The Lexwerks

The Edgy Off Seventeen

I’m just some guy; I am not a mandatory reporter. Some of my students that I volunteer with appreciate this: they know they can speak rather freely around me and trust me to bet on their ability to live their life. And this is because I believe that friends should bet on each other instead of against each other.

I recently had a young woman who was a bit troubled: she was multi-ethnic in a WASP-oriented school, she was young-faced and adorable but trying to be taken seriously as an adult, and her dad was still disappointed that she wasn’t a boy. She was insanely over-performing in sports, speech, music, volunteering, academically, et cetera, but constantly under pressure to do more and do it all perfectly, performing both as fake WASP and with a mimicry of masculinity in pursuit of her father’s acceptance. She had a chronic feeling of awkwardness. At the point where she was both completely competent yet utterly lacking in confidence we connected and did some amazing work together.

She thankfully ruined The Edge of Seventeen for me.

The Edge of Seventeen, somehow running at 95% favorability on Rotten Tomatoes, is another entry in the sub-genre of “Woody Harrelson (Zombieland, The Hunger Games) mentors younger women” films. The film stars the next generation of Ellen Page, now named Hailee Steinfeld, as Nadine, a girl with no qualities except her looks, which she sabotages by cultivating an atrocious wardrobe to justify her lack of social standing in a categorically and unrealistically beautiful peerage. She grew up in the shadow of her slightly older but more mature brother and she resents him for it, so she spends the movie freaking out and being horrible to everybody after he hooks up with her best friend. The movie ends with her realizing that she’s a horrible person, and this makes everything okay so she can hook up with a the richest guy in her class, obviously.

There are several troubling factors in the composition of the film. Relevant to my attention to Harrelson is that his character is not reporting Nadine’s behavior when Nadine pointedly explains how she intends to commit suicide or shares her sexually explicit propositioning of her crush with him. He instead inappropriately mocks her for the benefit of the unsympathetic audience. The point may be that these behaviors aren’t abnormal and the kids will generally be alright, but it’s not what springs to mind. And I don’t think it’s normal; my students don’t regale me with their certainly self-destructive behaviors beyond the conventional dangers of merely being female on mass transit or the rare infliction of self-harm by shaving with shaking hands.

I’m thankful that my I can bet on my friends.

But Nadine has another problem: she’s empty. When I said she has no qualities, I meant that she does nothing–she is in no sports or other extracurriculars, she does not appear to volunteer her time or be otherwise employed, she is not even a particularly good student as she fails to turn in the one homework assignment in the movie in one scene and falls asleep in class in another. While I’m certain that many people in the target demographic sympathized with her awkwardness, I’ve never seen a teenager do as little with their life as Nadine does with hers. Despite a dearth of friends, she doesn’t appear to read anything, either, and this strikes me as bizarre. See, my awkward student read to give voice to her awkwardness; her reading of a innuendo-laden poem featuring her sharply declaring “I get off on Dicken[,]son” (there were no mandatory reporters listening) was just one crystallizing element she used to solidify her path, to find her affinities, to know that there would be a path, and that she wasn’t alone.

Is it fair to compare Nadine to my students? Probably not. My students are really quite good; that’s why I claim them as mine. But Nadine doesn’t even hold up against other pop-culture girls; antisocial outcasts Daria (exceptional student, plus reading and writing) and Jane (art and running) both did more than Nadine. Awkward girl Rachel starts a heavy metal band. And in a direct comparison Olive would run the table with Nadine. And Wichita? Nadine would get bitten and Wichita would blow Nadine’s head off. Even compared with her fictional peer group, Nadine comes up lacking; her happy ending with the rich boyfriend will have her merely playing muse to and cheering on his minor ambitions, not unlike how it would’ve been if Knives were actually the focal character in the not-recommended Scott Pilgrim vs. the World (but if you’ve seen it anyway, you know what I’m talking about).

Nadine asked Erwin what he wanted to do with his life, a question that she couldn’t even begin to answer. Even Buffy was able to come up with “All I want to do is graduate from high school, go to Europe, marry Christian Slater, and die,” and she gave that without the sage guidance of Woody Harrelson.

Finally, and getting back into the territory of nobody reporting anything, it’s a bit odd that Krista is spending the night with Blake and it doesn’t occur to anybody that she’s almost certainly telling her parents that she’s “staying the night at Nadine’s house,” which may be technically true, but also completely omits the relevant detail of who she’s fucking and thus counts as a lie, a lie that her closest ex-friend and a nearby parental-adult should both be fully aware of and surfacing to Krista’s would-be-concerned-if-they-knew parents. But nobody does. Perhaps Krista hasn’t actually had any parents since age 8. I mean, Erwin’s parents wandered off for several months in the middle of the school year, so why not? There’s a certain pernicious undertone here: that regardless of whether kids have their shit together (Erwin, Darian) or not (Nadine), adults can’t do anything but interfere until it’s past time for an intervention.

For the difficulties that were faced in Daria, Easy A, and even Boring Girls, the adults were not so disparaged.

On the one hand, this totally lets me off the hook so maybe I should be glad of it. On the other, it also totally devalues the position I’ve taken and the role that I play. So I take offense at it, as all of the big brothers and big sisters and other mentors that step up work on guiding kids into adulthood and being valuable participants in society may reasonably do.

The difficulty perhaps lies with the screenwriter: Dave White wrote of Kelly Fremon Craig’s other screenwriting credit, Postgrad, “It acts like the audience knows nothing about how humans behave or find jobs or keep them or have romantic relationships or exist in families,” and that seems to hold pretty true here as well. Maybe Kelly is projecting her insecurities onto Nadine; I can somewhat sympathize with that. It’s an easy gimmick to use and by the time you’re done editing and proofing you really will hate your main character to wish them that kind of wretchedness.

But at the end of the day, I’d rather my students passed by the cultural artifacts which lionize idleness and give awards not just to participants but to the mere spectators. I insist on more from them; they should be able to insist on more from their cultural representations.


…All Others Pay Cash

“Poverty is a relatively mild disease for even a very flimsy American soul, but uselessness will kill strong and weak souls alike, and kill every time.” –Kurt Vonnegut, God Bless You, Mr. Rosewater

Preamble: A capuchin monkey living in a zoo somewhere–I don’t actually know where–has nothing to do with what I’m about to write. On face, it is entirely irrelevant to my purpose. It might take offense at this if I bothered to tell it such a thing and might even fling poo at me, but I’m not going to tell it anything precisely because it is not relevant.

The good people of Walla Walla were displeased when Starbucks came to town at the turn of the century. It wasn’t just that they already had a local coffee shop–two of them, by some measures–but also that Starbucks, being a den of iniquity, was also open on Sundays. But between the heathen carpetbaggers that were buying up farmland for vineyards, the debauched tourists that visited the wineries, and the pagan college students, there was a market for Starbucks in Walla Walla and so it thrived.

When Hochschild writes in Strangers in Their Own Land that “a blue-collar way of life was going out of fashion, and with it, the honor attached to a rooted self and pride in endurance—the deep story self. The liberal upper-middle class saw community as insularity and closed-mindedness rather than as a source of belonging and honor,” it’s important to actually define what honor is and realize that it’s been opposed to capital for centuries.

Looking to Alasdair MacIntyre’s After Virtue, we get that honor is not a specific virtue internal to an individual, but rather the signifier of a relationship between an individual and their community; it is the social recognition of an individual’s reliable commitment to fulfilling a social role that establishes, maintains, or restores the social order. So society has to recognize the value of a role being played and then also recognize the quality of an individual playing that role in such a way that anybody else in that society knows what to expect from the individual based on their known social role. The importance of honor is bound to the importance of reliability. Soldiers must be honorable because their lives are dependent on the reliability of the other soldiers in their group; they are then honorably discharged. Judges must be honorable to reliably ensure the rule of law to maintain order in society; they are hailed as honorable when they enter their court.

Honor is nested in tribalism, in the recognition that the individual can never be secure unto themself but that a reliable community can provide for continuity. The ancient text of Gilgamesh, in which bad king becomes a king to be proud of before learning that personal virtue will not stave off death contextualizes the individual within the society: it begins by inviting the reader to see

…the holy Eanna Temple and the massive wall of Uruk, which no city on earth can equal. See how its ramparts gleam like copper in the sun. Climb the stone staircase, more ancient than the mind can imagine, approach the Eanna Temple, sacred to Ishtar, a temple that no king has equaled in size or beauty, walk on the wall of Uruk, follow its course around the city, inspect its mighty foundations, examine its brickwork, how masterfully it is built, observe the land it encloses: the palm trees, the gardens, the orchards, the glorious palaces and temples, the shops …

And it concludes with Gilgamesh, having utterly failed in his own actions to overcome his mortality, bringing the outsider Urshanabi back to his city and inviting him into the order of things:

This is the wall of Uruk, which no city on earth can equal. See how its ramparts gleam like copper in the sun. Climb the stone staircase, more ancient than the mind can imagine, approach the Eanna Temple, sacred to Ishtar, a temple that no king has equaled in size or beauty, walk on the wall of Uruk, follow its course around the city, inspect its mighty foundations, examine its brickwork, how masterfully it is built, observe the land it encloses: the palm trees, the gardens, the orchards, the glorious palaces and temples, the shops and marketplaces, the houses, the public squares.

And coming from this mindset, what we owe to the history and ancestry from which we have inherited our culture and civilization is to behave honorably so that the culture and civilization that outlasted our predecessors will continue to outlast us. And it’s easy to get caught up in this, to join in a participation mystique at the wonder of the group; it’s a deep response to want to belong, to want to be relevant to a group that will make us secure enough. In Thus Spake Zarathrustra, Nietzsche describes the meta-system of what qualifies as honorable in a society:

It is laudable, what they think hard; what is indispensable and hard they call good; and what relieveth in the direst distress, the unique and hardest of all,—they extol as holy. Whatever maketh them rule and conquer and shine, to the dismay and envy of their neighbors, they regard as the high and foremost thing, the test and the meaning of all else.

But the flip-side to a long-cultivated culture that provides an extensive definition of honor as a condition to social inclusion is that it’s easy to step outside of it. The old Jewish laws against homosexuality were similarly against eating bacon-cheeseburgers, for example. The problem with honor is that the more ways there are to deviate from it, the fewer people will have it until nobody remains to honor the most reliable people. It is not uncommon for the dogmatic rules-laden so-called fundamentalist churches of America collapse when the patriarch of one clan gets in a feud with the patriarch of another clan over some alleged slight, resulting in the less-combative clan abandoning the church in apparent dishonor.

But where there are many dishonored people, there is also a market opportunity for chain coffee shops to be open on the sabbath.

This isn’t new at all; in Shakespeare’s The Merchant of Venice, honor is in the common parlance of most characters except for the culturally and religiously excluded Jewish moneylender, Shylock, who reserves his only recognition of honor for the judge who he expects to uphold his contract against the people that were constantly slighting him and treating him with dishonor despite their reliance on his fiscal resources. Yet on the basis of the culturally-honorable religion of Christianity, the Jewish outsider is barred from legal recourse, of course: “if thou dost shed One drop of Christian blood, thy lands and goods Are, by the laws of Venice, confiscate Unto the state of Venice.” But the point is that there has long been a tension between the tangible capital and the intangible honor.

Part of the mythos of capitalism is that it has a “universalizing” mission, as Chibber derisively recounts in Postcolonial Theory and the Specter of Capital. On this I agree with Chibber: it does not. The teleos of capital is to grant its wielder universal access without granting universal participation. It is, like knowledge or honor, a power desirable in that it allows social action that other people are barred from engaging in. But Chibber shortchanges capital in his wholesale dismissal of Guha’s historically dubious claims, puns intended: when too many people were excluded from a social order and moved to overturn the order, the tangible currency flooded into the transactional gaps created by the unreliability of honor in a time of instability. And, over time, capital has generally displaced honor as the foundation of social stability because with its disregard for history and legacy, capital appears to be more inclusive than it actually is. As Michaels explains:

One of the first major works of neoliberal economics by an American is Becker’s [The] Economics of Discrimination, which is designed precisely to show that in competitive economies you can’t afford to discriminate. Foucault sort of marks the beginning of neoliberalism in Europe with the horror at what the Nazi state did and the recognition that you can legitimize the state in a much more satisfactory manner by making it the guardian of competitive markets rather than the guardian of the German volk. And today’s orthodoxy is the idea that social justice consists above all in defense of property and the attack of discrimination. … the model of social justice is not that the rich don’t make as much and the poor make more, the model of social justice is that the rich make whatever they make, but an appropriate percentage of them are minorities or women.

But how then do we account for what was lost? Hochschild provides hints as to what scraps of remembered honor litter the economically blighted landscape: one interviewee positively says “They used to brag on my dad at the plant that he was so reliable and steady”; another interviewee negatively says “If you flee, in my mind, you’re a traitor unto yourself.” Hochschild writes about the locals loss of ecosystem to industrial pollution as if it were the fall of Uruk with her aging interviewees finding no consolation for their mortality.

Returning to Chibber, however, I would suggest that this sociological study could be recast as a subaltern study of a culture that got colonized by capital. Chibber explains the subaltern perspective against the common bourgeois-subsidized narratives:

The language of a recognizably bourgeois politics will not be universal. Indeed, the assumption that politics is organized around the rational pursuit of individual interests becomes problematic. Often politics will be waged in religious language and around religious issues. Furthermore, the dominant axis will typically be community/ethnicity, not individual or class interests.

To put it another way, in order to understand why residents of states like Louisiana or Kansas often vote against their economic self-interest, us dishonorable neoliberals must first realize that they’re not economically self-interested. If they were economically self-interested, then they wouldn’t still be in Louisiana or Kansas.

I had–past tense, hail Eris–a brother-in-law in Walla Walla whose father had come from a dishonorable background but had set down roots and built up a business and the family name but was not a good person or a good father. My ex-brother-in-law worked for his father’s business and was likely to inherit the business at some point, but while he received many perks as a son from the man who was exploiting his labor for profit, a paycheck sufficient to the needs of his family was not one of them, and this was a source of ongoing tension and strife between him and his father, a fault line in the family. I remember my ex-brother-in-law as being a nice guy and a hard-working family man of the sort that could probably carve a niche and be successful wherever he went, so I was confused about why he stayed to suffer chronic disrespect and shortchanging by his father. The reason was nothing more than that their name meant something in Walla Walla. Having had parents and grandparents that moved as necessary for economic opportunity, I didn’t understand this and I’m not sure I really understand it still.

But I do know that as the strain of maintaining their small-town family honor dragged on them, they started buying lattes on Sunday.

The particular problem, then, is not just “economic anxiety” but rather the loss of one social currency, honor, while being generally excluded from its socioeconomic substitute as is a warning for the precarious edge of capitalism. The bourgeoisie politicians say they want to promote job growth, but most people hate their jobs–that’s why they have to be bribed with paychecks to do them. No, the point of a job is to gain access to a social currency be it money or–“They used to brag on my dad at the plant that he was so reliable and steady”–honor.

I would propose that what social honor feels like to an individual is relevance, that the honor of a role signifies the relevance of the person filling it. The glories of Uruk are what preserve the relevance of Gilgamesh. People spend their disposable income on social relevance; Veblen’s “conspicuous consumption” fills in the gaps of missing social honor. And while Network some 40 years ago warned us that capitalism was uprooting the relevance of the individual in society, today Dr. Bell notices that we’re afraid of being irrelevant to the machines we’re building as demonstrated by cultural artifacts like Ex Machina and Her.

The dishonorable mercenary labor force–comprised of short-term beneficiaries of neoliberalism such as myself–is reassured that there will always be work for us to do as we automate social roles out of existence. In 2001, I eliminated a huge swathe of the accounts payable department. Now we’re seeing artificial intelligence lawyers and insurance adjusters shutting humans out of the white-collar job market. The politicians assure us that we can just re-train people to get them back into the labor force, but when IBM’s Watson starts displacing doctors with a decade of specialized education and outstanding student loans to match, what re-training can we really hope for?

My employer tells us that we should be driving our careers in one memo and extols the glories of self-driving cars in the next with the baffling obtuseness of a brain-damaged goldfish. Because we’re deep enough into this late stage of capitalism that the executive class can be corrosively sloppy in their maintenance of the privileged social control class, that they can be careless enough to treat us like that irrelevant capuchin monkey I mentioned that, despite its irrelevance, is still right where we left it.

So, on the one hand, I can say that I still don’t fully grasp why my former brother-in-law stayed where he was and put up with small-town psychodrama in the name of family honor back when his job market was strong. But on the other, those of us who expected to maneuver our peculiar skilled labor to be more equitably exploited by capital over time may soon run out of moves to make. So, to put a point on it: That, above and beyond the election of an thin-skinned orange bourgeois’abe troll to an office full of red buttons that ought never be pressed, is what worries me about the future.

At the end of Goethe’s Faust, when Faust dies–oh, sorry, spoiler alert–he ponders what it means that his grand plan of reclaiming land from the ocean for a secure and prosperous city to thrive upon was incomplete.

I work that millions may possess this space,
If not secure, a free and active race.
Here man and beast, in green and fertile fields,
Will know the joys that new-won region yields,
Will settle on the firm slopes of a hill
Raised by a bold and zealous people’s skill.
A paradise our closed-in land provides,
Though to its margin rage the blustering tides;
When they eat through, in fierce devouring flood,
All swiftly join to make the damage good…
Such busy, teeming throngs I long to see,
Standing on freedom’s soil, a people free.

The honored king Gilgamesh is able to accept his mortality by knowing that his great city will survive him. The wealthy capitalist Faust dies on the edge of satisfaction with hope for the people who will survive him. The modern neoliberal executive class engages in tax inversions and shirks employee pensions and health care. It seems to me that this might be a collectively short-sighted existential mistake that thousands of years of civilization might warn them against. But if they won’t listen to the prophetic advice of our history, they’re not going to listen to me repeating it.

So now it’s clear that even those of us privileged, skilled and lucky enough to be affluent this year are going to be struggling to make our lives relevant despite capital instead of along with it. It’s a daunting prospect, but this is why we practice building contingency plans–that are currently all some variation of “take the money and run,” but what did you really expect from a guy who drinks espresso even on Sunday?


Death Star Counterplans

I just got back from watching Star Wars: Rogue One and while it is most certainly both a tragic war movie and a Disney movie–the mom is killed before the first scene is over as expected (Corliss, 2014)–it did convince me that the United States should build a Death Star. To be clear, I mean that we should be doing this unilaterally and as a counter-plan to any proposed space-oriented cooperation with China, typically predicated on repealing the Wolf amendment, that would affirm the current policy debate resolution of “The United States federal government should substantially increase its economic and/or diplomatic engagement with the People’s Republic of China.

Now any sensible person would say that the United States isn’t about to build a Death Star, such a thought is preposterous! And I get that, and I totally agree. But if we have to take the affirmative plan seriously despite Trump’s behavior already putting us on the brink of a cold war (Luce, 2016) with a country that we still owe a trillion dollars to despite their recent divestment that the affirmative must overcome to be topical (Phillips, 2016), then we must necessarily also seriously consider the benefits of having a Death Star.

With that in mind, we present the counterplan: the United States Federal Government should unilaterally construct a Death Star to establish military dominance of outer space.

A word on feasibility: the USFG already knows how much plan will cost and thus necessarily already has designs adequate enough to pursue this plan. We know this because they cited fiscal responsibility as a reason for rejecting the “We the People” request for a Death Star in 2012 (Shawcross, 2012). But fiscal discipline doesn’t apply to Republican presidents, especially when it comes to military spending (Dayen, 2016) so that’s no longer an excuse to refrain from building a Death Star.

It’s also worth noting that the 34,435 citizens who signed the petition to build the Death Star were undemocratically dismissed by Obama’s rejection of said petition; if we truly care about Democracy and reclaiming our nation from the rule of the minority then we ought to respect the will of the people and build a Death Star. Really, if you consider Trump’s popular loss (Campbell, 2016) an affront to democracy, then you’ll want to build the Death Star to show how serious we are about respecting the will of the people and maintaining the consent of the governed.

But Trump will want to build the Death Star anyway. First, and most obviously, the Republican-controlled legislature tends to like military spending (DeRugy, 2015) and the Death Star likely qualifies as such. It would be a suitable base for Trump’s planned expansion of the army, marines, and air force, all part of a larger goal of being “so big and so strong and so great” that “nobody’s going to mess with us” (Johnson, 2016). And speaking of bases, Trump’s intended military spending increases is basically culturally-acceptable jobs program (Mittelstadt, 2015) to expand the carrying capacity of the military to include more of his voter base (Asoni & Sanandaji, 2013). So this is a politically savvy move for Trump to maintain his base.

This also plays to Trump’s personal strengths. Not only does this look like a construction project so he believes he knows all about it (Schwindt, 2016), but it is also copying and expanding–and expanding bigly–on his associate Newt Gingrich’s earlier promises of a revitalized space program with moon colonies and trips to Mars (Sunseri, 2012). And as far as terrifying things that most Americans wish had been left back in the 1980s, Donald Trump just seems to have a natural affinity for the Death Star, last seen in 1983’s Return of the Jedi before coming back with more violence and cruelty than ever at the end of 2016.

So it’s really quite feasible that the United States would undertake the construction of a Death Star, and almost inevitable as long as Trump is in the White House. But let’s talk about advantages to having our very own Death Star.

The most obvious advantage to building a Death Star is the government spending boosts the economy, but that leaves the counterplan vulnerable to a critique of capitalism–as if the Marxists would ever seize the means of production to construct something with such a focus of vision as a glorious space station capable of destroying entire planets.

No, our first main advantage is absolute military superiority. As Tarkin (1977) observed, “The regional governors now have direct control over their territories. Fear will keep the local systems in line. Fear of this battle station.” So that annihilates the affirmative cards about how a race to space militarization is a bad thing and also gives us all of the advantages of hegemony while promoting states’ rights.

Second, and also quite important–especially with a planet-destroying space station in existence–we’ve solved for human extinction by getting people off of this planet and out into space. And unless/until women’s roles in the military are rolled back, we should expect that women will be stationed on our Death Star, a crucial point that functionally nullifies the extinction impacts that the affirmative will try to read about starting a nuclear war to stop the construction of the super-weapon, or resource over-extraction required by the construction resulting in ecosystem collapse, or military miscalculation resulting in our Death Star being used to blow up Earth. That’s right: if we build the Death Star, we solve for all of these extinction scenarios by virtue of becoming a space-faring species. The affirmative can’t draw that clear of a line with any kind of certainty, and that’s even if they can guarantee Chinese cooperation with their plan which they really can’t anymore.

Skywalker Family Reunion Photograph, 1977

The very image of a caring father and dutiful daughter.

But third, and this advantage really ties it all together, is Trump’s personal motivation in building a Death Star: the Death Star is really all about bringing fathers and daughters together. From the Skywalkers (1977) to the Ersos (2016) we see fathers and daughters coming together because of the Death Star. And if there’s one thing that Donald is particularly keen on, it’s spending more quality time with his daughter Ivanka (Lavender, 2016). So with the goal of spending more time with Ivanka in mind, building a Death Star is a natural choice for Donald Trump. When viewed with that goal, we can even see how this weapon of mass destruction can be cast as a vital tool in the Republican platform of “family values” (Boyer, 2016) which, above and beyond the previously mentioned military affinity, means that Trump will gain political capital from his base for pursuing this project.

Of course, being able to run this counterplan is not just predicated on the affirmative’s pursuit of space cooperation, but also on congress having not yet accepted Donald Trump’s nomination of Darth Vader to lead NASA and get this program off the ground.

So you see, compared with the preposterousness of insisting that we can substantially increase our “economic and/or diplomatic engagement with the People’s Republic of China” while our government is actively antagonizing Chinese leadership just by waving a fiat wand, the preposterousness of building a Death Star using that same ridiculous game-mechanic methodology is actually very easy to argue for and–rather distressingly–provides a lot of genuine insight into real-world values, policies, and political practices. So if the judge values education (but not fairness; building the ultimate implement of hegemony-enforcement is a clear signal that fairness is not on the table) then they may as well vote to build a Death Star because the affirmative proposals are consistently ignorant of the chilling effects the status quo is feeling in our relations with the People’s Republic of China.


Send in the Clowns

This is to be read as a mostly-satirical speech. It was inspired by a girl dropping an offhand a joke about being a clown, and thus holds to her perspective. But crucial to satire, to parody, to the humor that corrodes cognitive defenses is staying committed to the joke until its work is done. And that’s what I’m going to do here. Let’s begin.

This year was a really difficult year for My People. You all have no idea. We thought we were a beloved and cherished minority that held a special place at the edge of your culture. But the sudden vicious rise of racist Coulrophobic bigotry made me realize how precarious existence as a clown really is.

Yes, I am a clown. My heritage is from my grandmother, a full-blooded Vaudevillean who passed away last year and is pushing up water-squirting trick daisies now. It’s not a mere lifestyle choice, it’s a core part of my being, it’s where I come from. And just like racist Islamophobes get triggered by the traditional muslim head-covering of the hijab, so too racist Coulrophobes get triggered by the traditional clown head-covering of the curly-haired red wig.

Now you may try to down-play my heritage by letting me pass for a white girl, but I reject that: I am a clown. At least partially. And the rest of my heritage is that of a white girl, so the ritual of cultural appropriation is, like, the only other culture I have. So, coming from this particular intersection of whiteness and clownness, I’d like to spend a few minutes discussing how cultural appropriation facilitates racism today.

I know you don’t think you need “the talk.” You’re probably thinking “But America just elected a clown president — we’re clearly in a post-Coulrophobic era now!” And you’re so naive; that’s not grease paint, it’s spray tan and cultural appropriation and all the more reason we have to have this talk now.

The problem starts off innocently enough with a little bit of “that looks like fun, I want to play too” cultural appropriation. Take, for example, Red Nose Day. It appropriates the clown’s red nose to raise money not for clowning, but for doctoring, off of Patch Adams clown/physician intersectionality — which is still kind of okay. But then it gets promoted by neoliberal capitalism that applauds the Martin Shkreli position of “laughter is the only medicine you can afford now that I’ve jacked the price of your meds by 5500%.” So when we see that that’s what’s going on, we kind of object to it: we want our noses back, please. But Shkreli is like the asshole uncle that doesn’t know when to quit taunting us with “Got your nose! Got your nose!”

But that’s just how it starts. You may have noticed that the money was going for medical work, not clowning work. Which isn’t bad, except that this is where we get into cultural erasure, the point where the elements of our heritage get spread so thinly throughout a dominant culture that people forget that we really do exist. Consider how this past election was scornfully referred to as a circus and the candidates were disdainfully called clowns, as if their bungles, gaffes, and stumbles had an iota of the consideration we put into ours. My People, with the backing of Ringling Brothers and Barnum & Bailey, took umbrage and offense at this — really, there was enough umbrage and offense produced on the campaign trail for everybody to take some; it’s like a renewable toxic resource — so they launched a Take Back The Circus campaign. This is true, this happened: but only like 200 people, mostly my clown brothers and sisters, noticed; people had already turned their attention from the greatest show on earth to the gratingest show on earth. Our culture was effectively erased.

And then the media blew up with news that a handful of mentally-ill clowns were luring children into the wild. Of course, because we’re clowns and not proper white-folk, the term “mentally ill” was replaced with terms like “creepy”, “evil,” and “super-predator” to justify the police profiling our entire demographic, especially the boy-clowns.

Have you ever seen a cop arrest a clown? They’ll come along, truncheon him down, zip-tie him, and stuff him in the back of their squad car all alone and drive him off to jail totally ignoring the fact that they could easily fit another seven clowns in that car with him. It’s this kind of cultural insensitivity to our ritual of the clown car that adds insult to police brutality.

In response to the proliferation of these stereotypes and harassment, a Clown Lives Matter movement started in Tuscon. This is also true, this also happened. And us clowns took it seriously and anybody else who heard about it thought it was some kind of joke started by agitators and clown supremacists.

Clown supremacists. Really? We have our clown dignity and our clown pride, but when we’re the only ones speaking truth to fascism now or to royalty in the past, it’s been the truth that nobody has a monopoly on truth and that everybody has vulnerabilities. We’re strictly egalitarian like that.

So please repeat after me: “There is no such thing as a clown supremacist.” Thank you.

Then at the end of November, Anas al-Basha, a clown in Syria who was trying to distract the children of Aleppo from the horrors of the war going on around them, was killed by a regime air strike. Because apparently once you’ve taken our red noses, mis-associated us with plutocrats, and spread the news that we’re scary and horrifying, our actual clown lives… don’t matter any more.

So we started with a sort-of innocent Red Nose Day and ended with Ethnic Clownsing.

[That’s right, / Well come on,] Laugh, Clown, Laugh.

So, because it’s apparently inappropriate to raise my finger to 2016, I will instead raise this trick daisy from my granny’s grave to 2017, and while we indefinitely wait for people to develop respect for cultural differences and appreciation of diversity I will once again renew the call to Send In The Clowns.


Trumping Qualified Immunity

We all should practice more stoicism, but fuck that when it comes to our children. The anguish is proof they matter. —@th3v0t4ry

Given the current topic of “Resolved: The United States ought to limit qualified immunity for police officers” it’s actually an entirely reasonable negative position to say that elections have consequences and the consequence of electing the law-and-order candidate is that police officers get to keep all of their qualified immunity. But the consequences of elections also provides ample ground for the affirmative to make a case for limiting qualified immunity, and it goes like this, untimed, and with a personal note at the end.

Affirmative Case

What is qualified immunity?

Qualified immunity is a common law doctrine designed to protect government employees from the burdens of suits arising from actions taken in their official capacity. Consistent with its purpose of ensuring that “‘insubstantial claims’ against government officials be resolved prior to discovery and on summary judgment if possible,” the doctrine confers immunity from suit, rather than serving as a mere defense to liability. … in order to defeat a state officer’s claim of qualified immunity and impose individual liability under § 1983, a court must find both that (1) the plaintiff’s allegations, if true, evince the violation of a constitutional right and (2) the constitutional right in question was clearly established at the time of the official’s act. (Meltzer, 2014, p. 1284)

What is Section 1983?

Congress originally passed 42 U.S.C. § 1983 as § 1 of the Ku Klux Act of April 20, 1871, with the express purpose of enforcing the Fourteenth Amendment. The statute creates a private cause of action against any person “who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” … Critically, § 1983 actions also reach conduct that other mechanisms of police regulation do not—namely, Fourth Amendment events that fail to discover incriminating evidence, claims of excessive force that do not rise to the level of crimes, and, most alarmingly, “searches and arrests not aimed at successful prosecution, but rather at the assertion of police authority or . . . police harassment.” (Meltzer, 2014, p. 1283)

Why is this a problem now?

there is reason to believe that the alternative avenues of rights articulation routinely cited by opponents of Saucier—suppression, municipal liability, and the other tools of police regulation listed above— will not fill the void created by Pearson. The principal reason for this disparity, as Justice Alito suggested in Pearson, is the fact that certain constitutional claims are unlikely to see litigation outside of the qualified immunity context—for example, Fourth Amendment searches and seizures not resulting in criminal prosecution and incidents involving excessive force. Logically, as the number of cases expressly recognizing constitutional rights decreases, the number of § 1983 suits that can be dismissed on clearly established grounds increases. (Meltzer, 2014, p. 1280)

To summarize thus far…

If a police officer, claiming to be acting as a police officer, behaves badly against a citizen, then the citizen can sue either the municipality as an entity (if the problem appears to be systemic or cultural) or the police officer specifically (if the specific officer’s actions violated a clearly established constitutional right), and the ability to sue specific police officers instead of police departments was created to prevent the KKK from joining the police and using qualified immunity as a shield for their hate crimes.

A word on departmental consent decrees

The 1994 Violent Crime Control and Law Enforcement Act … empowered the government to sue police agencies anywhere in the country if they exhibited a “pattern and practice” of using excessive force and/or violating people’s civil rights—and compel them, under what’s known as a “consent decree,” to change those practices. … Since the law came into effect 20 years ago, two things have become apparent: how resistant many police departments remain to fundamental reform; and how critical, therefore, the consent decree has been—first, in forcing police departments to jettison their often brutal racist, and unaccountable warrior-cop cultures; and second, in transforming them into organizations committed to policing constitutionally and with legitimacy among the populations they serve. (Domanick, 2014)

And

Cleveland’s consent decree came after an 18-month-long Justice Department investigation that found police officers too often used excessive force and that the city did not hold wrongdoers accountable. (Heisig, 2016)

Consent decrees have become widespread

Currently about 20 cities have entered into consent decrees or “memos of understanding” with the Department of Justice (DOJ), usually under threat of civil rights lawsuits filed by the DOJ if they refused. … The departments and police agencies vary widely: they have included Pittsburgh, Los Angeles, Cincinnati, Oakland, New Orleans, Portland, Oregon, Cleveland, New York City, Detroit, the New Jersey State Police, the Virgin Islands PD, and, most recently, departments in Seattle, Albuquerque, NM and Newark, NJ. (Domanick, 2014)

And

Over the past two decades, the Justice Department has undertaken its deepest interventions at 16 police departments that had patterns of excessive or deadly force, implementing reforms under the watch of independent monitors. (Kelly, Childress, & Rich, 2015)

Trump’s Department of Justice will roll back from this

Trump’s repeated comments about strong police and his surrogates’ backing of controversial policies like stop-and-frisk policing won him an unusual endorsement from the Cleveland Police Patrolmen’s Association, the union that represents the city’s rank-and-file officers, and the same union whose president sits on a board responsible for making reform recommendations. The endorsement created a rift between the union, and a separate union that represents black officers on the force. … The Republican president-elect has made it clear that he will not use the types of federal intervention President Barack Obama’s Justice Department favored for troubled police departments, civil-rights lawyers and experts say. … That could have a major impact on the police-department investigations that are already underway and whether new ones are initiated. (Heisig, 2016)

And

The Justice Department is set to significantly shift its priorities under Donald Trump, reflecting the themes of a presidential candidate who consistently described the country as riven by chaos and in need of more powerful law enforcement. … The department … is likely to take a more hands-off approach toward police departments alleged to have overused force and to loosen restrictions on surveillance in Muslim communities, according to legal analysts and Trump’s public statements. (Zapotosky, Lowery, & Berman, 2016)

To summarize

Police overreach and brutality has become normalized. The federal Department of Justice has been trying to fix it, but their progress has been inadequate to ensure citizens’ rights (per Meltzer “tools of police regulation listed above—will not fill the void created by Pearson” above) and President-Elect Trump has made clear that he intends to have a lackluster Department of Justice, trusting demonstrably-untrustworthy local police departments to maintain law and order.

The horrid reality

a FBI warning of October 2006 … reported that “White supremacist infiltration of law enforcement” represented a significant national threat. … A federal court found that members of a Los Angeles sheriffs department formed a Neo Nazi gang and habitually terrorized the black community. … the Chicago police department fired Jon Burge, a detective with reputed ties to the Ku Klux Klan, after discovering he tortured over 100 black male suspects. … Cleveland discovered that many of the city police locker rooms were infested with “White Power” graffiti. … a Texas sheriff department discovered that two of its deputies were recruiters for the Klan. … This year, alone, at least seven San Francisco law enforcement officers were suspended after an investigation revealed they exchanged numerous “White Power” communications laden with remarks about “lynching African-Americans and burning crosses.” Three reputed Klan members that served as correction officers were arrested for conspiring to murder a black inmate. At least four Fort Lauderdale police officers were fired after an investigation found that the officers fantasized about killing black suspects. (Jones, 2015)

The nightmare scenario

During the Civil Rights movement, one of the KKK’s first orders was to infiltrate police departments, “because the laws don’t apply to them if they are the law,” (Gardner, 2015)

And

From 2008 to 2014, the number of white supremacist groups, reportedly, grew from 149 to nearly a thousand, with no apparent abatement in their infiltration of law enforcement. (Jones, 2015)

And

One of the largest Ku Klux Klan groups in the country has announced a parade to celebrate President-elect Donald Trump’s win. … The Loyal White Knights of Pelham, N.C., says on its website that its parade will take place on Dec. 3. (Kaleem, 2016)

Which happened:

And

President-elect Donald Trump is drawing praise from the Ku Klux Klan, neo-Nazis and other white nationalist groups for appointing former Breitbart executive Stephen Bannon as his chief strategist… Trump has tried to distance himself from white nationalists, but his decision to bring Bannon to the White House has caused those questions to resurface… David Duke, a former KKK leader … called Bannon’s hiring an “excellent” decision… “Perhaps The Donald is for real,” Rocky Suhayda, chairman of the American Nazi Party, told CNN… Bannon will “push Trump in the right direction,” suggested Richard Spencer, president of the white nationalist National Policy Institute. “That would be a wonderful thing.” (DeVaney, 2016)

But wait there’s more!

Donald Trump just named Alabama Senator Jeff Sessions (R) as his pick for Attorney General, and white nationalists are thrilled. … The last time Senator Sessions was up for a federal post — a judgeship in 1986 — he was deemed too racist for the job. … the Daily Stormer, a white supremacist, neo-Nazi news site, reported happily that … “It’s like Christmas,” Anglin wrote “honestly, I didn’t even expect this to all come together so beautifully. It’s like we’re going to get absolutely everything we wanted…Basically, we are looking at a Daily Stormer Dream Team in the Trump administration.” … And David Duke, former Grand Wizard of the KKK and avid Trump supporter, went on a Twitter tear: “Bannon, Flynn, Sessions — Great! Senate must demand that Sessions as AG stop the massive institutional race discrimination against whites!” … Trump’s priorities are clear in his early choices of advisers. The elevation of white nationalist figure Steve Bannon wasn’t the exception. It’s clear now that it’s the rule — and white nationalists are celebrating. (Raymond, 2016)

To summarize

Violent white supremacists have been trying to infiltrate police departments to mask their hate-crimes with the color of law for almost 150 years. They made it a priority 50 years ago. They flourished in reaction to having a black president. And when the Supreme Court (that also coincidentally gutted the Voting Rights Act) made it more difficult to breach a police officer’s qualified immunity, Obama’s Justice Department responded by increasing regulation of police departments. And where we’re at now is Donald Trump is about to suppress the Justice Department but qualified immunity is still a thing for the KKK members infiltrating the police department, the very people it’s supposed to not protect.

If you care at all about Justice, about the justice that can only be achieved through equal protection under the the law and upholding the fourteenth amendment of our constitution, then you must vote to limit qualified immunity for police officers and uphold the Ku Klux Act of April 20, 1871.

A Word About Donald Trump Specifically

How do I put this delicately? Racism and fascism has been integral to Donald Trump for 27 years.

Nearly three decades before the rambunctious billionaire began his run for president … Trump called for the reinstatement of the death penalty in New York following a horrific rape case in which five teenagers were wrongly convicted. (Laughland, 2016)

He spent a reported $85,000 placing full-page ads in all four major New York daily newspapers. … Trump’s 1989 ads … made reference to … the need to infringe on the civil liberties of some to protect the law-abiding many, to demonstrate the strength and commitment to reclaim the city from out-of-control groups of criminals and demanded the restoration of the death penalty in New York state. …The ads … seemed to justify and feed a lynch-mob mentality around the case … [T]hey are … early proof that Trump’s demonstrated habits of scapegoating and group-based suspicion, his insistence that either can be a solid basis for public policy, have been nurtured for some time. (Ross, 2016)

In 2002 … Matias Reyes, a violent serial rapist and murderer already serving life inside, came forward and confessed to the Central Park rape. He stated that he had acted by himself. A re-examination of DNA evidence proved it … [T]he convictions against each member of the Central Park Five were vacated by New York’s supreme court. … Following a 14-year court battle, the Central Park Five settled a civil case with the city for $41m in 2014. But far from offering an apology for his conduct in 1989, Trump was furious. (Laughland, 2016)

[W]hen confronted again with just how wrong he was about the Central Park Five, Trump not only refused to acknowledge widely reported and well-known facts or the court’s official actions in the case… He described the men as guilty, and then demonstrated, once again, that he is a master at the dark art of using long-standing racial fears, stereotypes and anxieties to advance his personal and political goals. … He stoked support for solutions inconsistent with the law. And he refused to admit any error. In doing so, Trump showed himself to be genuinely willing to say the impolitic, to take a harder-than-hard stand on crime and to do or say anything to best and punish those who he believes have committed crimes. (Ross, 2016)

“Just like those ads, that speech was a call for extreme action based on a whole set of completely false claims. It seems,” Richardson said, “that this man is for some strange reason obsessed with sex and rape and black and Latino men.” (Ross, 2016)

And what’s past is prologue

For many members of the African-American community, Trump’s presidency represents genuine concerns of a resurgence of racism and institutionalised violence against them. … With Trump in power, [professor] Starks [Bob Starks, professor emeritus of inner city studies at North Eastern Illinois University in Chicago] claimed, the African-American community might witness more police shootings, more incidents of racist attacks against them and an increase in mass incarceration. (Younes, 2016)

And

With the impending change, civil rights advocates said they are bracing for the worst. … “This is a guy who will have no problem targeting civil rights leaders, targeting reporters. We’re back to a Nixon enemies-list world,” said the Rev. Al Sharpton, president of the National Action Network. “We’ve got to get ready to fight. This is serious.” (Zapotosky, Lowery, & Berman, 2016)

A Personal Note To Trump Voters

But maybe you’re a Trump voter because you don’t care about any of that. Maybe you were just hoping for a job and a tax cut when you voted for Trump and don’t notice that now you’re making calls for unity and reconciliation while standing next to the KKK under their preferred banner of armed revolt against and secession from the United States. I’ve known plenty of the “dispossessed” archetypal Trump voters; they were the scores of in-laws I walked away from. So while you might assert that Trump has repudiated bigotry, his crowd–filled with people like my brother’s in-laws who get triggered by hearing a commercial in Spanish–did not follow him to that revelation:

And/because:

“The irony of it all is that the poor white working-class Americans have elected a billionaire who epitomises an economic policy that was directly responsible for their poverty,” [Salim Muwakkil, a well-known Chicago radio host] said. (Younes, 2016)

And

President-elect Donald J. Trump, who campaigned against the corrupt power of special interests, is filling his transition team with some of the very sort of people who he has complained have too much clout in Washington: corporate consultants and lobbyists. (Lipton, 2016)

During the campaign, Trump made two kinds of promises to those white working class voters. One was very practical, focused on economics. In coal country, he said he’d bring back all the coal jobs that have been lost to cheap natural gas (even as he promotes more fracking of natural gas; figure that one out). In the industrial Midwest, he said he’d bring back all the labor-intensive factory jobs that were mostly lost to automation, not trade deals. These promises were utterly ludicrous, but most of the target voters seemed not to care. … What remains is Trump’s erratic whims, his boundless greed, and the core of Republican policies Congress will pursue, which are most definitely not geared toward the interests of working class whites.  (Waldman, 2016)

So what’s going on here? Most plainly, the voters thinking that Trump would vanquish the establishment were just marks for a con, like those who lost their life savings at Trump University. … The wealthy and powerful will have more wealth and power when he’s done, not less. There’s a lot that Trump will upend, but if you’re a little guy who thinks Trump was going to upend things on your behalf or in order to serve your interests, guess what: you got suckered. (Waldman, 2016)

On top of which, and this is important:

Hassan Minhaj

So let me be very clear: Fuck You.

The people you have chosen to screw over, regardless of intent, are my kids. My gay kids, my girl kids, my Jewish kids, my Arab kids, my Latina kids, my brown kids, my mixed-heritage kids. My kids.

And the One Thing I try to do for my kids is teach them think and speak and interact with the adult world. The happiest moments of my life are when they understand that and when they want more of that from me.

But the message I’m clearly getting here is this:

So, again, let me be very clear: Fuck You.

You’ve told me that my preferred civic engagement, that the last 7 years I’ve spent helping the public school kids whose educations you’re not adequately funding, isn’t valuable or even wanted.

But let me tell you something: your job is at risk or gone because me or somebody like me fed it to a computer. The first project I worked on when I started with my company was to annihilate the accounts payable department with a handful of web pages that actively facilitated globalization. You can hate me for that. You can hate me for shutting down economic opportunities for you and your kids that aren’t being replaced. You can hate me for being complicit in the rise of artificial intelligence tools that will render the years of toil physicians are going through practically null and void around the same time millions of truck drivers find themselves disgorged from the economy by autonomous cars which is almost certainly within five years. God knows that I’m unclear on how my students are going to carve their economic niche into an ever-contracting workforce.

And that’s what had me worrying for my kids for the past few years. I even started a non-profit foundation where the application is little more than having the kid explain to me and my board why they’re going to be just fine in spite of it all.

Right up until Tuesday night.

Now I’m more immediately worried about my kids getting assaulted, or raped, or murdered by the football players, by the lacrosse players, by the swim team, by the frat-bros who were super-obnoxious but seemed–at least temporarily–to be the aberration that my kids might guard against instead of the absolute norm whose lack of social impulse control is suddenly “Presidential!” that my kids will be unable to avoid. And in the medium term, I’m still worried about hyper-financialized capitalism, which you voted for despite the fact that it is what makes you poor and keeps you poor. And then in the long-term we’ve got the very real possibility of the landscape being blighted by climate change, shortening almost everybody’s lives and washing Florida out to sea. But, you know, first things first.

You told me that the part of my life that’s helping kids–maybe even your kid–learn and understand and succeed is worthless and unwanted. And that’s a deep, deep existential insult. But my kids assure me that you’re wrong, and I’ll take their word for it.

But then you also empowered the KKK and made me worry about my kids. And that… that’s not okay. I can’t take that. I can’t stick around for that.

If this nation hasn’t twisted itself into a syphilitic racist rust-belt ruin in two years, then we can talk about unity and moving forward. But I’ve got friends–goddesses, truly, as sympathetic as they are brilliant as they are beautiful–in other countries who are welcoming and have spare couches, so… I’ve got contingency plans. And just like I washed my hands of my ex-wife and former in-laws, I can wash my hands of this disaster and go someplace else to try to help other people’s kids make better lives for themselves. Because I don’t care whose kids they are.

So, and I really do mean this from the deepest, coldest abyssal depths of my heart-shaped void: Fuck You, Trump Voter.

 


Probably Probable Cause

They said all teenagers scare the living shit out of me  –My Chemical Romance, “Teenagers

Our first Public Forum topic of the year, Resolved: In United States public K-12 schools, the probable cause standard ought to apply to searches of students, isn’t particularly good for debate, but does do a great job of exposing how messy Supreme Court decisions are. Let’s look at some material for the Affirmative:

Observation: Interpretation of Positions

Let’s start with how this round ends: As the judge, you are either going to accept that the probable cause standard ought to apply to searches of students in public K-12 schools, or you’re going to hold with the status quo of reasonable suspicion as laid out by the Supreme Court in New Jersey v. T.L.O. (1985) regardless of state-by-state variations in process. Alternate adjustments to the status quo are not available options for you to vote for. Note: we mention this because the negative could run some squirrel cases on reducing the use or involvement of police in schools for disciplinary matters. It seems to me that we should, but that’s out of scope for the resolution at hand.

What do we know about these competing standards? “the Court has been consistent in requiring some degree of both reliability and basis of knowledge [to show reasonable suspicion], albeit less than is required to show probable cause.” (Grossman, 2016)

Definition: Reasonable Suspicion (status quo)

The standing law is included in State ex rel. T. L. O., 178 N. J. Super. 329, 428 A. 2d 1327 (1980) and was re-affirmed by the Supreme Court (New Jersey v. T.L.O., 1985)

“a school official may properly conduct a search of a student’s person if the official has a reasonable suspicion that a crime has been or is in the process of being committed, or reasonable cause to believe that the search is necessary to maintain school discipline or enforce school policies.” Id., at 341, 428 A. 2d, at 1333

The Supreme Court clarified:

Determining the reasonableness of any search involves a twofold inquiry: first, one must consider “whether the . . . action was justified at its inception,” Terry v. Ohio, 392 U. S., at 20; second, one must determine whether the search as actually conducted “was reasonably related in scope to the circumstances which justified the interference in the first place,” ibid. Under ordinary circumstances, a search of a student by a teacher or other school official will be “justified at its inception” when there are reasonable grounds for suspecting that the search will turn up evidence that the student has violated or is violating either the law or the rules of the school. Such a search will be permissible in its scope when the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of the age and sex of the student and the nature of the infraction.

And they claim this departure from probable cause is necessary because:

A teacher has neither the training nor the day-to-day experience in the complexities of probable cause that a law enforcement officer possesses, and is ill-equipped to make a quick judgment about the existence of probable cause.

But please note that:

  1. The modifier of “in light of the age and sex of the student” clearly violates the equal protection clause of the 14th amendment and
  2. in that same decision, the Supreme Court also maintained that “In carrying out searches and other disciplinary functions pursuant to such policies, school officials act as representatives of the State, not merely as surrogates for the parents, and they cannot claim the parents’ immunity from the strictures of the Fourth Amendment.” This exactly contradicts their other claim that teachers don’t know about and thus shouldn’t be held to the standard of probable cause.
  3. But it’s not even relevant anymore: these days we’ve got over 43000 “school resource” and other sworn police officers working in almost half of our nation’s schools (Gray & Lewis, 2015), so the Supreme Court’s expectation that school officials don’t understand probable cause is of vanishing relevance; police who are supposed to have that exact knowledge are often on-site.

Definition: Probable Cause (affirmed)

Our current understanding of the probable cause standard comes from Illinois v. Gates (1983).

“In [Illinois v.] Gates, the Court made it easier for the police to satisfy the probable cause test by holding that judges should now employ a totality of the circumstances approach. Courts reviewing warrants for probable cause could throw all the information into one analytical pot and decide if there was a “substantial basis” for concluding that probable cause existed.” (Grossman, 2016)

The exact phrasing used in Illinois v. Gates was: “probable cause is a fluid concept — turning on the assessment of probabilities in particular factual contexts — not readily, or even usefully, reduced to a neat set of legal rules.” (1983)

In dissenting against the Reasonable Suspicion standard in New Jersey v. TLO, Justice Brennan observes that

Two Terms ago, in Illinois v. Gates, 462 U. S. 213 (1983), this Court expounded at some length its view of the probable-cause standard. Among the adjectives used to describe the [probable cause] standard were “practical,” “fluid,” “flexible,” “easily applied,” and “nontechnical.” See id., at 232, 236, 239. The probable-cause standard was to be seen as a “common-sense” test whose application depended on an evaluation of the “totality of the circumstances.” Id., at 238. … Ignoring what Gates took such great pains to emphasize, the Court today holds that a new “reasonableness” standard is appropriate because it “will spare teachers and school administrators the necessity of schooling themselves in the niceties of probable cause and permit them to regulate their conduct according to the dictates of reason and common sense.” Ante, at 343. I had never thought that our pre-Gates understanding of probable cause defied either reason or common sense. But after Gates, I would have thought that there could be no doubt that this “nontechnical,” “practical,” and “easily applied” concept was eminently serviceable in a context like a school, where teachers require the flexibility to respond quickly and decisively to emergencies.

So what’s the bright line that warrants abridging Fourth Amendment rights? Justice O’Connor, in support of Reasonable Suspicion wrote that

Ordinarily, a search — even one that may permissibly be carried out without a warrant — must be based upon “probable cause” to believe that a violation of the law has occurred.

So if there’s a gap, it might be that merely enforcing school policies cannot meet the standard of probable cause necessary to warrant a search; that merely enforcing school policies has to be done without physically searching students. We’re not going to have the time to second-guess school policies at this juncture, but we concur with Justice Brennan that

children learn as much by example as by exposition. It would be incongruous and futile to charge teachers with the task of embuing their students with an understanding of our system of constitutional democracy, while at the same time immunizing those same teachers from the need to respect constitutional protections.

So let’s be very clear:

  1. The probable cause standard is nontechnical, practical, and easily applied, based on the totality of the circumstances.
  2. The probable cause standard for conducting a search can be met without a warrant.
  3. The probable cause standard maintains a consistency of teaching and embodying our system of constitutional democracy in school.

Conclusion

On the whole, the Supreme Court set an internally contradictory precedent on circumstances that are no longer generally true in New Jersey v. T.L.O. and as such the adoption of the Reasonable Suspicion standard should be dropped, reverting to the Probable Cause as is standard consistent with other state-compelled searches.

But why do we even care?

  1. We care about this issue because “the FBI is instructing high schools across the country to report students who criticize government policies and “western corruption” as potential future terrorists, warning that “anarchist extremists” are in the same category as ISIS and young people who are poor, immigrants or travel to “suspicious” countries are more likely to commit horrific violence. … This overwhelming threat is then used to justify a massive surveillance apparatus, wherein educators and pupils function as extensions of the FBI by watching and informing on each other.” (Lazare, 2016) Put simply, the FBI is using the lower standards of “reasonable suspicion” in schools to circumvent their usual requirement of “probable cause” in initiating otherwise illegitimate and illegal surveillance of students.
  2. The use of a lesser standard of reasonable suspicion for searching children in schools violates adults’ rights to due process since the adult is supposed to be subject to probable cause. This is because most states (Reuters, 2016) have laws making adults liable for juveniles’ actions: “Confronted by rising juvenile crime rates and a sense among some that lax upbringings are at least partly to blame, a number of cities and states recently have moved to impose legal penalties on the parents of young law-breakers… From Oregon to New Jersey, parents judged to have inadequately controlled their children now are subject to criminal financial liability, fines and, in some cases, even imprisonment.” (Dorning, 1995) So while the text of the resolution is focused on the rights of public school students, the cascading effect of the laws will erode the constitutional rights of their parents.

References

New Jersey v. T.L.O., 469 U.S. 325 (1985). Retrieved from https://scholar.google.com/scholar_case?case=4170966027434691269

Grossman, S. (2016, Spring). Whither reasonable suspicion: The Supreme Court’s functional abandonment of the reasonableness requirement for fourth amendment seizures. American Criminal Law Review, 53(2), 349-376.

Gray, L., and Lewis, L. (2015). Public School Safety and Discipline: 2013–14 (NCES 2015-051). U.S. Department of Education. Washington, DC: National Center for Education Statistics. Retrieved from http://nces.ed.gov/pubs2015/2015051.pdf

Illinois v. Gates, 462 U.S. 213 (1983). Retrieved from https://scholar.google.com/scholar_case?case=12877848434623819956

Lazare, S. (2016, March 6) The FBI has a new plan to spy on high school kids across the country. Salon. Retrieved from http://www.salon.com/2016/03/06/the_fbi_has_a_new_plan_to_spy_on_high_school_kids_across_the_country_partner/

Thomson Reuters. (2016). Parental liability basics. FindLaw. Retrieved from http://family.findlaw.com/parental-rights-and-liability/parental-liability-basics.html (Pull quote: “At least 42 other states and DC now have laws against contributing to the delinquency of a minor.”)

Dorning, M. (1995, December 11). In growing trend, if a child does crime, the parents may do the time. Chicago Tribune. Retrieved from http://articles.chicagotribune.com/1995-12-11/news/9512110126_1_juvenile-crime-parents-laws