Freespace

Ragtime

I had one of my periodic musical cravings the other day. I get cravings for music the way many people get cravings for food, and it drives me crazy until I put on the CD—or go buy one, as in this case. I had a craving for Scott Joplin.

It then occurred to me that there are probably many people in my generation who have never seriously listened to Joplin. Of course it’s unlikely that they’ve got this far without ever hearing, say, “The Entertainer.” But to many of them, I suspect it’s just been like the Wagner in the backgrounds of Roadrunner cartoons.

Ragtime is such beautiful music—boundlessly joyful, even in the sadder pieces, paradoxical as that may be. It’s one of the building blocks in what became Dixieland jazz, but it would be a serious (and common) mistake to think that ragtime is unsophisticated, or anything short of real art music. It was popular music, which to many people means it could not possibly be art, but it’s time we finally abandoned that silly prejudice.

Here’s a nice detailed biography of the great ragtime composer, Scott Joplin. As many people know, ragtime had been largely forgotten until the 1970s, when a revival was largely sparked by the popularity of the movie The Sting. This is ironic, since The Sting is set in the 1920s, when ragtime was utterly passé. But a good start if you’ve never listened to the music, would be the soundtrack album.

By the way, am I the only person who thinks that Peabo Bryson’s 1983 hit “If Ever You’re In My Arms Again” was a ripoff of the melody from Joplin’s “Solace (A Mexican Seranade)”?

Returned

The lovely Sarah Hempel has returned.

More from Mr. Frank

In response to my post below, I got an anonymous email forwarding to me an email from Mr. Frank—which is itself a fake name. I’m not sure why the need for so much secrecy, nor can I confirm that this is really is from the same “Mr. Frank” who wrote earlier, since he didn’t just write me directly for whatver reason, but anyway, the note says

Dear Mr. Sandefur,

First, let me say that I believe that I understand your argument. It’s a good one. I agree that there are standing issues. However, because the context of vouchers for home or private schooling is a new context, I believe that the door is properly opened at least for a citizen of the relevant school district or for an education administrator who overse[e]s Federally funded education to bring the suit.

I think we agree that in the case of a public school, a custodial parent of a student in the school would have standing to bring an Equal Protection suit against a school which refused to fire a teacher who explicitly taught racist, misogynist or anti-gay message.

Now, if your argument is correct, a group of parents could start their own School of Discrimination of Anyone That is Not A White Male Heterosexual, take federal tax money, and educate their children, no questions asked. In that context, then, absent a specific law relating to the subject matter which may be taught in voucher-approved schools and an administrator to oversee the whole thing, there is no suit that can be brought. Meanwhile, the Equal Protection Clause of the Constitution is surely being violated and children in my district are being educated with my tax money. As I said, it may not be a winning argument in the end, but I think by distinguishing a few of the EP cases where standing is not found and analogizing to the Campbell case, it'd be damn close. You have to believe, Mister [Sandefur]!!!

In any event, I expect we'll see something very similar down the road.

Oh, just fyi: linking to Drudge is icky.

I’m sorry, but while Mr. Frank may “believe the door is properly opened...to bring [a] suit,” the facts are simply otherwise, and Mr. Frank doesn’t provide any citation for his belief that runs contrary to the Wright case I cited. The only time federal courts will hear a case brought on the grounds of “taxpayer standing” is when the case involves the Establishment Clause—which was the basis of the recent Supreme Court case involving school choice, Zelman. The fact that school choice is a “new context” since they’re relatively new programs, may of course cause the Court to alter its standing jurisprudence, just as any new thing can change the direction of the law. But the current caselaw just does not warrant standing for a person to sue to enjoin a school choice program on taxpayer standing grounds, whether that person is an “education administrator” or a parent.

I do not agree that “a custodial parent...would have standing to bring an Equal Protection suit against a [public] school which refused to fire a teacher who explicitly taught racist, misogynist or anti-gay message.” Such a case would have to be brought on something other than taxpayer standing. What right would be violated by the school’s refusal to fire such a teacher? The parent has no right to control the hiring and firing decisions of a school or to interfere with the “academic freedom” of a teacher to teach his class in the manner he sees fit—including an offensive or racist manner. And the Wright case specifically held that a “claim of stigmatic injury, or denigration, suffered by all members of a racial group when the Government discriminates on the basis of race” is not “judicially cognizable.” 468 U.S. at 754.

Mr. Frank is concerned, and understandably so, that “a group of parents could start their own School of Discrimination of Anyone That is Not A White Male Heterosexual, take federal tax money, and educate their children, no questions asked...absent a specific law relating to the subject matter which may be taught in voucher-approved schools....” But that is, in fact, the law, and I think it is right that it is the law. Parents have the right to teach their children, including teaching their children things that are not true, such as that the world is 6000 years old or that blacks are an inferior race, or whatever. They may do so in groups, also, by creating private schools. They have that right—the school belongs to them. And they may also receive grants of federal money, if the federal grant does not include language saying “you may not use this at a racist school”—that is, “absent a specific law relating to the subject matter which may be taught.” Of course, it seems unlikely that federal or state governments will give such a blank check to private schools, and in fact, in the Zelman case, as Justice Breyer pointed out, the state of Ohio did draft a “specific law relating to the subject matter which may be taught.”

Such laws are actually not an entirely good thing, as Justice Breyer—and many libertarians—have argued:

will different religions not become concerned about, and seek to influence, the criteria used to channel this money to religious schools? Why will they not want to examine the implementation of the programs that provide this money—to determine, for example, whether implementation has biased a program toward or against particular sects, or whether recipient religious schools are adequately fulfilling a program’s criteria...? [The Ohio program] insists that no participating school “advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion.” Ohio Rev. Code Ann. §3313.976(A)(6) (West Supp. 2002). And it requires the State to “revoke the registration of any school if, after a hearing, the superintendent determines that the school is in violation” of the program’s rules. §3313.976(B). As one amicus argues, “it is difficult to imagine a more divisive activity” than the appointment of state officials as referees to determine whether a particular religious doctrine “teaches hatred or advocates lawlessness.”

536 U.S. at 723-24. The problem with school choice programs is that the money will come with strings, which interferes with academic freedom—which ought to be preserved, because parents have the right to teach their children what they want, including things that Mr. Frank and I find obnoxious or things which are actually untrue. On the whole, I believe that school choice programs are better than programs in which parents have no such choice, but they do have this flaw.

Finally, Mr. Frank is upset that “the Equal Protection Clause of the Constitution is surely being violated and children in my district are being educated with my tax money.... You have to believe, Mister [Sandefur]!!!” I’m not sure what my belief has to do with the law, but I also am not convinced that the Equal Protection Clause is violated when a teacher tells the students something racially bigoted. The Constitution prohibits the state from treating people differently on the basis of race. It is not clear to me that it prohibits state officials from making racist comments, even in their official capacities.

Now, let me be precise on this point. A government teacher certainly would violate the Equal Protection Clause by humiliating a student, or singling out a student, or grading a student badly, on the basis of race. But if a government teacher were merely to state in class that he is a white supremacist, I don’t believe he would violate the Equal Protection Clause—just like if a teacher were to state in class that he is a Christian, that would not violate the Establishment Clause. But the two clauses differ, as I’ve said, in that the state is clearly not allowed to state an official position on religion, where the state does not seem to be prohibited from enunciating a position with regard to racial differences. So while a teacher would violate the Establishment Clause simply by teaching that Christianity is true (which is different than him merely stating that he is a Christian), I don’t think he would violate the Equal Protection Clause simply by teaching that white supremacy is true—so long as he did not actually treat students differently in some concrete way on the basis of race.

To clarify:

Establishment Clause—prohibits government from stating that any particular religious view is correct.
Equal Protection Clause—does not clearly prohibit government from stating that any particular view of the races is correct.
Establishment Clause—does not prohibit teachers from stating their personal positions on religion.
Equal Protection Clause—does not prohibit teachers form stating their personal positions on race.
Establishment Clause—does prohibit teachers from stating that their personal positions on religion are correct.
Equal Protection Clause—does not seem to prohibit teachers from stating that their personal positions on race are correct.
Establishment Clause–probably prohibits teachers from treating students differently on the basis of religion.
Equal Protection Clause—prohibits teachers from treating students differently on the basis of race (and religion, too!)

Oh, and there is nothing “icky” about linking to the Drudge Report, which is a consistently reliable source of news.

Problems with Kissing Day

Amber Taylor recently emailed me about her campaign to institute an American National Kissing Day. I was already familiar with her efforts, but I have two concerns.

First, I’m seriously troubled by the fact that I can’t celebrate this holiday as I would like to. Now, many holidays have these sorts of limits—you can’t set off fireworks in the office for July 4th, after all—but a National Kissing Day somehow loses a good deal of its meaning for me if my opportunities to celebrate it are going to be as limited as my opportunities to use fireworks. Indeed, many people don’t use fireworks at all for July 4th, but allow experts to set off their fireworks for them. Heaven knows I love to watch a professional like Charlize Theron show us how kissing is done, but honestly, I’d rather do it badly myself.

On a related note, if one’s going to celebrate National Kissing Day, one has to be highly confident that others know of the existence of the holiday. If you go about with Merry Christmas on your lips, every idiot knows that it’s Christmas and doesn’t think anything about it. If I go about kissing girls I’ve longed for a while to kiss, I have to hope that they, or the police, are familiar with National Kissing Day. True, I do celebrate holidays that nobody else knows about—I just go nuts at Guy Fawkes’ Day (really!)—but those are holidays that are not commemorated by potentially felonious assaults.

Second, are people really that insensate to the pleasures of kissing? I know that our youth are going to hell, but surely they still kiss and enjoy being kissed. Not to tell stories out of school, but when I was a young whippersnapper I once kissed a girl for ten hours straight—just kissing. Am I just square? Maybe I am. I do use words like “square,” for instance. But I kiss my Erin every time I see her. Do I need a holiday?

And that brings to mind another problem. I celebrate my Erin every day—yet I’m still socially required to get her something special for Valentine’s Day. This is, as many people have noted, a scheme by Hallmark to rob me of my hard-earned money. How are we to be sure that National Kissing Day isn’t just a clever scheme by Amber Taylor (or maybe her sister, Ann) to sell us something? She may not have mentioned it yet, but perhaps she’s just laying the ground work.... Wait, I’ve got it! She’s bought stock in the Hershey Corporation, and in five years, once her little Kissing Day has been drilled into the minds of women everywhere, all us guys will be forced to fork over the money to buy Hershey’s Kisses for our sweethearts.

Must be an idea she came up with at The Meadows.

Update: Amber Taylor answers here.

Rights to education

(Simultaneously posted on Panda’s Thumb.)

Mr. Darrell makes some interesting points with regard to teaching of Christianity in schools in early America, although I don’t find it as easy to distinguish theology from religious morality education as he does.

However, he’s not quite right to say that “most kids have no legal right to a public education.” It’s true as a philosophical matter that nobody has a right to an education, because educations are provided by others, and nobody has the right to compel another person to provide him with an education, any more than a person has the right to compel another person to provide him with a car or a television set or any other transfer of wealth. All coercive transfers of wealth are violations of rights. But as far as a “legal right” goes, many states, perhaps most states, have determined that such a right does exist. California’s Supreme Court, for instance, has determined that a public education is a “fundamental right.” See, e.g., Butt v. State of California, 4 Cal.4th 668, 686 (1992). The federal Supreme Court, fortunately, has determined otherwise as far as the Federal Constitution is concerned. San Antonio School District v. Rodriguez, 411 U.S. 1 (1973).

Does this mean that “[a] right to education would be a right to correct information, not folderol”? Well, there have been lawsuits against the state arguing that the right to an education means the right to a quality education, and arguing that the state has violated this right by providing the poor quality public schools that California has. I don’t know if these have been successful, but I don’t believe so. Courts tend to defer to the Legislature’s judgment, or the judgment of local school districts, as to how to fund and operate public schools. Nor do the courts intervene when it comes to poor quality teaching. Attempts to sue public school teachers for malpractice, for example, have not succeeded because Courts refuse to intervene to determine what constitutes a quality education. See, e.g., Brown v. Compton Unified Sch. Dist., 80 Cal. Rptr. 2d 171 (1998); see further Todd A. DeMitchell and Terri A. DeMitchell, Statutes And Standards: Has The Door to Educational Malpractice Been Opened?, 2003 B.Y.U. Educ. & L.J. 485. Once again, I disagree with this holding—I agree that if the state undertakes to educate, it ought to educate competently, but them’s the breaks. I highly doubt a court would entertain a suit against a creationist teacher on the grounds that he is violating the right to a quality education—but hey, why not try?

Mr. Darrell’s statement that “Education is not a right, nor is it a duty the kid to be educated owes anyone. The provision of education to preserve our republican democracy is a necessity, and therefore it is an obligation tax-paying citizens owe to the rest of our citizens”—makes no sense to me. I see no distinction between an unchosen “obligation” imposed on “tax-paying citizens” by “the rest of our citizens” and a “duty.” And I think it’s terrible to say that a person owes an obligation to the state to attend public schools in order to preserve the state. This is nothing less than a justification of government mind control, of which we ought to be extremely skeptical, if for no other reason, than because the public choice effect is unavoidable—such schools will be taken over by whatever political interest group is most adept at taking them over. As John Stuart Mill said,

A general state education is a mere contrivance for moulding people to be exactly like one another and the mould in which it casts them is that which pleases the predominant power in the government, whether this be a monarch, a priesthood, an aristocracy, or a majority of the existing generation, in proportion as it is efficient and successful and establishes a despotism over the mind, leading, by natural tendency, to one over the body.

Quoted in Friedrich Hayek, The Constitution of Liberty 376 (1960). Even if it were not for the public choice effect, government education is inherently contrary to the spirit of skepticism and individual thought necessary to making good republican citizens. See Karl Popper, 1 The Open Society And Its Enemies 135 (5th ed. 1966).

Nor do I agree that “There is no free speech or free exercise right to be ignorant, even ignorant of ideas one wishes didn’t exist for whatever reason.” Actually, I think the right to be ignorant is an absolutely essential part of these rights. I have the right, and I exercise it every Sunday, to be ignorant of the alleged blessings of Episcopalianism, which are taught a block away. Now, one’s right to be ignorant does not mean that he has the right to silence another person, but he certainly has the right to turn off his TV or choose not to read his junk mail. And parents do have the right to teach their children untrue things—troubling as this is to me. But that’s what “free exercise” means.

Finally, I have never heard that “Jefferson wanted to amend the Constitution to provide education rights, but that proposal never made it to paper.” I would be quite shocked if this were true. Could you provide me with more information on this, Mr. Darrell?

This conversation, too, has drifted, so I will post any further discussion at Freespace.

School choice questions

The comments thread to my recent post at Panda’s Thumb have diverged from the original subject into some other issues, so I thought it best to continue the conversation here. Although I don’t allow comments on my blog, readers are welcome to email me, and I will post their pertinent comments, with or without their names as they desire.

A Mr. Barney Frank wrote that school choice programs that allow parents to spend tax dollars to send their children to schools which teach bigotry, violate the Equal Protection Clause of the Fourteenth Amendment. I said I disagreed because mere personal offense at the expenditure of tax dollars to support the propagation of certain ideas is not enough to state a violation of the Equal Protection Clause. Mr. Frank now replies,

it’s not your “personal offense” which is the Constitutional problem. It’s the encouragement of discrimination. Do you believe that I would have no standing to bring an Equal Protection case against a tax-payer (voucher) funded teacher who home-schooled children in my school district that blacks were mentally and physiologically more primitive than whites?

The answer is, no, a taxpayer would almost certainly not have standing in such a case. The only time a taxpayer has standing to sue for the wrongful expenditure of tax dollars is in cases involving the Establishment Clause. I know of no case allowing a person to sue to block the expenditure of tax dollars to teach students anything with regard to race relations. The closest I can think of is Allen v. Wright, 468 U.S. 737 (1984). In that case, a group of parents sued the IRS for giving tax-exempt status to schools that discriminated based on race. The parents argued that this policy harmed them in two ways: “First, they say that they are harmed directly by the mere fact of Government financial aid to discriminatory private schools. Second, they say that the federal tax exemptions to racially discriminatory private schools in their communities impair their ability to have their public schools desegregated.” Id. at 752-53. The Supreme Court held “that neither suffices to support respondents’ standing. The first fails under clear precedents of this Court because it does not constitute judicially cognizable injury. The second fails because the alleged injury is not fairly traceable to the assertedly unlawful conduct of the IRS.” Id. at 753.

This is obviously not the same thing as saying that schools ought to teach such things. But a taxpayer lacks standing to sue to enjoin the expenditure of tax dollars on (in Mr. Frank’s words) “encouragement of discrimination.” Now, in my original comment, I mentioned that I think the federal bar on taxpayer standing is insupportable, and I cited Prof. Epstein’s excellent article on the subject. But as the current law stands, a parent lacks such standing.

Oh, and people also usually lack standing, in Equal Protection cases, to assert the rights of others. I believe the only time a person may bring a lawsuit against the state for discriminating against someone else is in the context of racial discrimination on juries. See Campbell v. Louisiana, 523 U.S. 392, 397 (1998) (citing Powers v. Ohio, 499 U.S. 400 (1991)).

Iraq sovereignty

Ain’t it the truth?

Hamdi

I’ve not yet had time to read the Hamdi decision. I’ll make time, because I think it’ll be one of the most important decisions in recent legal history. But I did see one passage in the plurality opinion that concerns me a lot. Yes, it’s dicta, but it suggests trouble:

The AUMF [i.e., the Authorization for Use of Military Force] authorizes the President to use “all necessary and appropriate force” against “nations, organizations, or persons” associated with the September 11, 2001, terrorist attacks. 115 Stat. 224. There can be no doubt that individuals who fought against the United States in Afghanistan as part of the Taliban, an organization known to have supported the al Qaeda terrorist network responsible for those attacks, are individuals Congress sought to target in passing the AUMF.

Hamdi v. Rumsfeld, 2004 WL 1431951, *7 (U.S. 2004).

This troubles me for two reasons. First, I think it very important that people know that the “Authorization for Use of Military Force” is a Declaration of War. I keep hearing people refer to this as an “undeclared” war. But a Congressional authorization for the use of “all…force” is a Declaration of War whether or not it includes the magic word “war.”

Second, the Declaration of War gives the President authority “to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks….” When Justice O’Connor writes that the Taliban were among those “Congress sought to target,” she is subtly misconceiving the Declaration. Congress did not “seek to target” with any more specificity than the bounds of reason—rather, they delegated to the President the authority to determine the proper targets. I fear that the plurality’s mischaracterization reflects their belief—common on the left, as we know—that the Iraq War was outside the bounds of the War, and suggests that they would be willing to declare in a future opinion that the Iraq War was not authorized by the “AUMF.”

Now, perhaps that’s not a problem—Congress passed a separate resolution declaring war on Iraq. But dicta—and particularly with this Court—can cause problems.

Good history source

My mother passed along this website, which looks like a remarkably thorough source for historical information. Click on a time period on the left, and you can navigate to a host of primary source material.

Out tomblogging around

Here’s my latest contribution to Panda’s Thumb.