The original article also cites an AMA study suggesting the average is an 8th grade level, which is slightly better.
BTW, I'm in a better mood than would be suggested by my initial response to the argument that the apparent failure of the public education system is a good argument for more government involvement in healthcare.
Was it really necessary to continue using "gifties" and "tards" throughout the opinion? I mean, really.
i don't read the decision as broadly as you do. why else include several paragraphs rejecting several of the school board's arguments at the end of the decision?
and the decision notes that the students correctly surmised the school would not touch them if they wore the shirts the day the school had its citywide annual tests.
the students made their protest, and quite effectively i think, by doing that.
i'm not saying i agree with the result. i'm not sure i care one way or the other. just saying i don't read it as being "snarky" towards the students.
Timing the protest to coincide with the citywide annual tests by which schools are measured is a gifted stroke of genius; I remember how my school fought really really hard to make us show up for these pointless tests when we'd rather take the day off and work on our term paper.
Was it really necessary to continue using "gifties" and "tards" throughout the opinion? I mean, really.
I find it ironic that Amber calls Posner the elitist in this dispute.
I pause over the assertion that it wasn't the protest but just the particular means of protest that was forbidden - and in that agree partly with Amber's overall point.
But I can't bet past the first 9.5 pages of the opinion in which we are introduced to a truly deplorable class of plaintiffs and a mother who should be ashamed for filing a lawsuit on behalf of, rather than grounding her child for, his and his classmates actions.
I attended magnet schools from 4th grade on up to high school (basically). Both my elementary and jr. high school magnets were situated on campuses of "regular" schools. And that was as much differentiating as we ever did. At no point do I recall my friends and I high-fiving each other over our "gifted" status, nor did we ever tease regular kids in the manner described in the case. We called them regular school kids - so if that carried any slight - intentional or not - I don't know. We didn't know them, never had classes with them, but when it came to things like class t-shirts (in jr. high), or names were written in 2pt font right along with everyone else's on a sweatshirt.
Why on earth a mother - or a should-be-fairness-focused lawyer - would think that her child had a right to try please a select group of classmates with a grossly offensive and cruel t-shirt is beyond me.
I think it's brilliant to call them "gifties" throughout the opinion. I'd hope most readers would pick up on the rather obvious disdain for this group of privileged brats and their equally bratty parents.
I agree with CD.
But the First Amendment is supposed to sympathetic and unsympathetic speakers alike, and it is the unsympathetic speakers who actually need the protection of the First Amendment.
It's true, as Judge Posner notes, that the t-shirts make no contribution to a "marketplace of ideas," but the Supreme Court's cases don't consistently use that as the test.
For myself, I'm glad that the plaintiffs lost and I'd hate to see the Supreme Court grant cert and take their side.
The Supreme Court is hearing a school speech next month (banner reading "Bong Hits 4 Jesus"), and Judge Posner was probably talking to the Justices as much as the parties before him.
"It's true, as Judge Posner notes, that the t-shirts make no contribution to a "marketplace of ideas," but the Supreme Court's cases don't consistently use that as the test."
Right - because the SC gets to make up whatever multi-prong-stepped-scrutiny-analysis it feels like will get it to the answer it wants to give. Just makin' it up as they go along because the profession won't tolerate the "because we said so" answer that would probably be more honest in most cases - esp. 1st Amendment ones.
suffice it to say that Posner's opinion is dangerously elitist in its refusal to protect speech that is childish or uneloquent.
And it's been a while since I read the particular case, but isn't it somewhat in tension with his stance on exotic dancing?
sarah,
since the supreme court has held that exotic dancing is protected, neither posner's opinion on the point, nor anyone else's, is really relevant.
but the most recent 7th circuit case issued just a week or two ago, i believe written by posner, says cities can basically outlaw it outright if they want to (as long as the geogrphic area of the city is small).
I think the points that these kids are horrible little brats (but pretty damn smart) is pretty clearly made without the repetitve use of "tard."
Upon further review, the word "tard" is used only 3 times, but the gist of the opinion seems not to be about protection of speech, but more with a concern of protecting the "tards" from themselves, i.e. we can't let the "gifties" speak up like this because the "tards" will get all in a rage and do something, well, retarded.
slynnro,
Do you also think the message of Chaplinsky is that we can't let Jehovah's Witnesses speak up like that because the non-Witnesses will get all in a rage and do something, well, better not witnessed? Saying that a group of people will get incensed by insults is not an inherent deprecation of those people.
I think Chaplinsky is an innately demeaning decision.
In the context of the way the opinion was written, I would say that (at least for this ONE opinion) saying that " group of people will get incensed by insults" is demeaning. The way that message is conveyed in this opinion comes off as an insult. The message itself, however, is not per se demeaning.
That is why I find the usage of "tards" and "gifties" offensive. I don't really get that it was used to exhibit the tensions between the students (as PG said). To me, it seems it was used to show that one party is clever and one is dumb and needs protection.
Posner's previous opinion in whatever *Barnes* was called in the circuit (I can never remember how the caption changed) is relevant in the sense that one would hope that the man would have some intellectual consistency (which is exactly how I framed my point in the first place). I'd have to go back and double-check before I started claiming there was an inconsistency, but I do recall him taking a surprisingly modern and broad view of what constituted expression in that case.
sarah,
you are right; he took a very broad and modern view of nude dancing. miller v. south bend, 904 F.2d 1081 (7th Cir. 1990), was the decision reversed by the sup. ct. in barnes.
i just don't see it as all that inconsistent.
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