COOLJUSTICE: DID OBAMA Pick a Douchebag for the court in Sotomayor? Free Speech loses?

Before you miss the irony in this post (and attack or delete it) please give it a read

COOLJUSTICE is a blog on political and legal issues by a former columnist for a Connecticut legal publication which covered the case of a high school student whose election to be her class secretary was voided because in a private blog she wrote that the administrators of her school were "douchebags".

Sotomayor was on a panel of three judges which said that the female junior in high school calling the administrators "douchebags" (on her home computer on a blog off school grounds) was a substantial threat of disruption to the adminisitration of the school that their banning her t-shirts for free speech and her campaign and voiding election results where she won was justified.

I highly recommend COOLJUSTICE Blog

Read the article and related info at the link below:

Excerpt:

A Connecticut teen who used a vulgar epithet on a personal blog to describe her school's administrators never imagined someone like Sonia Sotomayor would stand in the way of her student-government career.

But the Supreme Court nominee did just that last year, when she sided with school brass, which had barred the ambitious student from holding office over the offending blog entry.

Now the case -- which touched off a wide-ranging debate on the boundaries of free speech -- is back in the spotlight as a clue to Sotomayor's approach to the Constitution.

"I'm absolutely concerned" about Sotomayor's nomination to the Supreme Court, the student, Avery Doninger, told The Post.

"We want someone who is going to protect our First Amendment rights."

Doninger had sued her school in Burlington for violating her rights after it blocked her from serving as class secretary.

A 17-year-old high school junior at the time in 2007, Doninger wrote on her home computer about a school event, "Jamfest is canceled due to douchebags in central office."

Lawyers for the school argued that even though Doninger blogged off campus, she still disrupted school because of the power of the Internet.

"Imagine if the class president got in his car after school, went 15 yards off campus, opened his laptop and then called out the school principal or superintendent using all kinds of four-letter words," said Thomas Gerarde, the lawyer for the school.

"That would clearly be disruptive" and cause for discipline from the school, he said.

Free-speech advocates disagree.

"Student speech at home is no different than adult speech at home," said Doninger's lawyer, Jon Schoenhorn. "This case holds that the school administration can reach into the home and punish students."
(Reprinted with permission)

Excerpt:

By ANDY THIBAULT
The Cool Justice Report
www.cooljustice.blogspot.com
May 3, 2009

EDITOR'S NOTE: This column is available for reprint courtesy of The Cool Justice Report, http://cooljustice.blogspot.com

In the news: Sonia Sotomayor, a federal appeals court judge from New York, has been mentioned as a top contender to fill a U.S. Supreme Court vacancy.

Every judge / politician has baggage. Some of Sotomayor's baggage is fundamental: She is on the record as an enemy of free speech.

We can and have done far worse, according to a New York civil rights lawyer who has seen Sotomayor in action. His moderate view is that in the future she would make precedent rather than codify the shoddy work of government-friendly judges like Connecticut's Travesty Kravitz.

-- Travesty Kravitz

No matter how politically correct a choice Sotomayor might be as an Hispanic woman, her anti-free speech opinion in the Famous Douche Bag Case -- Avery Doninger V. Paula Schwartz / Karissa Niehoff makes her at least an intellectual cousin of that rat bastard judge who wrote the Go Torture Rules for Bush / Cheney / Rumsfeld.


-- VERBOTEN T-SHIRTS



This is a good time to look at the lifetime tenure we give this privileged class of unaccountable government employees. Even with 10-year appointments there would be only a little bit of accountability, but that's better than what we have now.







http://cooljustice.blogspot.com/2009/05/stop-enemies-of-free-speech-from-being.html

edit to fix link

Can somebody translate this into English please?

this sums it up nicely

there are photos at the site (I don't know how to crosspost photos like this here

I fixed it though - sorry

or even linux, right click the picture, select copy image location, then paste that address in to the post.

No idea on a mac

ut it looks etter now that it has een edited.

I doubt it. Most likely detention/suspension. At least it was that way back in the early 90's when I went to high school.

My older brother got suspended for wearing a "Metal up Your Ass" t-shirt (a Metallica band t shirt) in 10th grade. LOL, funny mems.

and asking for political action to affect school policies/actions

SOTOMAYOR said this speech was not protected by the first amendment

and upheld her being denied her elected seat as class secretary

that sucks

You never gave a perma-link. I have a problem with that. I tried to read, but really -- give me a reason why -- On second thought, don't bother. I tire of this shite.


That said, I find it kinda offensive when you post something that says: "Making The World Safe For Douche Bags"

I expect better from DU posters and I find my tolerance of this crap less and less.

problem is that the blog with its images did not translate when I cut and pasted it over here

sorry

with the proper link (I screwed it up the first time) you can go to the link now and get it in context:

the tshirts banned, and more articles on the details

sorry for the mess

I am very new here and this is one of my first ever attempts to post an OP

Thibault (CoolJustice Blogger) actualy teaches blogging courses to college students

his site is worth a look despite my shitty cut and paste

sorry, the original post did not translate well from the blog

so you'd have to go the blog to read the info

We are about to put in a SCOTUS member that is willing to limit free speech?

Bad news. Bummer. Hopefully she will see what an error she made and never make a big mistake like that again?

but there are in fact many very conservative Hispanics that I've known often due to their catholic heritage and upbringing.

She might be much more conservative than we would hope her to be on issues like this

I do not know if she had a Catholic upbringing.

But even growing up in "the projects" can make some folks much less "permissive" - especially if they have struggled hard by playing by all the rules.

So maybe strict upbringing might make her less tolerant of annoying political speech

Want a bit of advice?

No? Too bad, here it is. Use spell checker, best to use new Firefox browser w/built in spell checker.

Don't get too excited, nice and easy does it, and don't take anything too personal.

Punctuation is a nice feature.

************

She damn well better become tolerant of annoying political speech, and fast.

a little embarrassed to screw up my first serious OP

I'm a terrible typist

of fascism is to use religion to make the religious obey authority

just an observation

the Nazis did that so well (using Christians to demonize Jews etc)

Catholicism plays a huge role in Puerto Rican culture

even of she is not a Catholic

but that might explain this vote

and lend perspective to future votes

I undestand her record is very quiet on abortion

It's the Second Circuit, for crying out loud. Abortion was legal in NY before Roe v. Wade.

They don't GET abortion cases in that circuit, because the laws are less restrictive there than any other circuit you could name.

just sayin'.

She MIGHT be less liberal or progressive than many might think on this issue.

We just do not know.

The question was whether the school administration could decide not to allow her to participate in an extra-curricular activity, which is entirely discretionary, as a consequence of the speech in question.

Nobody said she couldn't say what she said, or that she didn't have a right to say what she said.

http://www.citmedialaw.org/sites/citmedialaw.org/files/2008-05-29-Doninger%20Second%20Circuit%20Opinion.pdf

ITs Discretionary with the school admins to let a student who qualifies to run for class office? Or to take office if elected fairly?

If something is discretionary there is the legal argument that an ABUSE of this discretion is not cool.
The violation of her first amendment rights makes the action an abuse of the school admins discretion IMHO

Now the "discretion" stuff is legalese being used to cover up the abuse of her constitutional rights by the school and now by the courts and SOTOMAYOR in particular.

I will read the link, but any way you cut it she was punished for using offensive but protected speech in political actvism and THAT should be condemned by all of us here.

Yes, it is. It is an extracurricular activity.

Try badmouthing the football coach and see if you stay on the team.

Sotomayor made it clear that she didn't agree with the school administration. She thought they made a bad and wrong decision. But when you get into "abuse of discretion" as opposed to "denial of rights", you are talking apples and oranges.

Second, this is a decision on a denial of a preliminary injunction. It's not even an appellate decision on a final district court ruling. I understand that sounds like a bunch of mumbo-jumbo to you, but the type of decisionmaking that goes into an intermediate appellate decision on an appeal of a preliminary ruling is not the same type of analysis that goes into a final decision on the merits of a full record.

Read the decision, and explain where is the error in the way that controlling precedent was applied.

Sitting on an intermediate appellate court is not an exercise in "this is how I want the world to work" and, again, Sotomayor is absolutely clear where her personal sympathies in this case are. She makes is absolutely clear she thinks the school made the wrong decision. But that's not the question presented on this appeal.

causes immediate and irreparable harm

and besides

a DENIAL of RIGHTS IS an abuse of discretion!

The reasoning is clear: obey school authorities and watch what you say or else!

The Constitution does NOT protect students.

This wasn't about forcing her to take the blog post down.


The reasoning is clear: obey school authorities and watch what you say or else!

The Constitution does NOT protect students.


That's crap. The decision itself cites a number of student free speech cases. The distinction here is that, in the context of extracurricular activities - i.e. things beyond what the school has a duty to provide, there is greater discretion.

How do I know this? Simple. I ran into a similar situation in Jr. High and, yes, based on political speech. Guess what career path it inspired me to pursue...

it seems that what they cited all supported censorship

if you are okay with this decision then I guess we can just agree to disagree

Personally I think it is nitpicking used by the court to justify the unjustifiable.

I get your point
I just don't agree with it

I still believe the constitution protects her actions and speech and that the school violated her rights

she should have been seated as class secretary

By the way, whether you agree or disagree with any Democrat in office, out of office, thinking of office you never refer to Democratic women as douchebags... I have my eye on you and I am not liking what I see

rules as a judge that this young WOMAN not be allowed to take the school office she was elected to in a fair election.

Besides I did NOT say Sotomayor WAS a douchebag, I used to the term to ASK if people thought she was because of her decision regarding the political use of the term "douchebag" in student activism

BUT...

I did it with a "provocative" and eye-catching OP Subject line that I thought would get people to read the post and

while I initially upon reading the blog thought that the term (which I find rather gross generally and would consider it offensive name calling and probably sexist despite it being used to insult anyone male or female) was just dumb --- BUT the use of it BY a female in a political activity context for someone who is being a jerk (is that a derogatory GUY term?) should be prtoected speech.

initially, like the young woman activist in the case, i knew that at first blush people here might get "pissed off" (which is what the girl in this case said she was trying to do while agitating for a policy at the school shw qas trying to change, i.e. get so many students to complain to the "douchebag administrators" at her school.

But too I intended to arouse some discussion of the issue by PLACING the offensive term punished by SOTOMAYOR in the subject line

No offense towards any woman, democrat or otherwise, was intended and if I offended you I apologize.

Frankly under the circumstances I would probably use another anatomical term in this case which applies equally to men and women and is well known to be nastier. At least in this case I believe that Sotomayor was wrong.

Seriously, you diminish the impact of the OP with your title.

Hardly flamebait really.

But it actually was designed to get people to discuss the USE of the term DOUCHEBAG and whether it should be a term one's speech is PUNISHED for.

The OP Title was meant to make one THINK

and notice

to consider

and reflect

and debate the merits of the decision AND the use of the term "douchebag".

I was NOT trying to bait anyone (at least not anyone who actually considered the post and the article I linked)

I really do NOT like that word BTW and when I read the blog I initially was ...like... who are these people - 9 year olds?

It IS offensive when someone calls you that (unless the person calling you that is an idiot whose opinion you could care less about)

But using the term in the OP was INTENDED to get a discussion of whether Sotomayor was WRONG in this case and whether that should raise concerns about her willingness to protect the first and other amendments and Constitutional rights

This thread would have got maybe 5 responses before being buried.

that is the impression I have gotten

to even get read one must have an eyecatching OP subject line

That is why I opened with my comment about irony

calling someone a douchebag IS provocative

(even though I never called anyone that Sotomayor supported punishing a young woman FOR calling someone that)

Might teach her a lesson that she probably can be more effective in getting her point across without resorting to degrading language.

Was she punished?

No. She was denied the opportunity to participate in an extra-curricular activity.

She wasn't banned from the school, disciplined, or even told to shut up.

Would a coach have a right to kick a kid off of a sports team for badmouthing the coach on a blog, yes or no?

It's not about effective language. This was a private blog post, sheesh.

lol I love this gem: ""Imagine if the class president got in his car after school, went 15 yards off campus, opened his laptop and then called out the school principal or superintendent using all kinds of four-letter words," said Thomas Gerarde, the lawyer for the school.

"That would clearly be disruptive" and cause for discipline from the school, he said. "


HAHAHAHAH. Disruptive my ass. Cause for discipline my ass. Someone needs to grow up here and it ain't the 17 year old.

say will be noted by Big Brother, kept in your permanent file, and be used to build a case against you for politically necessary reasons as Big Brother sees fit.

Remember that Big Brother knows and sees everything. Do not deny anything you are accused of because you may have forgotten that you have spoken improperly and then be held responsible for lying to authorities.

Remember authorities are authorities by virtue of never having misspoke. Humble yourself before them and their standards of excellence which most mortals can never reach.

If people can be properly trained to avoid thinking improper thoughts the problem of improper speech will be eliminated.

And..

If people can be properly trained to avoid speaking improper thoughts the problem of improper thinking will be eliminated.

They decide whether to overturn rulings.

Is there a link to this decision handy?

Ah.... here we go:

http://www.citmedialaw.org/sites/citmedialaw.org/files/2008-05-29-Doninger%20Second%20Circuit%20Opinion.pdf

then i do not know what is.

Even the precedent appears weak.

This has been decided by the supreme court and reaffirmed. Most reasonable understand that to be true.

The Appeals Courts are very important -- and do "decide" cases by deciding to let them stand or to overturn them. In fact, they are more important than the Supreme Court because the greatest number of cases are decided at the appellate level and never make it to the Supreme Court.

for bringing the appropriate case law to bear in the hearing. The judge then weighs based on that case law. Appeals will only review if the case law intended was used properly. If there was some precedent or applicable law left out of the original decision, its not up to appeals to dig that out.

the attorney in this case is a seasoned Lawyers guild lawyer

Sotomayor screwed up

not the lawyer

I raed the decision

it is BS and even their precedents don't justify this decision

frankly I am shocked that Obama overlooked this in the vetting process

You keep saying that, but you don't support it with a reasoned statement based on those precedents.

Which case(s) were wrongly applied, and how.

they misapplied even their own precedent.

From my perspective they misapplied the law to the facts.

IF, they said, this was a constitutional violation then they could act. Then they concluded it was NOT a violation.

of course it is more complicated than that

but the precedents in the final paragraph simply seems to contradict their conclusion.

I believe this was an egregious violation of her right to free and political speech and activism.

They cherry picked language which made it seem acceptable.

but its not.

You can't say things like that and expect to serve in school government, it's not proper.

Imagine if a student of mine started a blog saying dsc is a fag. Should he or she be able to get away with that.

Saying it and expecting to participate in an extracurricular activity, in which student participation is not a right, is another thing.

Nobody here tried to stifle this student's speech - that's the main thing.

the www entered the schools. I shutter the thought of what can happen now. :nuke:

but in any case I still think it should be protected speech.

Context is everything

suppose the person who used the term "Fag" was gay and used it affectionately.

In this case the girl was using the name calling as PART of political/social action. That makes it all the more protected IMHO

It is totally one sided. I can easily see a student getting POed over a grade and deciding to call a teacher a vile name on a blog. That is unacceptable.

It's fine for the student to call a teacher a vile name on a blog, and it would be wrong for the teacher to grade the student down as a result.

THERE we are talking about what the school is required to do - objectively educate and grade the students.

This case deals with a discretionary extracurricular activity. But, heck yes, as the illustrator of an offensive comic strip involving one of my teachers in Jr. High which disqualified me from honor society, while still getting A's from that teacher and every other one - I've seen this up close and personal.

:rofl:

Especially since she used the "impart a proper respect for authority" as a reason for her ruling.

It is as if schools exist only to teach people to be obedient servants. Bad decision, and a bad reason for said decision.

And if school officials cannot handle being called "douchebags", that says more about the school officials than it does the student.

If she was properly elected, the school should not stand in her way of being in student government (because what about the wishes of the rest of the students?)....extra-curricular activity or not. It is not as if "douchebag" is a particularly heinous name to call someone in the teenage vernacular...it really only means "wimp". It's not even personally directed at anyone by name. Looks like the school administration lived up to the very name they objected to by making such a big stink about a really small offense.

I do not want another authoritarian justice on the Supreme Court....her ruling and the reason given for it makes me very nervous that Sotomayor is an authoritarian. "Proper respect for authority"....I got your respect right here:



When a school administration cancels a concert because it might be too rowdy, or too controversial, or too whatever, they deserve to be called douchebags. And if it is done on a person's private blog, that person should not be punished for it. She was.

Can you please link to somewhere that is not originated from a DUer who acts hostile towards others? Thanks.

Or better yet, make a point in your own words.

They only rule on whether there are grounds to overturn the lower court's decision.

That's it in a nutshell.

She should have left her opinion about school's imparting a "proper respect for authority" out of the reasons for her decision. I do not find that part of her decision to be necessary to rule on procedural grounds, and to be honest, it's a bit creepy.

Anybody who criticizes Sotomayor or even thinks to look at her record should be banned from this board.

Anyone who shows the least amount of doubt about Sotomayor's qualifications, even to read trashy posts such as this should be censored for being the closet Republicans we all know they are.


All possibly divisive discussion must stop right now because the Supreme Court says the little folks don't have the right to disruptive opinions and speech anymore. This Supreme Court selection is much more important that any high school election and so we should all shut up and take the lead from the authorities.

This outspoken girl may grow up and have bad things to say at home about a boss she considers heavy handed. All adults know that their bosses are always right and any criticism of them is grounds for firing.

Now go away. There is nothing to see here.

...and it's not. You can say what you want, but like anything, there may be consequences. I think the school was probably within their right to do this. I don't personally agree with the decision, but my sense is that they were probably within their rights. I was once kicked off the soccer team for 3 weeks during my sophmore year for kicking the ball directly at the opposing coach (hitting him in squarely in the chest) and calling him a "prick". Kinda sorta the same thing, no?

... and that is totally ridiculous. Are you sure you really want to maintain an argument like that?

...obviously they can't. What I'm saying is that the school, in this particular case, was probably within their right to do what they did. The government can absolutely punish you. Don't think so? Try going into a crowded theater and yelling "Fire!" and see what happens.

I don't think what the school did was right although they apparently proved the student correct by behaving like douche bags. Unless of course, you think the purpose of schools is to ready kids to be mealy-mouthed, compliant, non-questioning, lemmings-like workers in which case I suppose you can say they did the right thing. Clearly the school system hasn't drummed the individuality out of her yet.

But the rightness or wrongness of what they did was not the legal issue on this appeal.

she never said that plus she RULED in her DECISION that the school essentially was right ( because she ruled that the student had not proved that the school was wrong and had violated her right to free political speech).

Frankly after reading the decision I am more concerned than ever that totalitarianism is alive and well in the federal courts and that SOTOMAYOR did nothing to change that in this case.

I knew you didn't read the decision.....


Avery, by all reports, is a respected and accomplished student at LMHS. We are sympathetic to her disappointment at being disqualified from running for Senior Class Secretary and acknowledge her belief that in this case, “the punishment did not fit the crime.” Doninger, 514 F. Supp. 2d at 202 (internal quotation marks omitted). We are not called upon, however, to decide whether the school officials in this case exercised their discretion wisely.


The question was whether in this situation, the school had the legal ability to disallow her participation in a discretionary extracurricular activity under these circumstances.

The question is not whether the school was "right" or even did the right thing. The commentary above pretty much says that the administrators were a-holes. That might not come across as clearly unless you read a lot more intermediate appellate decisions. That passage above is what passes for a "smackdown".

I AM an appellate attorney and have read MANY appellate decisions

It is shuck and jive and bob and weave.

The QUESTION is whether there was an abuse of discretion, utlimately, and their coment bobs and weaves around this.

The legal opinion essentially concludes that the school had the RIGHT to punish her for exercising her constitutional rights.

I see your point that they were saying LEGALLY the school was right but they DON"T HAVE TO SAY whether it was "wise".

My point is that the school and hence the courts have abused their discretion BECAUSE it chills first amendment rights which should trump the insidious authoritarianism exercised by the school here.

They didn't say they were not right - they just said they didn't even have to decide or opine whether it was wise.

They RULED essentially that the school was right (legally).

Big difference.

Yes.. and... why throw that out there?

Deciding that denial of a privilege is not the same as imposition of a punishment, and that in a discretionary context the school was within its authority, is not the same thing as agreeing with how the school exercised that discretion, and you know that. You also know that "abuse of a discretion" is a high threshold to hit, and that this is a decision on a denial of a preliminary injunction, for which the threshold is also higher on the moving party.

You are an appellate lawyer, so you know that dealing with an appeal from denial of a PI based on an abuse of discretion standard is a pretty small target to hit - regardless of the underlying substantive context. There are two layers of discretion involved - (a) the district court's higher discretion in addressing a PI motion in the first place and (b) the school's underlying discretion in the substantive issue.

This was not even an appeal from a final decision.

legally right

the comment I made in response to their comment was that they DODGED the REAL constitutional issue with their comment about not having to decide whether it was "wise".

Bottom line is that their decision has permanently harmed the student's record, and that they did not believe her rights were violated.

I think it was an ignorant decision and bad one (ignorant of the constitutional principles involved).

Actually, frankly, it is not so much about discretionary acts but unconstitutional acts and the discretion argument the court alludes to is a red herring

They decided she had not discharged her burden for obtaining a preliminary injunction.

in Sotomayor's opinion

that was their bottom line

no violation, no obtaining an order that she be seated --- in a nutshell

I think there was a violation, she was injured, it was irreparable harm, and she was likely to prevail BECAUSE there was a violation

but no violation, again, no meeting her burden of proof

it was BS reasoning and a justification for totalitarian type actions

I don't have to explain to you that on a PI motion the clarity of that proposition must be much greater than on an appeal of a final judgment.

and why Sotomayor didn't think so speaks volumes

and they are not pleasant volumes

The school is required to provide an education. Participation in extracurricular activities is not a matter of right, it is a matter of discretion. At least read the decision and provide a legal basis for disagreeing with it.

denial of a privilege IS a punishment - especially if she met all the other criteria for student government and she was punished for political speech.

The last paragraph in the conclusion is laughable.

Basically they said they would not interfere to protect her rights because there was no abridgement of the first amendment.

That is patently absurd.

If they respected the first amendment AND th precedents they cite, they would have ruled otherwise.

Her whole life will be irreparably harmed (maybe the harm is not too severe, but maybe it is) by this denial of a basic human right to speak her mind and be politicallly active for change she wants to bring about.

Their reasoning was bullshit.

Ah, yes, well I almost forgot the case citation for that precedent.

:eyes:

Would you care to pick up on the example I proposed of badmouthing the football coach and expecting to stay on the team?

A "punishment" would be detention, suspension, or some other impairment of her normal school activities. Extracurricular activities are not within what the school is required to provide, and the precedent on that question is pretty clear - they are discretionary.

better terms of art, I admit.

I think that if the student on a team is "badmouthing" a coach it is different than a student engaged in political action expressing outrage and advocating activism to change policy.

Especially when the posting is on the internet and not in school itself (yelling douchebag at the principal in the hallway would be very different imho)

If you do not think she was being punished with respect to a normal school activity (student gpvernment not a normal school activity?) and that this is justified because it is "extracurricular" I would argue that student government IS a part of her education and elections should be more protected than sports.

But again even if it is discretionary as an activity (not required by statute) then an abuse of this discretion for punishing her protected speech would, in my judgment, still be a constitutional violation.

It is a VERY bad precedent Sotomayor has set and chills the free speech f ALL students by making it easier for school officials to f--- up your school record if you exercise any speech which is vaguely "disruptive"

Well, that was what the case turned on.

In Jr. High, I had a teacher who was a complete dickhead and about whom I produced and distributed an offensive comic strip. I had top grades, but since he was the honor society advisor, he decided I did not have the appropriate "character" for the honor society. Sumbitch had to keep giving me the A's I earned in his class, and I know that bothered him.

Both of us were keenly aware of the distinction between earning grades and participating in discretionary activities. My revenge was outperforming every other student in his class.

I was given the opportunity to apologize and be admitted. I expressly declined. The school counselor later admitted to me that he was glad I stuck to principle even though he persuaded the teacher to give me the chance to do it.

Sometimes you make those kinds of choices between exercising your rights to the full extent and compromising them for some other privilege, and that's not a bad lesson either.

A couple of years later, he was fired from that job, took a job with a fundie right wing school, and got fired from that one in three years. He was, after all, a major jerk.

is what I think you are doing

but it is late and i am too tired to detail a response coherently but... a few things

Were you caught on school grounds?

how offensive was the conduct?

do you think the bastard was FAIR and was it right?

As for what the case turned on the decision was detailed but also seemed to me to turn on whether her speech was protected speech.

They concluded that it was not.

I think they were dead wrong.

I think your teacher was dead wrong but I would have to know more circumstances and facts to be certain

I just feel troubled that so many folks here in defending the decision are willing to throw free speech under the bus

No I don't. I was caught during lunch in the cafeteria. Passing around a comic strip with friends during lunch was, IMHO, on my own time. Students can pray during lunch if they choose, under the relevant standards.

Having the power to do something, and exercising that power in a manner which is "fair" or "right" are two entirely different things, and that's what this decision says.

This decision expressly states that it's not about whether the school was "fair" or "right" - it's about whether the school exceeded its discretionary authority relative to participation in extracurricular activities.

And, I've done free speech cases pro bono, and I am offended by your personal characterization that I have "throw<n> free speech under the bus". If you can't have a discussion without personally attacking other folks, then, have a nice day.

as has Obama by nominating her to some degree

I can't go back and edit the subject line (I tried to to make this point clear)

I do not mean that you are throwing free speech under the bus - I was tired and not psting what I meant clearly.

But I do think you are making legal distinctions to defend Sotomayor's decision which I do not think is defensible on these facts.

That is just my opinion. If you want to defend it that's cool with me. I just think you are wrong on the merits of the argument. I UNDERSTAND the reasoning - I just think it is faulty.

Of course if I were a judge I would have the opportunity to decide differently.

And I understand the issue you have raised: the bar is lower for discretionary activities.

But the bottom line is they ruled essentially that the action of the school was not a constitutional violation of her free speech rights on these facts.

I still think they were justifying the indefensibe.

But I do wish to withdraw my statement that you are throwing free speech under the bus.

I meant that that was the effect of this decision.

As a free speech lawyer I would think you could argue my side BECAUSE I think this decison bodes ill for future Sotomayor decisions which will further erode our free speech rights potentially

...or do you think this was her only First Amendment case?

be happy if it's good one

Not every case has its own Wikipedia article...

http://en.wikipedia.org/wiki/Pappas_v._Giuliani

You can learn more from a solo dissent, instead of joining a three judge opinion.

I haven't read any of her decisions except ths one which I was alerted to by the COOLJUSTICE blogsite, which I encourage folks to read.

Andy Thibeault, who runs that site, was an editor of mine (as a journalist) when I first finished law school and was studying for the bar. I consider him a mentor and a friend.

He asked me if I had heard of the famous "Douchebag" case and referred me to his blog entries on the subject.

I wanted folks to see that blog and weigh in on Sotomayor's decision to join in that opinion which I feel is clearly a loss for human and civil rights advocates. I also know the lawyer in the case who is a very progressive attorney active in the Lawyer's Guild ( a progressive left-leaning activist lawyer's group).

But the bottom line is that despite this other case, which is a good opinion on her part, I still feel she was in error on this one.

It is almost as if she was just going along to get along.

Frankly, her decision in the New haven firefighter's case on affirmative action is much more controversial (and might be her at DU too if debated in depth) and is also very encouraging. I think it is imnpotant to point out in that case too she sided with affirmative action for African Americans in a case where Latino (or Hispanic) folks were claiming the decision in New Haven harmed them along with "whites".

We could do a lot worse than Sotomayor.

But I do think Obama could have done a lot better.

It was a very political nomination (though not by any means a terrible one under all the circumstances)

Yeah, well, that's a great way to figure out what's under her bus, eh?

On the New Haven case, she didn't decide a god damned thing. The court upheld the district court opinion. The district court decided that case.

That is a decision.

It is CALLED a ruling or decision.

She had to make a decision.

Wasn't there an opinion in that case? That pretty much makes it an opinion.

If she merely voted to affirm it that is also a decision.

I don't get the distinction.

Kids are clamoring for extracurricular activities in order to impress colleges in order to be able to obtain gainful employment in the future. But schools treat these extracurricular activities as privileges which can be taken away on a whim. Would one not be able to say that by barring a student from being involved in extracurricular activities the school administration is literally saying, get in line or we'll do what we can to ruin you. How is that not punishment?

it is a weak argument as far as I am concerned. This decision will cause her permanent harm in life and is a violation of her rights IMHO as well as a TERRIBLE precedent.

Being a plaintiff in a civil rights case that made it to the second circuit is the best thing that ever happened to this kid in terms of education and impressive non-academic qualifications.

I'll bet you a hundred bucks she not only goes to law school, but gets accepted at a tough one.

Kid was a plaintiff in a civil rights case that made it to the circuit court of appeals?

That's a pretty impressive extracurricular activity if you ask me.

that this may turn out well for her does not really mitigate what they tried to do.

Doctors kill people and the family sues but no one would say well hey at least you got all that money.

No, perhaps not on a very narrow set of social issues that rarely come before the court, but on issues of police power, corporate power and government power she has never shown herself to be on the side of the citizen against the government or the corporation. Souter was far more liberal on issues that I care about.

and I have been further saddened by this Obama move

on her home pc, it was published *everywhere*, no? So not a lot of difference than if she, say, posted a great big billboard in her front yard. Or published flyers on her home pc and then left a pile of them at the supermarket for all to take and read.