolic favors: drinks, parties, dinners" (Richter 809).

This is what people are referring to (whether they know it or not) when they say that American society has structural racism, sexism, etc.
This is why even Black cops commit racist acts when they disproportionately arrest other Blacks. This is why a school system created by non-racist liberals and run by non-racist liberals is racist.
This is how a banking system can be racist without anyone involved in it committing a racist act.
What do you think "disparate impact" legislation is about?
In their pursuit of power over the lives of others, the Left has moved way beyond concepts like "individual freedom." There is none. There never was any such thing. And if you stand in their way you will be crushed.

averagejoe said...

Fen said...
So who gets to define what counts as "negative stereotypes"?

Certainly not those ignorant rednecks living in flyover country. Blech. They are probably too busy shagging their sisters in the trailer park.

5/28/15, 8:53 PM

Tits!

richard mcenroe said...

Blogger gadfly said... Dude, you forgot the Elizabeth "Liawatha" Warren rule...suppose some snotty little Social Justice Warrior "self-identifies" as Native American? Does that count?

Anonymous said...

"the performance of music requires complex notation.."

Snork!

Every musician worth his salt can play "by ear".

What a crock.

Titus said...

I am very excited about hiring my new intern:

Exeter
Middlebury
internship in London
from Marston Mills, Barnstable-on the cape.


tits.

Lem said...

What if you are Native American and a Cleveland Indians fan and you have a favorite t shirt of theirs, your father gave you that t shirt and you never offended anybody with the t shirt?

rh is right.

Lem said...

Nice going, Nebraska.

Lewis Wetzel said...

Jelink, it doesn't matter if you think that structuralism is a crock. What matter is what the people who run this country think about it.
Structuralism was all the rage when people like Holder and Obama were undergrads and law students. The literary theory began to gain traction the 50s. The actual source is Marxism and fascism. It doesn't matter what you've actually done. What matters is what you are. Jew? Condemned. Reactionary? Condemned. Who decides if you are a Jew or a reactionary? The State.

Known Unknown said...

Can I wear this t-shirt in a Madison school?

Anonymous said...

From the Harper v. Powey case: The second day Harper wore the shirt, a teacher sent him to the principal's office because other students in the class were distracted by the shirt and because of prior altercations at the school resulting from conflicting views about homosexuality.

It's the prior altercations and the class disruption that gave the school district the right to ban the shirt. In fact, that part is and was settled law before the Harper case. What the Harper case was about was whether the school district could punish Harper for wearing the shirt across the street from the school where it could be seen by the students.

"Substantial disruption" is the gold standard. Demeaning is just not enough. Volokh is right.

Wince said...

Does this mean I can't wear my pink sweatpants with the word "Juicy" across the ass?

Anonymous said...

Isn't it time to ban the "naziophobes" (/s)?

Bleach Drinkers Curing Coronavirus Together said...

Cool. How's that whole in loco parentis nonsense working out?

This all results from the fact that universities are no longer places where people learn how to think. They're now holding tanks for the mass indoctrination of a workforce that largely can't be bothered to learn how to do anything useful any more, but believes itself to be too good for any skilled trade.

And thanks for getting all the women in there, too. With the majority of admissions now consisting of a gender that prefers rote memorization to critical thinking, the faculty and curriculum obviously had no choice but to "adjust". With horrendous consequences.

The Cracker Emcee Refulgent said...

"This will disproportionately affect black students."

Black men. By design. That's who white middle-class liberals are truly afraid of. They dare not single them out though so, what the Hell, zero-tolerance to effect limitless control!

steve uhr said...

Isn't it the responsibility of the City Atty review such policies and advice on legality before enactment? Apparently no one on the common council asked for a legal opinion. Nor did the mayor. Wonder why.

mtrobertsattorney said...

The Founding Father of Structuralism was Professor Irwin Corey. He just missed a Nobel Prize because of vicious rumors circulated by jealous academics.

Bricap said...

Can a student wear a T-shirt that says "Bong Hits For Jesus?"

Swifty Quick said...

sean said...
GMC70: Harper v. Poway Unified School District.


Ninth Circuit case, not controlling in Wisconsin.

Hammond X. Gritzkofe said...

...negative stereotypes of a specific gender, race, ethnicity, nationality, religion, sexual orientation or disability...

But positive stereotypes?
..masculine nouns are -O SO FINE! [gender]
..yellow and proud! [race]
..hillbillies are above you! [ethnicity]
..Andorrans think big! [nationality]
..zoroastrians do it with zest! [religion]
..celebrate diversity; be a zoophile! [sexual orientation]
..blind and literate! [in braille]


David said...

Uniforms.

Require uniforms.

tim in vermont said...

Titus, did they set you up with that little cup-cake to keep you from running off to HBO?

For somebody who hates white people, you sure do like white culture. Just sayin'

virgil xenophon said...

Terry@8:57pm, 28 Sept/

The poli-sci community labels it "functional structuralism." i.e., applied even if not organizationally evident.

MadisonMan said...

Is Mary Burke still on the board?

Yes.

Anonymous said...

Kids should be allowed to wear whatever tee-shirt they want. Doesn't matter if it says "Fuck Jesus" or "God Hates Fags" or anything else. Freedom of Speech means that they are allowed to express themselves, no matter what, and anyone who says otherwise is a fascist commie that hates 'merica.

CWJ said...

David,

Agreed, or ban message/illustrated clothing altogether.

sean said...

jelink: have you read Prof. Volokh's commentary on Elane Photography? His version of the First Amendment simply isn't the one held by the federal courts. Maybe in a better world, his views would be the law, but we have to live in this world.

FWIW, I went to Boalt, which is a better law school than the one Prof. Volokh went to, although, in fairness, he had better grades than I did. I am a partner in an Amlaw 100 firm. How that compares to a tenured professor at a top 30 law school, the reader must decide.

Anonymous said...

Sean, as I am sure you know, but failed to explain, the Ninth Circuit's opinion in Harper was vacated by the United States Supreme Court. Whatever the Ninth Circuit said on the issues is now completely irrelevant and has no bearing on Volokh's analysis. Harper was also authored by the most-reversed circuit judge in the Country. Also, I don't see the Supreme Court of New Mexico, in Elane Photography, as the final arbiter of the First Amendment.

FWIW if you are going by rankings, I went to a better law school than Boalt and am also a partner in a Amlaw 100 law firm. I do try, however, to follow the ethical guidelines of noting when a decision I rely upon has been vacated, even outside of court.

Lewis Wetzel said...

Virgin Xenophon wrote:
The poli-sci community labels it "functional structuralism." i.e., applied even if not organizationally evident.
It has always bothered me, virgil xenophon, that the people who see things like structural racism and sexism in American society don't see the structural elements in society give them the privilege of detecting and defining structural racism and sexism.
The greatest unearned privilege of all is the privilege of defining and judging others, while you do not allow yourself to be defined or judged by others.

Anonymous said...

Also Sean, if you are comparing paper credentials with Volokh, did you graduate from college at age 15 and clerk on the United States Supreme Court?

Bad Lieutenant said...

If you two are at the same firm I pray to God you meet someday. Please sell tickets.

Big Mike said...

To Hell with sean. It's Eugene Volokh; of course he's right. I'm sure that the Madison school board would show up in grey Mao jackets and shapeless grey pants, but that's not how it's going to go.

Big Mike said...

I'm sure that the Madison school board would like the kids to show up in grey Mao jackets ...

Sorry. Cut too much.

Rusty said...

madisonfella said...
Kids should be allowed to wear whatever tee-shirt they want. Doesn't matter if it says "Fuck Jesus" or "God Hates Fags" or anything else. Freedom of Speech means that they are allowed to express themselves, no matter what, and anyone who says otherwise is a fascist commie that hates 'merica.

Absolutely.
But not for the reasons you think.