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Thursday, August 14, 2014
Cheerleaders with Religious Banners: Endorsement, Free Exercise, or Coercion?
In October 2012, a controversy arose at Kountze High School in Kountze, Texas, over the constitutionality of permitting, and then banning, the high school's cheerleaders from displaying religious messages on the banners that the football team runs through at games. Initially, the Freedom From Religion Foundation challenged the banners as school sponsored speech. The school district agreed and prohibited the banners. The cheerleaders then sued, claiming that the school was infringing on their constitutional rights by limiting their speech. A state trial court agreed. After an intermediate court declared the case moot, it is now on petition to the state supreme court.
The case is particularly fascinating for three reasons. First, it implicates the fine line between religious endorsement and religious accommodation that often consumes so much time in education law classes. Second, it raises unique and difficult circumstances for assessing school sponsored speech. Thinking of my own experiences two decades ago, it seemed cheerleaders were on their own in artistically expressing themselves through banners. I recall them sitting on the gym room floor acting freely. It is hard to imagine that a school could permissibly engage in content based or religious based limitation of that expression.
August 14, 2014 in First Amendment | Permalink | Comments (0)
Tuesday, July 29, 2014
The Ongoing Battle Over School Prayer
The Supreme Court in Engel v. Vitale in 1962 held that prayer led by or encouraged by school officials in public schools is unconstitutional. Nonetheless, the practice continues in a number of public schools today. Recently, for example, a parent complained that a teacher had led prayer at a school banquet in Vigo County, Wisconsin. It took a year and lawsuit by a local foundation to get the district to agree to eliminate teacher led prayer.
Many school districts have appeared eager, for some time, to reintroduce official prayer in some aspect of their schools. The Supreme Court's recent decision in Town of Greece v. Galloway may have further galvanized them. In Town of Greece, the Court ruled in favor of allowing sectarian prayers at public town meetings. Now, school districts like Pickens County, South Carolina are taking the Supreme Court's decision a step further, reading it as a green-light to reinstate sectarian prayer in school board meetings as well.
July 29, 2014 in First Amendment | Permalink | Comments (0)
Monday, July 21, 2014
Arizona Charter School Promoting Religion and Racism through History Texts?
An Arizona charter school, Heritage Academy, is purportedly using two of Cleon Skousen's books, "The 5,000 Year Leap" and "The Making of America," in its high school history class. The books depict American slavery in a racist and sympathetic light. Skousen, for instance, includes an essay arguing that "if [African-American children] ran naked it was generally from choice, and when the white boys had to put on shoes and go away to school they were likely to envy the freedom of their colored playmates." Professor Garret Epps, University of Baltimore School of Law, explains that "parts of [Skousen's] major textbook … present a systematically racist view of the Civil War" with a "long description of slavery in the book" arguing that slavery was "beneficial to African-Americans and that Southern racism was caused by the 'intrusion' of Northern abolitionists and advocates of equality for the freed slaves." The school's founder and principal defends the use of the books, stating that "Our purpose is not to convert students to different religious views. It is to show them that religion influenced what the Founders did."
Rushing to judgment in book cases is all too easy, and that is how school boards and state departments of education find themselves in lawsuits. All books can have value in the classroom. What matters is not the views the books espouse, but how those views are presented to students. As a litany of establishment clause cases has shown us, the Ten Commandments and the Bible can be used in school, if used in the proper context. The problem is that the proper context is most often lacking.
July 21, 2014 in Charters and Vouchers, First Amendment | Permalink | Comments (0)
Thursday, July 17, 2014
Federal Court Dismisses Group's Suit to Distribute Anti-Religion Flyers on School Grounds
The U.S. District Court for the Middle District of Florida dismissed a suit against the Orange County School Board (OCSB) earlier this month, finding that the claim that the Board prohibited distribution of anti-religion materials was moot. An advocacy group, the Freedom From Religion Foundation, filed the federal complaint after the OCSB did not allow the group to hand out flyers in schools that criticized various religions. The Foundation charged that the OCSB's restriction was viewpoint discrimination because the OCSB allowed a group called the World Changers of Florida to distribute copies of the Bible. The OCSB, in explaining the different treatment, cited a consent decree from another Florida county school board to allow World Changers to distribute Bibles on school grounds (none of the parties in the Orange County case were parties to the prior consent decree). The Orange County case was mooted, the Middle District found, because the OCSB stated "that each of the materials plaintiffs sought to distribute will be unconditionally allowed" and thus the prohibition that gave rise to complaint was unlikely to reoccur. Read the district court's decision in Freedom From Religion Foundation v. Orange County School Board at Courthouse News Service here.
July 17, 2014 in Cases, First Amendment | Permalink | Comments (0)
Wednesday, July 9, 2014
NY High Court Opinion Shows Difficulty of Tailoring Cyberbullying Laws
The New York Court of Appeals recently struck down a local cyberbullying ordinance enacted by the Albany County Legislature on First Amendment overbreadth grounds. In 2010, the Albany County Legislature adopted a new misdemeanor offense — cyberbullying — defined as "any act of communicating . . . by mechanical or electronic means . . . with no legitimate private, personal, or public purpose, with the intent to harass, annoy, threaten, abuse, taunt, intimidate, torment, humiliate, or otherwise inflict significant emotional harm on another person." A high school student was prosecuted under the statute after he anonymously posted photographs of his classmates and other minors with sexual captions attached to the pictures. The student pleaded guilty to one count of cyberbullying but reserved his right to raise his constitutional arguments on appeal. On appeal, the Court noted that the statute "create[d] a criminal prohibition of alarming breadth" that "criminalize[d] a broad spectrum of speech outside the popular understanding of cyberbullying, including, for example: an email disclosing private information about a corporation or a telephone conversation meant to annoy an adult." The county government conceeded on appeal that the ordinance was overbroad and thus limited protected free speech, but argued that the law could be saved because certain sections passed strict scrutiny review, namely the prohibitions against disseminating sexually explicit photographs, private or personal sexual information, and false sexual information with no legitimate public, personal or private purpose. Those sections were justified, the County argued, by a compelling government interest and were narrowly drawn to serve that interest. The NY Court of Appeals declined to save the non-infringing sections of the ordinance, finding that the law's text "envelops far more than acts of cyberbullying against children by criminalizing a variety of constitutionally-protected modes of expression" and that the Court could not rewrite the law without encroaching on legislative power and modifying the legislature's original intent. Read the Court's opinion in People v. Marquan M. here and Eugene Volokh's comments on the case here.
July 9, 2014 in Cases, First Amendment | Permalink | Comments (0)
Thursday, July 3, 2014
School Employee's Comments Made During Leave from District Held Protected Under First Amendment
The Eleventh Circuit Court of Appeals recently held that a school employee's speech, made while on leave from his school district serving as the president of the Georgia Association of Educators ("GAE"), was made in that role rather than as a school district employee. The circuit court thus overturned on First Amendment grounds a lower court's summary judgment ruling for the school district. The case arose when Richard Hubbard, who had been an assistant principal employed by the Clayton County (Georgia) School District, was elected to be president of the GAE. Hubbard was retained as a district employee to preserve his retirement status and benefits, but was considered "on-loan" to the GAE, which reimbursed Hubbard's salary and benefits to the district. During his tenure as GAE president, the Clayton County School District had an accreditation crisis. Hubbard commented to the media that if certain allegations made against the Clayton County School District about the accreditation investigation were true, the school board should step down. Following those comments, the Clayton County School District voted to discontinue any employee leave that was not specifically allowed by Board Policy, including Hubbard's "on-loan" arrangement. Hubbard resigned as a school employee and sued the district in federal court. A federal district court found in favor of the school district on summary judgment, deciding that Hubbard was speaking pursuant to his official duties for the school district and thus had no First Amendment protection under Garcetti v. Ceballos. The 11th Circuit disagreed, finding that Hubbard's speech was made in his capacity as president of GAE, and thus his speech did not fall under Garcetti. The 11th Circuit noted that Hubbard was only technically an employee of the school district since he had no employee assignments or responsibilities to the district while "on-loan" to GAE. Read Hubbard v. Clayton County School District here.
July 3, 2014 in Cases, First Amendment | Permalink | Comments (0)
Monday, June 30, 2014
Court Upholds Exclusion of Un-vaccinated Students
Last year, three families filed suit against the New York City School system for its exclusion of their children because they had not received their vaccinations. They alleged that the forced vaccination program violates their religious beliefs.
In their First Amendment cause of action, Plaintiffs claim their rights to free exercise of religion were violated when their children were excluded from school due to their religious beliefs running counter to vaccination practice. Plaintiffs argue that their children were "arbitrarily, capriciously, unreasonably and unconstitutionally denied" the right to free exercise of religion based on the state vaccination practice, in general, and, in particular, because the religious exemption standards "force[ ] parents to detail their religious beliefs and submit to a 'test,' and the determinations of whether or not to grant the religious exemptions falls[ sic ] to the subjective judgment of one school official who is unqualified to make such a determination."
The district court, in dismissed the case, wrote "not only has the Supreme Court strongly suggested that religious objectors are not constitutionally exempt from vaccinations, courts in this Eastern District have resolutely found there is no such constitutional exemption." Plaintiffs "opine that [the Supreme Court decision] is bad law and ask this Court to overturn the Supreme Court decision, [but] "this the Court cannot do."" The court dismissed their equal protection and substantive due process claims just as quickly. Plaintiffs plan to appeal the case. The school system welcomed the reaffirmation of its policy, as public health officials indicate that "some diseases are experiencing a resurgence in areas with low vaccination rates."
More on the backstory here.
June 30, 2014 in First Amendment | Permalink | Comments (0)
Thursday, June 19, 2014
Student Internet Speech Draws Media Interest after Lengthy Suspension
The now well-publicized federal lawsuit filed this week by a former high school student after he was suspended for a two-word post highlights the continuing difficulties that school officials have regulating off-campus internet speech. The student, Reid Sagehom, was suspended from Rogers High School in Minnesota for his response to an anonymous question on an unofficial student website asking if he had made out with a female school teacher. Sagehom responded, sarcastically, he says, "Actually yeah." The school then recommended Sagehom be suspended, ultimately for ten weeks, because he "damaged a teacher's reputation." Sagehom filed a complaint on Tuesday alleging that his speech was protected and that the subsequent events to the post, including being referred for prosecution and publicly upbraided by a police chief, violated his First and Fourteenth Amendment rights. Sagehom's complaint may likely never reach the decision stage, but raises issues that continue to bedevil the federal courts -- when does students' off-campus internet speech actually cause a substantial disruption to the educational environment under Tinker? Read the complaint in Sagehom v. Independent School District No. 728, 2014 WL 2724866 (D.Minn. June 17, 2014) here.
June 19, 2014 in First Amendment, News | Permalink | Comments (0)
Monday, June 16, 2014
Supreme Court Denies Certiorari in Case Involving Public School Graduation in Church Auditorium
The Elmbrook School district in suburban Milwaukee conducted high school graduation ceremonies in the auditorium of a church. The district's decision was based on its school's inadequate space and air conditioning. The graduation itself was completely secular, but some the church's religious symbols remained in the auditorium during graduation. The Court of Appeals held that holding the graduation there conveys the message of government endorsement of religion and, thus, struck down the practice. The Supreme Court denied certiorari in the case today, although the denial drew dissents from Justices Scalia and Thomas. You may recall that earlier this term the Court upheld the practice of prayer at the beginning public meetings as a non-coercive historical practice.
June 16, 2014 in First Amendment | Permalink | Comments (0)
Monday, June 9, 2014
North Carolina Legislature Passes School Prayer Bill
Following a number of school religious expression bills introduced in state legislatures in the last year, the North Carolina House passed a bill last week that allows public school students to pray, express religious viewpoints, pass out religious materials, and assemble "as is given to other noncurricular groups without discrimination based on the religious content of the students' expression." The N.C. House approved S.B. 370, which also provides that school employees who are viewing student religious expression "shall not be disrespectful of the student exercise of such rights and may adopt a respectful posture." The bill will have to return to the state senate for final approval, where it is expected to pass. The ACLU of North Carolina released a statement objecting to the bill's language which it says could leave school officials unclear about the rules, particularly as adopting "a respectful posture" could communicate approval of one religious view above others. In application, the legislation is certain to highlight the tension between the Establishment and the Free Speech and Exercise Clauses that currently require public school officials to show neutrality in their treatment of religion and not inhibit student expression of privately-held views as long as that expression does not infringe upon the rights of others. For an overview of the constitutional issues, read the ED's Guidance on Constitutionally Protected Prayer in Public Elementary and Secondary Schools here.
June 9, 2014 in First Amendment, News, State law developments | Permalink | Comments (0)
Wednesday, May 14, 2014
Massachusetts Upholds Pledge of Allegiance
Massachusetts' Supreme Judicial Court held in Doe v. Acton-Boxborough Regional School District that the pledge of allegiance does not violate the state constitution. Plaintiffs' claim was a denial of equal protection rather than religious freedom or establishment of religion. The court reasoned that (1) "the pledge is a fundamentally patriotic exercise, not a religious one;" (2) "no student is required to recite the pledge;" and (3) "[w]here the plaintiffs do not claim that a school program or activity violates anyone's First Amendment religious rights (or cognate rights under the Massachusetts Constitution), they cannot rely instead on the equal rights amendment, and claim that the school's even-handed implementation of the program or activity, and the plaintiffs' exposure to it, unlawfully discriminates against them on the basis of religion."
Plaintiffs' had argued that the Pledge "stigmatize[d]" and "marginalized" some students, making them "feel excluded." Per its third point above, the court emphasized that their was no evidence "that their children have been punished, bullied, criticized, ostracized, or otherwise mistreated by anyone as a result of their decision to decline to recite some (or all) of the pledge." Rather, plaintiffs' claim was
more esoteric. They contend that the mere recitation of the pledge in the schools is itself a public repudiation of their religious values, and, in essence, a public announcement that they do not belong. It is this alleged repudiation that they say causes them to feel marginalized, sending a message to them and to others that, because they do not share all of the values that are being recited, they are "unpatriotic" "outsiders." We hold that this very limited type of consequence alleged by the plaintiffs -- feeling stigmatized and excluded -- is not cognizable under art. 106.(23)
Three weeks ago, I posted on a similar pending suit under New Jersey law. This Massachusetts decision would suggest the answer to my earlier question of whether state courts might treat Pledge challenges differently than federal courts is no.
May 14, 2014 in First Amendment | Permalink | Comments (0)
Wednesday, April 23, 2014
New School Prayer Lawsuit
Matawan-Aberdeen Regional School District in New Jersey is being sued over the Pledge of Allegiance. Anonymous parents and the American Humanist Association are bringing the suit. They argue that the the phrase "under God" in the Pledge of Allegiance discriminates against atheists. The pledge
publicly disparages plaintiffs' religious beliefs, calls plaintiffs' patriotism into question, portrays plaintiffs as outsiders and second-class citizens, and forces (the child) to choose between nonparticipation in a patriotic exercise or participation in a patriotic exercise that is invidious to him and his religious class.
. . .
While plaintiffs recognize that (the child) has the right to refuse participation in the flag-salute exercise and pledge recitation, the child does not wish to be excluded from it, and in fact wants to be able to participate in an exercise that does not portray other religious groups as first-class citizens and his own as second-class.
To bolster their claim that the Pledge reinforces prejudice against atheists and Humanists, they cite to studies showing atheists are the most disliked and distrusted group in the country.
Unlike prior claims brought and rejected under the First Amendment of the United States Constitution, this claim proceeds under the New Jersey Constitution, which may make a difference.
In Newdow v. Rio Linda Union School District, 597 F.3d 1007 (9th Cir. 2010), the Ninth Circuit held that the Pledge in school did not violate the establishment clause. It reasoned that the words "under God" cannot be read alone, but must be read in the context of the entire pledge. Based on this context, the court held that the pledge and this phrase were patriotic not religious. It also pointed out that
The Supreme Court has agreed the Pledge is a "patriotic exercise designed to foster national unity and pride." Elk Grove Unified Sch. Dist. v. Newdow, 542 U.S. 1, 6, 124 S.Ct. 2301, 159 L.Ed.2d 98 (2004). Even the dissent agrees on this determinative point. Dissent at 4040 ("[T]he recitation of the Pledge both as originally written and as amended is a patriotic exercise...."). The question about which we disagree is whether this patriotic activity is turned into a religious activity because it includes words with religious meaning.
The 2010 decision by the 9th Circuit, however, was a shift in course, as some earlier decisions in the circuit had found the pledge to violate the Establishment Clause. The past history, as described by the court in Newdow, follows the jump.
April 23, 2014 in First Amendment | Permalink | Comments (0)
Monday, April 7, 2014
From the School Yard to Cyberspace: A Review of Bullying Liability
Elizabeth M. Jaffe's roundup of the caselaw and literature on cyberbullying, From the School Yard to Cyberspace: A Review of Bullying Liability, is now available on westlaw at 40 Rutgers Computer & Tech. L.J. 17 (2014). Her introduction summarizes the article as follows:
There has been a lot of change--both good and bad--over the course of scholarship focusing on bullying and cyberbullying. With the growing use of technology, bullies have moved from in-person encounters in the classroom or the schoolyard to chatrooms, walls, pages, and the like in the cyberworld. Despite the increased awareness and media coverage, bullying remains a growing problem in today's society. To that end, there are current voids in the law that need to be revised in order to protect the countless and growing number of victims. Simply put, the law has not gone far enough.
Through my research and involvement with this area of scholarship, there are few things that are clear. The First Amendment protects speech and ideas in the traditional sense but fails to adequately adapt to the changing online landscape. Traditional tort principles of liability have not played out yet to holding a bully liable for his actions, and the notion of holding the webhost liable has not taken hold to the extent that may be necessary. As such, we are left with the dilemma of where the legal landscape needs to proceed. Specifically, some type of duty is needed for bullying liability. But to whom should this duty apply? Accordingly, the purpose of this Article is to synthesize my scholarship to date focusing on the issue of bullying and cyberbullying in the context of primary and secondary education and propose resolutions to the cyberbullying epidemic by reviewing the appropriate instances and individuals to whom a duty should be imposed.
April 7, 2014 in Bullying and Harassment, First Amendment | Permalink | Comments (0)
Friday, April 4, 2014
Second Circuit: Prohibiting Church Services on School Property Does Not Violate First Amendment
The Second Circuit Court of Appeals has reversed a district court's ruling that the New York City's Board of Education policy prohibiting religious worship services on school grounds violated the Free Exercise and Establishment Clauses of the First Amendment. In Bronx Household of Faith v. Bd. of Educ. of City of New York, the NYC Board of Education and the local school district appealed a district court's grant of summary judgment permanently enjoining them from enforcing a regulation (Regulation I.Q.) against a church. Regulation I.Q. permits outside groups to use school premises after hours for social and civic activities that are open to the general public, but prohibits the use of school property for religious worship services. In 1994, a local church, the Bronx Household of Faith, applied to use space in a local middle school for church services, but the NYC Board of Education denied the application under Regulation I.Q. Bronx Household sued, arguing that the enforcement of the regulation constituted viewpoint discrimination and violated the First Amendment. In this latest round of litigation —the case has been before the Second Circuit six times—the court of appeals held that Supreme Court precedent in Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), does not compel strict scrutiny analysis of Regulation I.Q. Lukumi does not apply to Regulation I.Q., the Second Circuit reasoned, because "a reasonable governmental decision not to subsidize a category of activity is not a suspect discrimination among religions merely because some religions do and others do not engage in that activity. . . We believe the District Court has misunderstood Lukumi in construing it to mean that a rule declining to subsidize religious worship services so as not to risk violating the Establishment Clause is automatically constitutionally suspect and subject to strict scrutiny." The court of appeals also found the process of determining if a proposed use of school facilities is a religious worship service would not cause an excessive entanglement with religion under the Establishment Clause. Because the Board relies on applicants' stated characterizations to decide if proposed activities are religious worship services, the Board does not define or make its own determination about what constitutes religious worship. Moreover, the Circuit stated, the Supreme Court's decision in Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 132 S.Ct. 694 (2012), would not prohibit the Board from making such a decision because 1) the Board would not impose any control over a church's religious activity by determining if they are worship services, and 2) the Supreme Court's own determination in Hosana-Tabor that the plaintiff was a minister (and thus that the ministerial exception applied to a church's employment decision) belies a conclusion that a governmental entity cannot make such a determination. Read the Second Circuit's decision in Bronx Household of Faith v. Bd. of Educ. of City of New York, 12-2730-CV, 2014 WL 1316301 (2d Cir. Apr. 3, 2014) here.
April 4, 2014 in Cases, First Amendment | Permalink | Comments (0)
Tuesday, March 25, 2014
The New Politics of School Vouchers: Privatization Masquerading As Constitutional Claims?
Yesterday, I had the opportunity to debate Richard Duncan in a Federalist Society forum on school choice. In my naivete, I had assumed the point of the debate was academic. Halfway through it, I felt compelled to point out to the audience that his arguments about religious freedom had moved well beyond constitutional doctrine or sound educational policy. Rather, he was forwarding a political argument masquerading as a constitutional claim. I revel in a good political debate as much as anyone else and said I welcomed a political debate, in which everyone would be entitled to their opinion, but the same is not necessarily true in regard to the constitutional and educational policy claims because there are certain baseline facts and doctrines beyond dispute there.
Nevertheless, I left the debate thinking our conversation was limited to a causal Monday afternoon luncheon. Today, my naivete was exemplified again. Stephanie Simon, of Politico, reports that taxpayers are increasingly bankrolling the tuition of students attending private religious schools. The current total investment in just 14 states is nearly $1 billion a year. Since 2010, those numbers are up 30 percent. Twenty-six additional states are considering measures that would add to this growth. I knew we had seen an uptick in recent years, but not this much. This rapid growth is being fueled by political lobbies. One pro-voucher group, the American Federation for Children, has spent $18 million on these campaigns since 2007.
Of course, this movement is not new. James Foreman's article, The Rise and Fall of School Vouchers: A Story of Religion, Race and Politics, 54 UCLA L. REV. 547 (2007), details how religious advocates for vouchers drew on inner city communities' interest in escaping failing schools to secularize their voucher claims, and how the Supreme Court then sanctioned it. But as charters became more readily available, inner city communities' interest in vouchers fizzled somewhat and, with it, the necessary political support to pass legislation. What is interesting in this new round of advocacy is that since the Court has sanctioned vouchers that place students in religious schools (because the overall program is non-discriminatory and the purported purpose secular), voucher advocates appear more willing to assert religious freedom, if not entitlement, as the basis for expanding voucher programs. They claim the state is discriminating against them if it does not provide them with vouchers. Current doctrine, of course, does not support such a claim. But pushing back against this claim requires that one sees it for what it is: a political claim. Moreover, it may not even be the politics of religion pushing it, but the politics of privatization, which use religious and minority interests as window dressing for a larger agenda.
March 25, 2014 in First Amendment | Permalink | Comments (0)
Friday, March 14, 2014
Should an Educational Leader's Testimonial Speech be Protected? by Scott Bauries
The following is a cross-post, curtesy of Scott Bauries at edjurist.com. Thanks Scott.
Imagine that you are an educational leader hired to head up an important community college program for at-risk youth. In your first days on the job, you do what any good leader does and audit the books. Through this review, you discover that you have an employee who is drawing a large salary from the program, but is not doing much, if any, work. You do some further digging, and you realize that this "employee" with the "no-show" job is also a sitting state legislator. You care about your fiduciary duty over the public money you've been entrusted, so you confront the no-show employee and request that she begin showing up and working. She not only refuses, but also threatens your livelihood. You are not a coward, so you fire her. Not only that, but when subpoenaed, you testify truthfully against her in her criminal trial once the feds discover her fraud. Soon after, you are fired.
You file suit against your former employer to challenge your termination as retaliation for your speech as a citizen on a matter of public concern. But the District Court, and later the Circuit Court of Appeals, reject your challenge, citing the Suprme Court's recent decision in Garcetti v. Ceballos. In Garcetti, the Court held that, "when public employees speak pursuant to their official duties, they do not speak as citizens, and the First Amendment does not shield their communications from employer discipline." Essentially, speech that a public employee is hired to make is not that employee's own speech, but his work product, and may therefore be the basis of employer discipline. The Circuit Court cites Garcetti and reasons that, because you testified only about matters you learned about at work, your testimonial speech "owe[d] its existence" to your employment, and was therefore made "pursuant to [your] official duties." Notwithstanding the Garcetti rule, the Circuit Court proclaims that it is immaterial that your job does not require you to testify in judicial proceedings, as long as your testimony is about your job.
Should this judicial sleight-of-hand resulting in an unbelievably expansive reading of the Garcetti exemption be allowed to stand? In Lane v. Franks, the Court will consider the question on alleged facts similar to those in the vignette above. Along with Professors Paul Secunda and Sheldon Nahmod, and on behalf of more than 60 other law professors, I have written an amicus brief (free download) arguing for the reversal of the 11th Circuit's flawed reading of Garcetti. The case will be argued on April 28th, and it could have major implications for public employees--including educational employees--nationwide.
March 14, 2014 in First Amendment | Permalink | Comments (0)
Friday, March 7, 2014
Ninth Circuit Upholds School's Suppression of American Flag T-Shirts on Cinco de Mayo Day
One of our recent posts noted the publication of R. George Wright's article, Post-Tinker, 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). Considering one of Professor Wright's points-- that we could dispense with Tinker in favor of allowing public schools' to control student speech based on (in part) their responsibility to teach civility and mutual forbearance-- a recent Ninth Circuit case might present a question of if wearing an American flag t-shirt is a breach of civility? In Dariano v. Morgan Hill Unified Sch. Dist., the Ninth Circuit upheld a school official's decision to require high school students wearing t-shirts bearing images of the American flag during a school-sanctioned celebration of Cinco de Mayo to turn the shirts inside out or go home after the school principal learned of threats of violence against the students. During a Northern California school's Cinco de Mayo day, several students wore American flag t-shirts to school, prompting comments from other students who viewed the students' shirts as a slight against Mexicans and Mexican-Americans. A year earlier, there had been threats and obscenities exchanged between a group of predominantly Caucasian students and a group of Latino students when the Caucasian students hung an American flag on a school tree and chanted "USA," in response to a group of students who had been walking around with a Mexican flag. The day of the flag t-shirt incident a year later, an assistant principal was told that some students were expressing displeasure about the American flag t-shirts. The assistant principal met with the students wearing the U.S. flag shirts and asked them to turn the shirts inside out or remove them, explaining that he was concerned that they may be attacked by students who supported the Cinco de Mayo celebration. The students acknowledged that the shirts might start fights, but refused to take them off. They were sent home with excused absences and stayed home two additional days after receiving threatening text messages. (Two other students were allowed to return to class because the shirts because they were wearing "TapouT," shirts that had a muted version of the U.S. flag.) The students who were sent home sued, alleging that the school violated their rights to freedom of expression, equal protection, and due process. In upholding the district court's grant of summary judgment for the assistant principal, the Ninth Circuit found that given the history of violence at the school, the school officials stopping the display of the t-shirts was a "tailored response" to "anticipated violence or substantial disruption of or material interference with school activities," and therefore the school's response was justified under Tinker. The Ninth Circuit found that the school's response was appropriately tailored under Tinker because while it suppressed the message on the clothing, they students were not punished for it and also allowed students wearing clothing with a less prominent message to wear their shirts. Read Dariano v. Morgan Hill Unified Sch. Dist. here.
March 7, 2014 in First Amendment | Permalink | Comments (0)
Tuesday, February 25, 2014
Educational Outcomes Versus Student Speech
R. George Wright's article, Post-Tinker, is now available at 10 Stan. J. Civ. Rts. & Civ. Liberties 1 (January 2014). The article argues that
the rise of computer communication by means of portable technologies [does not] necessarily condemn Tinker to irrelevance. It has recently been argued, for example, that "Tinker remains functional, and if properly applied to students' online expression, it can vindicate students' free expression interests while still allowing schools to properly regulate day-to-day student discipline and the educational process." And when we add in the options of modifying Tinker, as by abandoning either the first "disruption" prong or else the second "rights of others" prong, contemporary support for some version of Tinker is even broader.
At this point, however, it is fair, and indeed important, to ask about the likely consequences of radically abandoning Tinker. What might it mean, at this historical point, to abandon Tinker along with its qualifying and limiting cases? The discussion below pursues this question and eventually endorses just such a radical abandonment of Tinker. This is not an anti-student speech conclusion. It is instead a recognition of the importance of allowing public schools, if they so choose and within other constitutional and statutory bounds, to focus more on educational outcomes, equality, or other dimensions of the vital basic mission of contemporary public schools.
February 25, 2014 in First Amendment, Scholarship | Permalink | Comments (0)
Tuesday, February 11, 2014
Indiana's Private Schools' Creationism Curriculum Raises Questions
In Indiana, Establishment Clause questions are being renewed this week about private schools that receive public funds doing what public schools cannot: teaching Christian-based intelligent design doctrine and creationism with taxpayer-funded vouchers. Indiana's South Bend Tribune reports that the state's Choice Scholarship Program funds nearly 20,000 students to attend private schools with about $81 million of public voucher funds. Some of those private schools expressly state that they do not teach evolution as part of their curriculum, substituting faith-based texts for reading, history, and science classes. A recent article in Slate shows the growing amount of tax-credit scholarship and voucher programs going to schools that teach creationism as an alternative to evolution. Indiana's Choice Scholarship Program has not been challenged under the First Amendment's Establishment Clause, although the Indiana Supreme Court ruled last year that the Choice Program did not violate the state constitutional probihibition against funding religious institutions because the direct beneficiaries of the program were schoolchildren rather than the schools selected, and the state clause did not exclude religious teaching from public schools. Meredith v. Pence, 984 N.E.2d 1213 (Ind. 2013). Meredith's lawsuit challenged the state's voucher system generally (Indiana now has one of the most expansive voucher systems in the country), but Establishment Clause challenges could be coming.
February 11, 2014 in Charters and Vouchers, First Amendment | Permalink | Comments (0)
Thursday, February 6, 2014
Public School Credit for Private Religious Instruction: Did the Fourth Circuit Get It Right?
In August 2012, the Fourth Circuit Court of Appeals in Moss v. Spartanburg County School District Seven, 683 F.3d 599, (2012), held that a South Carolina statute that allowed public schools to give public school credit for private religious instruction did not violate the First Amendment's prohibition of establishment of religion. The court reasoned that
The School District employed a model in which primary responsibility for evaluating released time courses lay with accredited private schools, not the public schools. Thus, under this model, an unaccredited entity, such as Spartanburg Bible School, could offer a released time course and assign grades to participating students for transfer to the public school system if it received a stamp of approval from an accredited private school. In this manner, the released time grades are handled much like the grades of a student who wishes to transfer from an accredited private school into a public school within the School District; the public school accepts the grades without individually assessing the quality or subject matter of the course, trusting the private school accreditation process to ensure adequate academic standards.
This model has enabled the School District to accommodate the desires of parents and students to participate in private religious education in Spartanburg County while avoiding the potential perils inherent in any governmental assessment of the "quality" of religious instruction.
A new article by Samuel R. V. Garland-- Moss v. Spartanburg County: How the Fourth Circuit Got it Wrong and What it Means for the Future, 48 Wake Forest L. Rev. 1075 (Fall 2013)--dissects this case. He argues that the Fourth Circuit effectively collapsed the three separate prongs from Lemon v. Kurtzman into a singular conclusory analysis about the statute's constitutionality. Separate consideration of each Lemon prong, or application of the coercion or endorsement tests from other Supreme Court holdings, would have demonstrated that the statute was unconstitutional.
February 6, 2014 in First Amendment | Permalink | Comments (0)


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Should the ABC be privatised?
The media landscape is changing and will continue to change over the next decade or so, but what does that mean for the ABC? Will there still be a place for a national public broadcaster or should it be privatised? If it was would the current televison and radio programs still be on air, and would privatisation 'fix' the perceived left leanings of the staff of the ABC?
No Australian political party has said that this would be an option and 89% of Australians believe the ABC provides a valuable service to the community, but what might the future hold for Aunty?
- Tom Switzer
- Editor of Spectator Australia. Research associate at the United States Studies Centre at the University of Sydney.
- Title
- Really Dangerous Ideas
- Author
- Various
- Publisher
- Connor Court
- 978 1 922 168 092
- Description
- Edited by Gary Johns
- Interviewer
- Amanda Vanstone
Comments (63)
Alan Ward :
10 Jun 2013 4:36:40pm
Tom Switzer's examples of supposed bias on the ABC were weak and lame. Pifling minor examples not fixed by privatisation
James :
10 Jun 2013 4:42:20pm
Brilliant Idea Tom. We've all seen how beneficial it is to society to introduce the profit motive to yet another publicly owned gem!
Privatize the ABC and we'll have another voice of the Centre to Far-Right.
When we have a big enough consumer base to support an MSNBC type of Broadcaster then.... Perhaps?!
Sally Curry :
10 Jun 2013 4:44:54pm
The taxpayer funded ABC is the only refuge for those of us who don't want to be subjected to a barrage of advertisements.
In particular, some of the junk food ads are shamelessly presented to children.
I don't mind my taxes funding ABC radio and television.
Tamsin :
10 Jun 2013 4:47:25pm
Mr Switzer's ability to rationally analyse a position was incredibly poor. As Ms Vanstone pointed out, he gripes about the ABC and automatically says 'privatise' to solve perceived bias. Yet he was unable to show to the tiniest extent how privatisation would help! And he did not even consider that perhaps the private sector would reduce even further their service to, and coverage of, rural areas.
martin :
10 Jun 2013 4:49:58pm
the reason why the ABC should not be privatised is that it would turn into a garbage network like all the other commercial networks with advertising every 10 minutes and low budget moronice life wasting productions. the reason for privatisation is often given to save the public money. a commercial ABC network would cost the same "plus" a fat proft matgin. currently we do not pay the profit margin, buy it will be there, even if it's through the price of the products that support the funding -everyone knows there's no such thing as a free lunch, except your guest it seems.
Bill Payne :
10 Jun 2013 4:50:29pm
The moment Mr Switzer pronounced the word "plethora" as "pleth-AWRA" instead of "PLETHhurra" I knew I was listening to someone with limited education. His subsequent comments simply confirmed this view.
Renato Bright :
10 Jun 2013 4:57:36pm
The ABC is the ONLY media organisation in Australia that can be trusted - most of the time.
Were the ABC privatized it would take on the bias dictated by its owners and editors such as currently happens in all commercial media outlets in Australia - e.g. the obscene Murdoch media empire!
The charge of 'bias' at the ABC is purely in the eye of the beholder. Ms Vanstone and Mr Switzer see left wing bias at Lateline whereas I see right wing bias at the 7:30 report.
On Balance, the ABC gets it right most of the time. So, no to privatization. Get your hands off the ABC!
Dave :
10 Jun 2013 6:55:44pm
Well done Amanda. I think you have got it right. I would welcome any attempt to balance perceived ABC bias, but not dismantling the ownership. I also think we are accumulating plenty of examples post-mining boom, of "market failure" and privatising the ABC should not become another another such disaster.
Paul Pott :
10 Jun 2013 7:09:10pm
Is this chap Switzer for real? I consider my self left wing and for the life of me I can hardly remember anything that I would call remotely left-wing recently on the ABC. He also seems to think the AKP are left-wing. Good lord!!
bob :
10 Jun 2013 8:04:45pm
Maintaining the balance does not require the ABC to do a survey and then by the minute apportion out air time to every major/minor point of view. It maintains the balance by filling in the gaps (that is more efficient). Of course this would tend to be left leaning at times when the majority of the media is right leaning. Also it's difficult when you start to actually study the world and get an education to not drift somewhat to the left (yes Africans are people too). Consider something as simple as classic fm. I hate classical music (as do most Australians) so in the past I always wondered why we have to waste a station on it, then I met a surgeon who operated on a relative of mine in an emergency, he had just come from the opera. Then it dawned on me, we have these minority broadcasts so that everybody can have a little of something they like, that way we attract and keep clever people in this country.
By the way Amanda, either say "an 'orrible" or "a horrible", not "an horrible" (that's trying too hard)..... the 'n' is there to make up for the dropped 'h'... got that guv'na
Alen :
11 Jun 2013 2:12:02am
Disclaimer or caveats or not, leave the ABC alone!
The taxpayer's money objection is invalid if the majority of the population, as appears to be the case, supports and wants the ABC.
The reason for not having the ABC privatised is that we want a government maintained broadcaster which therefore does not have to kowtow to the dictates of the advertising industry in its presentations.
The privatisation of the Commonwealth Bank was no obvious success, since it allowed the whole banking system to impose all kinds of fees and charges on depositors, without any government bank available any longer to influence these profit-grabbing exercises.
Jeff Poulsen :
11 Jun 2013 5:49:34am
There are few institutions that have served Australia so faithfully. (I include CSIRO in the few.)
Why not privatise,
- The Police
- The Army
- Parliament
Seriously, get a grip!
Ivan :
11 Jun 2013 11:04:29am
Tom Switzer's "dangerous idea" is driven by ideology more than logic or even economics. We don't hear taxpayers complaining about the 10 cents a day going to the ABC because we value the ABC. We didn't complain about the coverage of President Reagan's funeral or anyone else's funeral and we don't share Tom Switzer view that this is a reason to privatize the ABC.
Phil Trenton :
11 Jun 2013 11:34:55am
Amnanda Vanstone and her guest would do well to listen to Tim Bowden's to the point rebuttal about ABC bias on Late Night Live later that evening.
Would also add that when ABC staff leave to enter politics almost as many join the Liberals as the ALP. I once heard ABC host Emma Albericci mock those against privatisation There was plenty of coverage about Thatcher on ABC and Tony Jones even interrupted Q and A to announce her death. Reagan was not given so much coverage because he had been out of public life so long and it was Gorbachev who brought down the Soviet Union - it was going to implode anyway due to its internal contradictions and problems.
Not only should the ABC stay publicly funded the govt should also fully fund SBS so we can get rid of the infuriating ads ! raise taxes, but please get the ads off SBS.
Sue :
11 Jun 2013 3:11:45pm
You know I think that all of these so called conservatives should go back and read The Waste Land by T S Eliot. A poem which accurately described the condition of Western culture in 1928. Meanwhile, 85 years later the situation is far worse by an unimaginable degree.
Assuming there is still an important place for radio and TV in the culture of todays Australia, and taking into account the faults and limitations of the ABC it is the only bulwark against what remains of Australian culture from becoming a total Waste Land.
Victoriana :
11 Jun 2013 3:53:56pm
Interesting programme on Monday. Thank you Amanda and Tom.
So many people are (and have been for years) disgusted with the heavy left bias at the ABC. Tony Jones frankly is disgusting- a sniggering, grinning adolescent fool full of himself with his silly, immature, snide remarks. Lateline is more of the same and Kerry O'Brien et al the same again. So why when so many people complain about this lot isn't something done about them? Or is it because many people just don't watch their twaddle any longer?
There is no need to privatise the ABC just get rid of these left wing wallies and get some more balanced reporters and commentators in. Most of the other programmes are great. No private company would run the majority of programmes the ABC runs - they are not commercial enough and where would the profit be for them? I say keep the ABC but get some grown-ups in there and get rid of the Year 7 mentality types once and for all- then we will all be happy.
Oh one other thing let's have some better programmes on ABC TV- not the trashy, smutty shows leave them to the commercial channels.
Shane 2 :
11 Jun 2013 8:08:52pm
The problem with corporate media is it is owned by wealthy people who have a natural bias in favour of low taxes for the wealthy and other right things the wealthy tend to like. The Murdoch media is biased to the right. What do we do about that?
Annabelle Lukin :
11 Jun 2013 8:49:52pm
How about the ABC just asks its guests to declare who funds them? Like on The Conversation? that would get rid of a whole lot of the wind bags funded by the Coal lobby, the Tabacco loggy, the oil lobby, the "defence" industry lobbyists, etc.
davidlb :
12 Jun 2013 12:57:29am
We should have a vote on privitisation of ABC.
I vote NO
Colmery :
12 Jun 2013 1:34:03am
An interesting aspect of this debate is what it suggests about the real world of politics. The ABC gets nothing like a majority of voters in its audience yet it is political suicide to sell it off or discontinue its funding. If you are in a hurry to know the truth of this, ask any bookie if they would take your money at 100 to 1.
The loony left and the loony right are responsible for the majority of the drama political reporters use to create the entertainment that fills the tolerated politics component of media output. Doing this is just the business of the media and is not intended to foster delusions, it just does. The interesting real world bit is that we all think we are normal.
Herb :
12 Jun 2013 6:51:04am
Say no more, how can one eye see what the other blind one missed. Over 66% of ABC journalists admit they vote Labor or Green and the rest won't comment so the argument is lost.
I am sick of the never ending cost to the tax payer, their budged should be cut.
jennifer :
12 Jun 2013 9:01:28am
I feel it is worthwhile to regularly review Govt. funded entities. However, a quick analysis of commercial medias news and current affairs offerings makes the maintaining of the ABCs news and current affair departments essential. I find it difficult to imagine a commercial media company providing a higher quality or wider range of products. Selling off the ABC seems to be a drastic solution to issues that affect only some of ABC programs, and assumes the issues cannot be addressed by using less drastic techniques.
T.Williams :
12 Jun 2013 9:02:34am
Tom Switzer...Tom Switzer....where have I heard that name before? Oh yes, I remember...it was a phone interview with Alan Jones, where he was waxing lyrical about how badly Obama was really doing in the US Presidential elections, and how Mitt Romney was looking good as the likely winner. And here's another piece of Rightist brilliance.
zacsprint :
12 Jun 2013 9:31:27am
Well if the ABC needs to be 'fixed' what will fix the vast rabid right wing media run by the few in Australia Mr Switzer?
endwire :
12 Jun 2013 10:56:27am
Every time I read this argument about left-wing bias on the ABC, I remember an example I thought of to demonstrate the term "perspective": When viewed from the right, even the centre appears to be on the left...
12 Jun 2013 11:43:25am
I feel that privatizing the ABC will not work in getting rid of the left leaning political thinking. Just have a look at the Fairfax group. Maybe a truly independent arbitrator is needed to keep the whole MEDIA in check
Sick of illiberal Liberals :
12 Jun 2013 11:52:34am
And as another "Counterpoint" will we now see Amanda proposing nationalizing BHP and the multinational miners, on shock-jock radio?
Didn't think so. She's only there to sink the boot into moderate voices like the ABC of whom she can take advantage and put out extremism like this.
Yes, extremism is a "Counterpoint" to the otherwise moderate and sensible views of the ABC. Congratulations Aunty on having such a wide range of views!
tomtoot :
12 Jun 2013 12:04:07pm
Left wing ABC?
What the heck is Peter Rieth doing writing his garbage or commenting on the Drum if the ABC is leftist.
Leigh Sales is considered a lefty because of the fact that she challenges the stupidity of some politicians.
Nick Ross no longer has a forum to explain the folly of Mr Broadband - gagged - the ABC is already a mouth piece of the LNP party
And the topic is to sell or not sell because of leftist tendencies?
Wow - what a contradiction?
Fred :
12 Jun 2013 12:10:39pm
Another outrageous claim . The "politically correct" those that write for the likes of Murdoch simply don't like opposition to their views. A great failing of Australian democracy is the lack of diversity in the media as well as truly independent public broadcaster
tomtoot :
12 Jun 2013 12:19:14pm
Privatisation of the ABC = Murdoch - no thanks
Raise taxes to provide an ABC as is - even with bias Peter Rieth type of contributors.
tomtoot :
12 Jun 2013 12:25:16pm
Peter Rieth and Amanda Vanstone produce propaganda for LNP purposes on the ABC
Now! why is the ABC being accused of a lefty slant?
Is Rupert involved in this stupid proposal
Bruce Stockwell :
12 Jun 2013 2:53:50pm
The ABC must remain independent of sponsorship -- so it can never be privatised. Any suggestion that it ought is tantamount to treachery.
The ABC is now the ONLY mouthpiece not affected by the likes of Murdoch, Fairfax and big business.
Even SBS has adopted the practices of commercial television since it now relies on advertising to fund its activities. SBS should also be funded through the public purse not private enterprise.
Hinton John Lowe :
13 Jun 2013 8:40:25am
It is, literally, a shame that excellence in intellectual effort and accomplishment is being continually depreciated in public political discourse. Science antagonism and denial of its findings and predictions is rife. Logic and facts, frequently even conscience, do not guide, or constrain discussion. Even having accomplished a tertiary level education is being demeaned or ridiculed. Let alone higher order scholarship and research competence. As if we're not going to need application of all that's best of human capacity, including for thought, to devise responses to the new highly complex and seemingly intractable problems. Reminds me of Bertrand Russell's aphorism, 'Most people would rather die than think; and they do.' As for the value of things, including the ABC, Wilde's words describe the case put in this program – people who know the price of everything, and the value of nothing. If the value of everything consists only in what it can be exchanged for, then this vicious circle entails either that nothing has any value whatsoever, or anything can have only some arbitrary worth to be assigned by fiat. And everything is fair go in the marketplace – replete with value-adding by marketing propaganda, even the sexualisation of children not out of bounds in order to grow the insatiable consumption which is the real function of the market. The conundrum is not resolved by introducing money into the picture – even when it's fetishised, magically, as the only thing of 'real' value: a sort of metaphysical quasi absolute. Regardless of these perplexing tangles, it remains true that consent of the governed is only valid if it's informed. We would not regard our acquiescence in the surgeon cutting us open as consent, unless we had been well informed of its purpose, and likely outcomes, including risks. The ABC is crucial in this process of ensuring that our consent to be governed is informed. It would not be happening if information were all to be in the hands of marketers and propagandists, as most of the other media appear to be.
jules :
13 Jun 2013 12:45:34pm
Tom S's concern for the taxpayers' dollar avoids the funding realities of commercial radio and TV. These services are not free. They are paid for by the money raised from advertising, which of course comes out of the pockets of each and every Australian whether they like it or not.
I don't know how others feel but I'm not particularly thrilled that a size able percentage of the cost of most products is siphoned off to pay for advertising and more indirectly, for maintaining organizations like commercial TV to do that advertising.
In reality I have to wonder if Tom S. gives a toss about the taxpayers dollar. Isn't the point quite simple ... the extreme right want to silence anything to their left.
As an aside; If Regan's life was so worthy of analysis, why couldn't the combined strength of the commercial networks come up with a fitting tribute? No profit in it?
Long Huynh :
14 Jun 2013 2:37:20am
Victoriana, you are right to distinguish privatisation and operation of the ABC are two different issues. So, in order to determine should the ABC be privatised or not we may examine these issues under different angles rather than to use rhetoric to fool people.
Individuals or groups have the rights to express their view and a democratic society takes equal consideration for all in decision making process. Although after ratification, the society still bears the cost if things have gone wrong and evil has been done due to the corruption of certain powerful minority group. Therfore aiming to short-term economic benefits should not disregard longterm social cost.
The Australian economic reform over 1980s 1990s (bi-partisan consensus) included privatisation of states enterprises such as Telecom and Commonwealth Bank, increase competition, financial liberation and central banking control. The income growth generated by this reform can be seen as a huge success in economy. However, this income was not equally distributed amongst sectors of population had caused inequalities in wealth. Consequently, anxiety, anger, and resentment became suitable platforms for social conservative agenda to grow.
The birth of 'Hansonism' which represented for 'ordinary Australian'/'the grassroots', under a form of political ideology, expressed a range of social, cultural, and economic problems. This ideology with the immature in politics quickly seized, adopted then modified, under Howard government, to transform to the political tools that wickedly played into broader electoral strategies of the Coalition government. The politics of asylum was based on building a wedge between elite and mainstream, appealing to a tradition of racism and manipulating traditional security anxieties.
Fear, hatred and prejudice amongst Australian communities are reasonable. They reflect a deep concern to protect the society by demanding justice and equality, a more democracy and a more accountable government.
Oligarchy is a group exercising control for corrupt and selfish, a group that accumulates income, assets and power disregards any crisis and cost imposed on the society. Interestingly, some of its valuable assets are politicians and media. Who chooses the media director and editors and who manage the reporters? Whose stories are exploited and what matters to be distracted from public attention? Who if not the owners and they always pursue their own interest.
Should the ABC privatised? Please forget the left, the right, the whatsoever. Please consider a big picture for Australia. We were divided by many conspiracies that exploits our security anxiety. Please raise up protect our society from racism, sexism and whichever nasty product possibly invented in coming future.
bjb :
14 Jun 2013 10:23:22am
Just listened to this, and I'd like to make two comments.
1. Switzer said that whenever a right of centre guest is on Q&A there is a snigger at their contributions. With the exception of Malcolm Turnbull, nearly all the right of centre guests on Q&A sprout such arrant nonsense (and generally unchallenged factual inaccuracies) that it's hard not to laugh at them.
2. Switzer claims there is left wing bias in the current affairs output of the ABC, and somehow if it were privatised that might be balanced. One thing the likes of Switzer never complain about is the rabid right wing bias of commercial radio. Given that FTA radio and TV are able to broadcast on a scarce public asset i.e. the spectrum, why are they not required to be balanced too ? You might say that they pay for a broadcast licence, but AFAIK, no licence has ever been terminated or not renewed. If I want to start a radio station with left-wing shock jocks, I can't - no spectrum. The right wing shock jocks can blather all they like via streaming on the Internet, but the FTA spectrum should have some requirement for balance or right of reply, just as is required by the ABC.
rose nooteboom :
14 Jun 2013 1:38:46pm
Tom's critque of Q and A and a 'left wing bias', that does not reflect the 'majority of middle Australia being just right of centre' and it not being fair that they are not represented, seems to suppose that there are no other tv or radio that DOES represent the right.
Tax payers fund the right thanks to tax breaks that those organisations are entitled to. This 'tax payers shouldn't pay' is a red herring.
Annie :
14 Jun 2013 1:40:33pm
Give me a break. Ronald Reagan was a has been actor who was a puppet of the Right.
The Drum publishes the facts. I can't stand the Ads &
commercial TV. SBS & NITV are the only viable alternatives.
Gregory Neal :
14 Jun 2013 1:45:42pm
Tom Switzer doesn't understand that healthy democracy needs a strong independent media. A quick look at privately owned media in Australia demonstrates little diversity, poor balance and quality, and myopic view of current affairs.
Without a publicly funded independent ABC, democracy would suffer and we would all be worse off. This guy sounds like Rupert Murdoch's lap dog.
David R Allen :
14 Jun 2013 2:22:31pm
Tom makes the common mistake of anyone of any colour, left or right, who screams bias. If media says something I don't like, it is bias. If it says something I like, it is good journalism.
A fiercely free and independent 4th Estate is vital to democracy. Every journalist everywhere must be able to report what they see, with zero influence from the media owner. It is only with an independent 4th estate, that governments can be held to scrutiny. You can't have a functioning democracy with a free and independent media.
Journalists that work for a media owners are subject to editorial control, whatever political colour that media owner brings to the table. The only bastion of independent coverage is the ABC and the SBS.
America is heading for a failed state because the media has decided they are players, not reporters. They want to play the "Game of Thrones". On a recent visit to the US I tried to absorb as much media as I could. FOX is like a 24 hour political advert for the Republicans. NBC is the same for the Democrats. This 4th Estate has failed, because they are owned by media proprietors who have political agendas. If I pay the wages, you will say what I want you to say. That is what will happen to the ABC if privatized. This is what Tom is selling.
Tom fails to understand his very own right wing free enterprise market driven world. The reason the 3 commercial stations put up programs that can't even be called dross is that they make the most money. You know, "free enterprise". If you start from a position that all adverts are a total lie, and work back towards the centre, you will know why I never watch adverts.
A privatized ABC would never show The Checkout for fear of offending sponsors, which exposed the adverts all over the private media for what they were, insults to intelligence. And Tom would have these on the ABC.
The reason there are no quality programs on the commercial channels is that they must target the lowest common denominator. They must appeal to the biggest audience. The very second you privatize the ABC, it will be showing The Biggest Looser, and CSI (Big Hair) Miami where DNA results are obtained in minutes.
It will be Tahrir Square in Australia if anyone tries to privatized the ABC, the last bastion of sanity.
I'd rather minds in gear than bums on seats. (Ratings)
David R Allen :
14 Jun 2013 2:36:40pm
An addendum to my last.
Driving home from work just before 6pm, I heard that Libya had erupted in riots. A breaking major story.
I dashed inside, flicked on Channel 9 thinking this will be the lead story, but no.
The lead story for 3 minutes was that Ben Cousins, the wayward footballer was having a child. The article went on and on until the last few seconds when the news reader said, "Full details are now available in the Women's Weekly." The lead 3 minute story on National Nine News was an advertorial worthy of Alan Jones, while Libya, you know, Colonel Gaddafi, was burning.
That is why the ABC must never but subject to decisions based on money, ownership or advertizing revenue.
Peter Jenkins :
14 Jun 2013 3:08:17pm
Unfortunately privatisation will mean end of balance reporting in Australia.
It's difficult to find neutral media in the US but the Europeans with long tradition of public broadcasters does have some v neutral media.
Sadly ABC already going the American way, viz LNL, Counterpoint - the debate tends to be v onesided. The best programs are those where you have differing viewpoints as opposed to a mono viewpoint, but private media companies tend to shy away from them.
Rupert's domination of Oz media means that debate here verges toward hysteria & ranting.
We need public broadcasting to maintain diversity of view.
Stephanie :
14 Jun 2013 3:17:23pm
Australia is and always has been a conservative materialist country, subservient to superpowers; firstly to Britain and then to America. And capable of repeating this same mistake. Condemnatory of those who show themselves to be different,Australia is suspicious of change and slow to effect it, with an intense dislike of women, always behind the progressive European movements. There's an immaturity in all this.
As Timothy Bottoms said on Drive to Walid Ali on Tuesday 12 June in his interview about his book: "Conspiracy of Silence: Queensland's Frontier Killing Time" Australians shoot the messenger. Canada colonised at the same time as Queensland but struck a peaceful treaty; we didn't and slaughtered instead. Same thing regarding the defiling of women; e.g. the menu humiliating the PM, the Defence officers humiliating women. the message doesn't get listened to, over and over again.
The guest objected to Bob Carr's eulogy to Gore Vidal and bemoaned his criticism Of Margaret Thatcher. Well look at some facts; i.e. what the latter did to the British people who suffered her! Are their criticisms wrong?
For example, opposition to improvements in public transport (LNP doesn't want the new Melbourne-Brisbane rail link),LNP support for coal based power generation with loathing for alternative power generation, intense dislike of women political leaders; e.g. LNP politicians standing next to a 'Ditch the Witch" banner at a political rally, LNP leader saying "Make an honest woman of yourself" to our woman PM...etc. etc...i.e. discouraging teenage girls from any aspiration to be leader of this country, because if one tries, this is what she can expect. Would you encourage a teenage girl to strive to be PM?
So when you talk of balance, oughtn't we to be striving for less conservative influence and more progressive thought, ideas and actions?
To label and categorise everything as a Left-Right divide does nothing to address the growing conservatism in both major parties.
The ABC is the only refuge from the onslaught of commercialism from media that intrudes into the lives of thinking Australians. It is our only forum that gives us the respect, the opportunity to have our say and hear intelligent debate of the issues that affect our lives.
Do you want to take that away from us too?
Bob Elliston :
14 Jun 2013 3:20:37pm
Well what about the Right-Wing bias in the ABC? In an Australia where Socialists never get any air-time and even that trusty and sensible moderate, Doug Cameron can rarely have his compassionate voice heard; and in an Australia that only escaped the near-fascist regime of John howard in 2007, only to drift back toward so many of his policies under Ms. Gillard, what makes anyone think that the ABC has a left-wing bias??? Mr. Switzer made a very weak case. His problem is that he is so far to the right that he'd see left-wing bias in anything. The ABC is fairly centrist, but it should give some genuine lefties a voice, then the neo-fascists might shut up about bias in the ABC.
Bob Elliston :
14 Jun 2013 3:24:40pm
Tony Jones seems to have a Right-Wing bias whenever I watch Q & A. Why would that be? Maybe bias is in the eyes of the beholder.
Bob Elliston :
14 Jun 2013 3:35:47pm
You're right, Paul, a person would have to be hallucinating to think that the Australian Labor Party is a left-wing outfit. Such delusional folks can imagine the ABC is leftist too, but that doesn't make it true.
Bob Elliston :
14 Jun 2013 3:53:35pm
I agree with you, Tamsin. Also Mr. Switzer cited the privatisation of the Commonwealth Bank, Quantas and Telstra, but has anyone evaluated those disasters lately? The Commonwealth became just another rip-off profiteering bank instead of the people's bank that was meant to keep the commercial banks to a fair standard by competing with them. Quantas has become an airline so degraded in reputation and so thoroughly out-sourced that fewer and fewer people want to risk flying with them. And Telstra has become the worst bunch of rip-off merchants of all - their level of service is at a very bare minimum. In every case privatisation has led to a loss of service and an increase in costs to the customer. Growing up in rural Oz I was weaned on the ABC; Australia would be a pathetic country without it. Privatisation would destroy the wonderful, ever-improving, community-building, educational and entertaining entity that the ABC has become. And, reading between his words, it seems that Mr. Switzer knows that.
Gederts Skerstens :
14 Jun 2013 5:50:46pm
"The taxpayer's money objection is invalid if the majority of the population, as appears to be the case, supports and wants the ABC."
Quite right. The Most of Us are the final Arbiter.
Just as in Switzerland, let's put this contentious view to Referendum. With the next election, to save time and money.
If the Most of Us say keep the ABC taxpayer-funded, that's the end of the dispute. If the Most of Us say stop giving it money, that's also the end of the dispute.
Ann Grocott :
14 Jun 2013 5:59:30pm
Have always thought that Counterpoint
was the best show on Radio National and have really appreciated you, Amanda, and the inciteful questions you put to your guests. I listened with great interest to Mr. Switzer and cheered when he said the things my friends and I talk about re the ABC....i.e, the bias, the hoots and denigration on shows such as Q & A (which I no longer watch) and Lateline. I am in my 70's and the ABC has been an enormous part of my life (I was an Argonaut) but for the last few years I have begun to turn it off and READ instead as I'm furious that the taxes - yes, I still pay them - I am clobbered with
go, partly, to the ABC (which should
be called the ALPBC).
Gederts Skerstens :
14 Jun 2013 7:09:38pm
"Even having accomplished a tertiary level education is being demeaned or ridiculed. Let alone higher order scholarship and research competence."
Interviewed, 'Leading Academics' have clearly stated "We're not in the business of Failing people". That is, everyone passes. Class Attendance is enough. Knowing more than when you started is irrelevant. Everyone gains from being in Universities, so everyone gets a Degree. A professorship if you're PC.
A Master if you're well and truly in the Lefty BS circle. Lots of yapping on ABC shows, paid by Us.
Dan :
14 Jun 2013 8:47:34pm
Please don't privatise the ABC! let us keep something that belongs to us all & covers a wide variety of subjects & genres. With a nation wide coverage on many formats. AM-FM-SW radio. Television, & online. All the commercial stations have been amalgamated & dish out nothing but shallow tripe. All due to privatisation.
This question should not even be asked!
Bob Elliston :
16 Jun 2013 4:30:01pm
Technically Bob, I think Amanda has it right about 'an horrible' or 'an hotel'. And I, like maybe 20% of Australians, LOVE the best of classical music. That's a guess, but it runs into the millions of people to be catered for. Cheers from another Bob.
spud :
16 Jun 2013 8:12:56pm
Great to see so many people commenting on this subject!!!!
Heard a similar slant on a fairfax station a couple of weeks ago. Same station that just sacked a shock jock. Of course they would like to see the abc privatised. But i doubt if many of the abc listeners would tune in to their station.
Keep the ABC in the publics hands!!!!
No privatisation.
Bob Elliston :
17 Jun 2013 3:42:10pm
Dear Counterpoint,
No blame to producers or Amanda for having Mr. Switzer on the program, but there are a number of points to be made in reply. Firstly, his case that there is left-wing bias on the ABC was very weak – he could only mention that Lateline neglected to memorialise Ronald Reagan. It seems to many of us that there is a somewhat right-Wing bias in the ABC. (Not as extreme right as The Australian, I hasten to add.)
In an Australia where the Socialist Alliance never gets any air-time at all and even that trusty and sensible moderate, Doug Cameron, can rarely have his compassionate voice heard; in an Australia that only escaped the incipiently fascist regime of John Howard as recently as 2007, only to drift back toward so many of his policies under Ms. Gillard, what makes anyone think that the ABC has a left-wing bias?
(In defence of that word 'fascist' I should remind the reader that fascists encourage nationalism, ethnocentrism, religiosity without spirituality, authoritarian leadership, the silencing of dialogue, an aggressive patriotism – with its displays such as flags, uniforms and anthems, plus a veneration of militarism and the 'warrior'. Fascists tend to be xenophobic, anti-democratic, anti-socialist anti-feminist and anti-humanist. Ring any bells?)
People like Mr. Switzer seem to think that the Australian Labor Party is a left-wing outfit. Such delusional folks can imagine the ABC is leftist too, but that doesn't make it true.
Mr. Switzer seems to have a serious cognitive bias – his problem is that he is so far to the right that he'd see left-wing bias in anything. The ABC is fairly centrist, but it should give some genuine left-wing people a voice, then such extreme right-wing folk might shut up about bias in the ABC.
It should be pointed out that there is NO left-wing equivalent of Counterpoint anywhere among the ABC programs. Late Night Live does not count just because Pillip Adams is a leftist. LNL is current affairs and debate; its guests are not overtly or exclusively left-wing in the way that Counterpoint's guests are exclusively and overtly right-wing.
Mr. Switzer also made no case that privatisation (and the obvious addition of advertising and the primacy of profit imperatives) would mean that a better service would be provided by the privatised ABC entity. I believe that it would be impossible to make such a case.
Australia would be a pathetic country without the ABC just as it is. Privatisation would destroy the wonderful, ever-improving, community-building, educational and entertaining entity that the ABC has become. And, reading between his words, it seems that Mr. Switzer knows that.
Ric :
17 Jun 2013 5:12:04pm
Hi I have listened to this program some time ago and have a comment to make. I feel that most government organizations should be partially privatized, but not in the sense that it is widely understood. I feel that every organization should have a basic budget and should they then wish to expand on this then that is entirely their own choice. I would also like to add that there are limitations here to be considered, namely where is the line between the two. That being private and public, can public poach from the private sector and vise verso,here is something to be thought over. I can't see a great problem here at all as I have only today theorized a scenario whereby a public institution such as a tertiary could possibly market copyrighted material and discoveries and the proceeds could be worked into their budget. Why is this good. Firstly, engagement between a tertiary institution and the private would and the private having more choice for and idea stream outside their own research and development. Secondly students would be more exposed the thrust of the private sector, which is one form of competition between institutions.
jules :
18 Jun 2013 5:18:18pm
Bob and err, Bob,
as I understand it "an horrible" is simply wrong. An 'otel has its origins in the french pronunciation of the word hotel as 'otel. At least this has some sort of justification though perhaps it too is more than a little pretentious?
John Howard frequently used "were" when he should have used "was". It's an error or perhaps affectation, that has a similar slightly pompous quality to it.
What does the ABC guide say/
Hinton John Lowe :
23 Jun 2013 12:04:41pm
So sorry you have evidently had such a poor education experience, and outcomes. Perhaps fewer will miss out if the Gillard education reforms reduce the present enormous gap in resources between elite schooling, and the rest.
jules :
30 Jun 2013 2:58:49pm
You talkin' to me Hinton?
Unfortunately I had an excruciatingly good education and while I've probably forgotten a great deal of it, I haven't forgotten that "an" is used where the "h" is silent, as in "an honourable" or "an honest" but a is correct where the "h" is sounded as in "a horrible" or "a horrendous".
Funnily enough, I've heard "an horrendous" used by an ABC presenter but what I'm wondering how this usage has developed. I speculate [perhaps you can help me Hinton?] that it might things might have got out of control since "an 'otel" became a bit of fun.
Judith Legh :
21 Nov 2013 10:36:54am
I fully agree with you Victoriana, you have hit the nail right on the head, ABC's left wing bias is NOT perceived it is a fact as anybody with half a brain can see.
I have an open mind about most things & can be left wing about some things but far right about others...agree with you completely about about Tony Jones & Kerry O'Brien. Q&A is an embarassment now, but used to be good when it started up (hate thos morons & their tweets).
The ABC needs a complete revamp & should pay its own way with a bit of advertising as on SBS, which I watch more than the ABC.
Judith Legh :
21 Nov 2013 10:37:34am
I vote YES
Judith Legh :
21 Nov 2013 10:38:39am
John :
04 Jun 2014 5:55:32pm
The ONLY reason for privatising the ABC is to destroy it. If the Right want to hide in their conservative fantasy world, they can go to the Telegraph or Today Tonight. Conservatives claim to be in favour of free speech yet they seem so desperate to remove any alternative to their so-called news sources. If investors enjoy the content of the ABC and feel they could turn a profit, why not found your own broadcaster and use the ABC and SBS as a template? If the national broadcaster were privatised the chances are it would be nothing more than a cheap imitation of established networks, in place political talk shows and world cinema we would have American sitcoms and cheeses reality television. We'll there are already enough stations pumping out that kind of content, why would we need another. Of course there is also the "taxpayers money" thing which everyone seems to cart out when it comes to government policy they don't agree with. You pay taxes? Okay, great so do I and most of the world's population, that doesn't necessarily mean you should get to decide how it is spent.
No-one of Consequence :
28 Aug 2014 10:36:36am
I'm sorry Mr Bill Payne, but how does the pronunciation of certain words determine the level of someone's intelligence? Correct me if I'm wrong, but isn't the assumption that those who pronounce 'plethora' as 'Pleth-AWRA' instead of "PLETH-hurra' have had little education, highlight the lack of intelligence in those who make the assumption?
It must be difficult being so perfect.


text:
Diane Lefer: When a community sees daily injustice and doesn't see the rule of law equally applied, it becomes morally and ethically easier to choose to live in a lawless way.
Why Guatemalans, Mexicans and other Latin Americans are coming to the United States and the poor are becoming poorer in their countries.
Progressive Media Advocates
By Diane Lefer
Carole Bartolotto: The problem with concluding that GMOs are safe is that the argument for their safety rests solely on animal studies. These studies are offered as evidence that the debate over GMOs is over. Nothing could be further from the truth.
Margo McCall: There's increasing evidence that adopting a plant-based diet is better for human health, the planet, and of course for the more than 9 billion animals that are killed for consumption each year in the U.S alone.
Joe Mathews: Thanks to Xi Jinping, Chinese millionaires have propped up the state's sagging real estate market, universities, and companies.


text:
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