May
4th 2011
Brilliant Mistake

Posted under: American history, unhappy endings

That’s my final thought on this nearly decade-long “War on Terror.” (Sort of like George W. Bush’s “catastrophic success?” See the former Prez’s reaction to the death of Osama Bin Laden here.) I wish that I could push a button and talk in the past and not the present tense.

It’s May, so sorry about the glum. Here’s hoping more cheerful posting will resume tomorrow. As I said last night in the comments on the previous post, “I’m just really, really sick of living inside the smelly nutsack of the American bellicose unconscious for the past two days.”

Peace, out.

11 Comments »

11 Responses to “Brilliant Mistake”

  1. Indyanna on 04 May 2011 at 10:32 am #

    It’s not May either, it’s still April here, and has been since at least early April, if u look at the sky at least. If u could sock some basic fluff to us tomorrow, Historiann, that would be appreciated!!

  2. cgeye on 04 May 2011 at 10:55 am #

    This left me speechless:

    http://www.independent.co.uk/news/world/americas/cheerleader-must-compensate-school-that-told-her-to-clap-rapist-2278522.html

    And as troll repellent — this was not “he-said, she-said”:

    “In court, Bolton pleaded guilty to the misdemeanour assault of HS. He received two years of probation, community service, a fine and was required to take anger-management classes. The charge of rape was dropped, leaving him free to return to school and take up his place on the basketball team.”

  3. Indyanna on 04 May 2011 at 11:25 am #

    Speechless here too. I would vote to impeach members of a federal appeals panel that so held. Even if the wicked doctrine they rely on was tenable, to suggest the challenge was “frivolous” is stupefying. And the idea of any act of assault, sexual or otherwise, being legally a “misdemeanor…” ???

    Her parents should melt 450,000 pennies into a ball, rent a crop-duster, drop the ball through the roof of the principal’s office, and land on a highway in a more serious polity, like Chihuaua or Nuevo Leon.

  4. LadyProf on 04 May 2011 at 12:36 pm #

    cgeye, I think that story raised a hard question. No question that the school authorities behaved in a stupid, callous manner. Maybe they were even sadistic. And the part of the decision that ordered the student to pay the school was outrageous.

    But what the cheerleader had contended was that she had a First Amendment right to remain silent about this rapist while serving as a cheerleader. Certainly she had every right to quit the squad and boo the guy loudly from the stands. But if a cheerleader has a free-speech right to not cheer, then doesn’t a pharmacist have a right to refuse to fill a birth control prescription whenever his religion doesn’t approve? Do we teachers have a right to substitute political tirades for our lectures in class? In this lawsuit, both sides were wrong.

  5. quixote on 04 May 2011 at 12:51 pm #

    I don’t know if I’d say “Brilliant.” “Mistake,” yes. Yes, indeed.

  6. quixote on 04 May 2011 at 12:55 pm #

    And going off topic with everyone else… I think, LadyProf, that there’s a big difference between protecting the freedom to live according to different *beliefs* (opinions, religions, political systems, etc., etc.), and applauding a crime.

    A person with that guy’s record should not have been on the team from the moment his guilt was established. However, if the school wants to use criminals, asking others to applaud them seems well beyond the line of the freedoms protected by the First Amendment.

  7. LadyProf on 04 May 2011 at 2:39 pm #

    quixote, I agree that this guy should have been kicked off the team. And of course valorizing and protecting him was odious. But “asking others to applaud [criminals] seems well beyond the line of the freedoms protected by the First Amendment” inverts the problem. The school doesn’t have freedoms; the student has them. The student wasn’t forced to cheer for her rapist; she was forced to choose between protesting and keeping her position as a cheerleader.

    If I am a pharmacist who believes that no man should get his prescription for ED drugs filled unless he submits a permission note from his significant other, I am free to say so. But if I insist on living by this principle, I am not entitled to keep my job filling scripts at Walgreens.

  8. quixote on 04 May 2011 at 5:55 pm #

    LadyProf, we’re still talking past each other. Yes, of course the student has the freedom of speech. When the school puts a price on it — i.e. lose your high status position if you want to exercise your rights — it’s making the right meaningless. The only reason that’s not obvious is because cheerleading seems like a frivolous pursuit.

    Take it to an extreme. I’ll get fired if I exercise my right to speak, but according to the who-cares-about-cheerleading standard, that’s okay. Or if it seems that I should just go find another job if I want to have my rights, one can take it further. If I get physically pummeled for speaking, is that okay too, because all I had to do was not speak? How’s that different from being economically pummeled and not speaking? Or being socially pummeled (as in the cheerleader case) and saying that would be solved by not speaking.

    I don’t know if I’m getting my point across. If free speech can be punished, then it’s no longer free. By putting a price on the cheerleader’s refusal to cheer for a criminal, the school forced her into a position of supporting criminality. That is different from a pharmacist refusing to prescribe a legal drug.

  9. Indyanna on 04 May 2011 at 8:17 pm #

    There may be ways of getting at this without going down the vexed path of the various penumbral ways in which human behaviors have been construed legally as “speech,” and their rights tied to First Amendment analysis. She may have had the legal right to remain mute and motionless independent of any of that analysis. (Not a lawyer, but just saying she may have had if we think outside that particular box). Public institutions that people can or have to affiliate with obviously have some control powers over the conduct of their affiliates. A high school is deemed the “publisher” of the student paper and can therefore require the editor to act as its agent in the exercise of *its* speech rights. But there may be other ways of defining what her options were here, and of asserting limits to the institution’s managerial prerogatives. Compelled speech is a particularly repugnant thing.

    In any event, on the narrative in the link to the Independent story, a minor functionary like the principal, acting out of the chain-of-command and probably beyond his functional competence, by making a decision on the spot in the atrium of the gym, should probably be deemed to have abused his discretion, acted in an arbitrary and capricious fashion, and in the process forfeited the institution’s authority in the matter. If she had been called to a meeting the next day with the cheer coach, a guidance counsellor or two, and the school board’s solicitor, and told that she had to choose between her place on the team and her principles, it might have been a different story. There’s certainly enough ambiguity in the circumstances to preclude a finding that the suit was “frivolous.” In the U.S., anyway, maybe not in Texas.

  10. LadyProf on 04 May 2011 at 9:40 pm #

    But quixote, are you saying that the player’s being “a criminal” is key to your stance? Seems like a technical approach that leads to wrong answers. Bolton, the athlete, pleaded guilty only to misdemeanor assault and was not convicted of a sexual-assault crime. What if he had never been convicted of anything but had boasted of raping the cheerleader? Although I am a lawyer, my view wouldn’t rest on the criminal conviction.

    Part of the problem is a job (I have been comparing cheerleading to work), where it’s part of someone’s task to holler GO LADYPROF or the like. I’ve always thought that sucked. Once we accept the cheer-for-others work description, the job will unravel if individual employees have a First Amendment right to express themselves during game-time cheers.

    You didn’t like my pharmacist analogy; fair enough. How about a cheerleader who refuses to wear her assigned uniform and insists on cheering in a Grim Reaper costume to protest the Iraq War? Could the school prevent her from protesting that way while she participates in squad cheers? I think it could.

  11. Feminist Avatar on 05 May 2011 at 4:15 am #

    The other way to argue this might be: if cheerleading is a job, then her employer put her in an egregious situation by asking her to cheer for her rapist, and therfore, had she quit, it would have been effectively constructive dismissal. In this case, it is effectively wrongful firing.

    The equivalent might be if you, as a lecturer, are assaulted by one of your students, and your university still requires you to teach her/him. This would generally be seen as both an unreasonable expectation and a failure to protect an employee. I reckon the cheerleader could make a similar case.

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