no, why would I?
>
>>> I didn't ignore ANY of the above,
>>> and here is some of what I wrote in rebuttal:
>>>
>>> ___________________________ excerpt, with words of [name withheld] coming first __________________________
>>>
>>>
>>>> This was not about the rights of the teachers, it was
>>>> about the right of the pupils, and it was not a freedom of speech case
>>>> [but] an establishment clause case. The teachers are not party to the
>>>> proceedings, at all.
>>>
>>> But the memo of the teachers to the Board was quoted extensively
>>> on pp. 127-128, and the quoted part makes no reference to
>>> any violation of student rights, nor to religion at all. It begins with:
>
>> a) that does not make the teachers party to he law suit
>
> This was one of the shortcomings of the whole Dover trial:
> the very people who MOST OBVIOUSLY had standing to sue (see below)
> were not party to the lawsuit.
The teachers might have standing, but no case, as the precedents and
academic literature I cited amply shows. (on the "might" more below)
>
>> b) you, again, misread the sentence - it starts with "the students may
>> opt out",
>
> You are being illogical: there was NO misreading involved,
You claim, and I quote "the quoted part makes no reference to
any violation of student rights" and yet it starts with the statement
that this is about student rights.
and what you say
> next has no bearing on that allegation. As for your "again," you are referring to alleged
> behavior not in evidence.
Yes, I corrected you several times on this - if your memory fails these
days, it's all in the thread.
>
>> so yes, it is about student rights. The exercise of this right
>> is facilitated by the teachers, but the right to opt out is the students'.
>
> And so, there is no violation of student rights involved, just as I wrote.
> It would thus seem that, neither they nor their parents had standing to sue [1].
Of course the parents had standing to sue, and they did successfully. On
the establishment clause, both because of the speech to their children,
and separately on the grounds of the letters they received from the
School Board in both cases the school board, so the allegation, endorsed
towards them a partisan religious position. If they had not had
standing, the Dover trial would not have taken place.
They did not have standing to bring a compelled speech on behalf of the
teachers though
> The students were no more inconvenienced by opting out than
> they were by periodic fire drills.
No idea what you mean with this. The issue is that the school endorsed a
partisan religious position, being allowed to opt out to hearing it does
not change that fact. Now, if Scalia and Thomas have their way, that
reading of the establishment clause could change in the future, and
Thomas in particular would deny individuals an standing in such a case,
but the law in 2005 was clear in that point (and is so for now)
>
> More to the point: It's been well known for decades that students have
> the right to opt out of daily recitations of the Pledge of Allegiance
> to the Flag, but it would be silly to sue a school district for the
> continuation of this practice.
That's a Free Speech case, not an establishment clause case. Here the
children would otherwise be compelled to endorse a government position.
Note: the children. Different rules apply even there for teachers, and
while some states allow teachers to opt out, others don't.
Massachusetts for instance provides: "Failure for a period of two
consecutive weeks by a teacher to salute the flag and recite said pledge
as aforesaid, or to cause the pupils under his charge so to do, shall be
punished for every such period by a fine of not more than five dollars"
And Iowa is just now proposing an even more punitive law:
https://onlysky.media/hemant-mehta/pledge-of-allegiance-proposed-iowa-law-teachers-stand-or-be-fired/
That one could give rise to a constitutional challenge, but the question
would be if reciting the pledge in such a case is attributable to the
government (in which case the law would stand) or whether it would be
interpreted as the personal belief of the speaker, in which case it just
might fail. None of this applies in Dover, as the substantive part of
teaching is clearly the official duty of a teacher, not their personal
speech.
As Eugene Volokh puts it: "The government also doubtless had broad
power to compel speech by its employees, see, for example, Slocum v.
Fire & Police Comm'n of E. Peoria, 290 N.E.2d 28, 33 (Ill. App. Ct.
1972) (holding that a Police Department's requirement that its officers
wear an American flag emblem on their uniform did not violate their
First Amendment rights) (Eugene Volokh, The Law of Compelled Speech, 97
TEX. L. REV. 355 (2018).)
>
> [1] If I am right about this, who DID have standing to sue, and why?
> Besides the teachers, of course, as emphasized below.
Not sure what you mean with that. The parents had standing to sue on
establishment clause grounds, as they did, and won. The only people who
would have standing to sue for an alleged violation of the teacher's
free speech rights would have been the teachers, obviously. But see
below, I doubt that they had standing, at least at that point in time.
>
>>>
>>> "You have indicated that students may ‘opt-out’ of this portion [the statement read to students at the beginning of the biology evolution unit] of the class and that they will be excused and monitored by an administrator. We respectfully exercise our right to ‘opt-out’ of the statement portion of the class. We will relinquish the classroom to an administrator and we will monitor our own students."
>>>
>>> Note the clause, "our right to ‘opt-out’ of the statement portion of the class."
>
> Despite their pointing this right out, the school board did NOT rescind its unconstitutional
> mandate to have the teachers read the offensive statement.
> Hence they kept on having standing to sue.
Possibly standing to sue (doubtful on ripeness grounds), but definitely
no case to sue.
And the rest of your analysis of this passage is as flawed as the rest
of your analysis of the decision:
First, the teachers were not, in fact, forced to read out the statement.
The next sentence of the court decision makes this clear:
"Administrators were thus compelled to read the statement to ninth
graders at Dover High School in January 2005 because of the refusal by
the teachers to do so."
As long as they were not sanctioned for this refusal, their case would
not be "ripe" and hence they would lack standing, at least for now. But
this is all irrelevant, as the opt out only affects free speech
analysis, and the case is an establishment clause case.
And contrary to what you say, the teachers in their letter do not
claim a first amendment right. Rather, they claim it as a right from
their contract of employment. That is they argue that teaching their
pupils this ID crap would be a violation of the Code of Professional
Practice and Conduct for Educators. This means they could be disciplined
by their professional body. And as being in good standing with the
professional body is a condition of employment, the school board is in
fact asking them to breach their contractual duties.
It's an interesting theory, of course never tested by a court, I have my
doubts that it would succeed on substantive grounds, but they definitely
would not have standing at this point anyway, again a ripeness issue.
But nothing in their letter has anything to do with a constitutional
right of free speech unlike you they understand the Constitution well
enough to know that this could never fly.
>
>
>> Note the clause "that students may opt out". This is about the way in
>> which teachers helped students to exercise their opt out right.
>
> Irrelevant broken record routine noted.
Well, I will repeat the correction to your false statements every time
you make them, that's true.
>
>>>
>>>
>>>> and also no, teacher (or professors, for that matter) do not have have
>>>> the right to refuse teaching whatever their employer wants them to
>>>> say/teach. So if this had been teachers complaining about the compelled
>>>> statement, they'd probably lost.
>>>
>>> Here is where you show your ignorance of the fact that freedom of speech
>>> is taken more seriously by the public in general and the courts in particular
>>> throughout the USA than in almost every country in the world.
>
>> Only that this is the constitution that you imagine it to be, not the
>> one you have in the US. I cited, three times now, three on-point cases
>> SCOTUS decisions (Freedom of speech in education) that flatly refute
>> your reading.
>
> No they do not, because none of these cases *mandated* statements
> that were not part of the curriculum and were highly offensive to
> the teachers involved. You are completely ignoring this distinction.
Because it is a distinction without a difference. For Free Speech
purposes, there is hardly any difference between forced speech and
censored speech, they are two sides of the same coin (cf e.g. Wooley v.
Maynard (1977), and on the applicability of the government speech
doctrine for compelled speed Johanns v. Livestock Marketing Association
(2005) Either teachers (and with that every other state employee) have
Fee Speech rights in their official capacity or not. If they have them,
then that means they can't be compelled to say something they don't
want, nor prevented from saying something they do want to say.
There is a reason for this near symmetry, they typically go together -
that us, when someone is forced to say X, they then can't say Y. Under
your interpretation, teachers could e.g. refuse to use any of the state
approved textbooks from teaching, or any other book their school wants
them to use - as this would be compelled speech. The flip side would of
course be that that they can then teach whatever they want, 2=2=5 etc,,
so by compelling them to use approved textbooks, the state also censors
them from saying what they want. If your interpretation were true,
maintaining and enforcing any education standards would be impossible,
just for starters. Good thing then that the government speech doctrine
means that government employees have next to no free speech rights for
their official speech - they barter that away for their salaries.
>
>
> <snip of things that will be dealt with in separate posts>
>
>
>>>> including Scopes and
>>>> Webster,) all ruled against the teachers - regardless of whether they
>>>> claimed a right to teach evolution (Scopes) or ID (Webster)
>
> See, these were alleged rights to teach something that was not in
> the curriculum. How could a "legal eagle" like you overlook this distinction?
as above, a distinction without a difference, the same rules apply to
compelled speech as to censoring speech - if anything, the compelled
speech prohibition is more limited - from a case that you should
particularly like, Planned Parenthood of Southeastern Pennsylvania v.
Casey held the government can compel abortion providers to provide a
list of facts to the patient e.g. And of course several positions in the
US government/state employees require taking of an oath, from the
President down to Private Perk. Clearly "compelled speech", yet deemed
unproblematic on free speech grounds, as long as they can opt out of
religious affirmation - which again is not free speech, but the
establishment issue.
>
>>> [...]
>>> Anyway, the Dover case was a violation of the First Amendment
>>> in that it was *mandated* speech. And this is even more contrary to
>>> the spirit of the Constitution, being also curtailed by the Fifth Amendment.
>>>
>>> ======================= end of excerpt =================
>
> See, I had already made this point weeks ago, and yet, above,
> you are acting as though I had never made it.
On the contrary, I gave you ample citations to the relevant case law and
academic literature that flat out refuses your interpretation of the
Constitution. and no, the fifth amendment, which is about due process,
does not come into this at all. The right to silence on the fifth is
primarily a protection against adverse inferences from a person's
silence, something that does not apply to free speech at all. And it is
limited to trial proceedings anyway, so no idea why you think it has any
bearing on the case.