More Graduation Ethics: The Cap And The Feather

eagle feather

In contrast to the Roy Costner saga, we have the graduation conduct of Chelsey Ramer, proud member Poarch Creek Band of Indians and a graduating senior at  Escambia Academy High School in Atmore, Alabama. Four years ago, graduating members of her tribe had worn ceremonial eagle feathers in their caps at the school’s graduation procession and the handing out of  diplomas. The school tool no action then, because it was taken by surprise, but this year, Chelsey’s class was presented with new dress code, as well as a contract seniors had to sign in order to participate in graduation ceremonies.

It forbade any “extraneous items during graduation exercises.” It also said students violating the agreement would not receive their diplomas until appropriate disciplinary actions were taken and students paid a whopping $1,000 fine.

Chelsey says she refused to sign the contract.  She decided that honoring her heritage with an eagle feather on her cap was worth whatever consequences that resulted. She wore the feather, and now the school is demanding that she pay the thousand dollar fine to receive her transcripts and diploma.

Ethics findings:

1. If Chelsea did not sign the contract, she didn’t violate the contract. The agreement says that refusing to sign means that she would not be permitted to participate in the ceremonies. As I read the document, if the school allowed her to participate, it waived the dress code, and has no right fining or otherwise disciplining the student by the terms of an agreement she never submitted to.

2. The school will claim that this wasn’t an agreement, and that the signature was merely to acknowledge that the terms had been read and understood. If so, the document was erroneously referred to in the document as an agreement. Moreover, it says right in the document that the penalty for not signing is having one’s right to participate in the exercises revoked. The school did nothing to meet its stated obligations, and allowed a non-signing, non-agreeing, non-conforming student to march with a forbidden feather in her cap. It can’t fairly fine Chelsea for conduct it said it would prevent and didn’t.

3. Chelsea says she was willing to accept the consequences for her statement. That’s her choice. She didn’t promise, by falsely signing an agreement, to do otherwise. She did not hide her defiant act. She did not disrupt the proceedings in any way, nor interfere with any other student’s graduation. She is not, in short, Roy Costner.

4. Does the school have a legitimate interest in promoting conformity in graduation dress? As someone who graduated from a famously ornery college during the height of student protest fever, I can attest that it does. My graduation was a circus parade, thanks to disrespectful graduates in face paint, with peace signs and strike symbols on the their robes, with flowers in their caps and with some wearing no pants. How does a school allow tribal feathers and not Kermit dolls, Flying Spaghetti Monster T-shirts, Impeach Obama hats and Groucho glasses? The best policies are either anything goes, or nothing does.

5. Even if the fine were properly levied, isn’t it excessive? In practice, it sure seems so; as a threat, it is almost necessary. The fine would have to be enough to act as a real disincentive; I can see a kid saying, “Hey, I only graduate once. It’s worth $250 bucks to do something they talk about forever, so I’ll dress as Batman.” A thousand dollars is a persuasive counter-argument. Nonetheless, insisting on that kind of penalty for a feather just isn’t reasonable, even with a warning.

As I see it, this student did nothing unethical. She didn’t break an agreement, didn’t disrupt the exercises, and was willing to accept reasonable consequences for her conduct—and the fine, in her case, is unreasonable.

_________________________________________

Facts: Indian Country Today

60 thoughts on “More Graduation Ethics: The Cap And The Feather

  1. I also wonder at the implied contracts already agreed to – certainly not being able to partake in the ceremonies is one thing, but witholding the diploma is another entirely. Students agree that by completing x number of years of schooling at x level of proficiency, the school will give them a diploma – which is a very neccesary document. Stepping back in in the final year of schooling and adding strictures that either must be adhered to or else the entire previous contract is null and void seems pretty one-sided.

  2. I assume they also mean that they will not process any transcript requests until the fine is paid. I was struck by the $1000 fine. The fine is obviously not to cover any expense of the district. The district officials could have just told the student she could remove the feather or leave the graduation ceremony. Instead, they levied a fine.
    I have noticed schools issuing fines and fees more and more in recent years. This has the (desired, I suspect) effect of introducing a tiered school system. Students on the lower tier have access to the schools (minimal) services. Upper tier students have access to band, sports, clubs, and books (many schools no longer provide books). It also ties in well with their efforts to be autonomous governments. They issue tickets, fines, and try to issue jail sentences. These powers are most effectively aimed at the poorer students who can’t afford an attorney who could sue the district or get criminal charges dropped due to their illegal nature.

  3. I hope some tribe with an in-house legal department lends her a hand. I would really like to see this principal face an enraged Indian nation or two over this.

  4. “4. Does the school have a legitimate interest in promoting conformity in graduation dress? As someone who graduated from a famously ornery college during the height of student protest fever, I can attest that it does. My graduation was a circus parade, thanks to disrespectful graduates in face paint, with peace signs and strike symbols on the their robes, with flowers in their caps and with some wearing no pants. How does a school allow tribal feathers and not Kermit dolls, Flying Spaghetti Monster T-shirts, Impeach Obama hats and Groucho glasses? The best policies are either anything goes, or nothing does.”

    I love that you ask that question I was thinking it myself as I read. Having said that I dont think the best rules is a black and white one. Which isnt to say that I dont like it because it’s black and white. Binary options have their place, but rather I think a better standard would be similar to religious exceptions to established law, just with a bend towards ethinic tradition instead of religion. You should be allowed to wear something if it is relatively discrete and representative of an ethnic tradition you actively identify with – vs one you elect solely for the ability to circumvent the rules like some people do with Rastafarianism and marijuana.

    • How are you going to determine if someone “actively identif[ies]” an ethnic tradition. How are you going to determine what’s “representative” of an ethnic tradition?

      Even if this was matching religious law, they would have to show that letting them wear the symbol under their clothes would be a violation. Wearing the feather on a necklace under the gown would be cool. If they didn’t wear the symbol normally, then they’d also likely lose. I doubt the feather is worn to regular classes.

      • Serious question? In the same way that the religious law works out for Rastas and how Potter Stewart makes obscenity calls. A case by case call based on observed patterns of behavior. And on traditional symbols for the second. In both cases the requirements are deliberately vague but obvious when they are being abused.

        • Except most of the “obvious[ly]…being abused” times are allowed. For instance, I can’t think of any christian denomination that requires wearing a visible cross to work, yet the cross is protected by religious exemptions. The practical rules for religious exemptions are already incoherent. I don’t see why adding on to that would be a good thing.

          Appealing to obscenity calls is also not a point in your favor. They are the perfect example of arbitrary and capricious determinations.

          • I think your trying to force explicit characterization onto something that cant be explicitly characterized. In the same way that ethics themselves are not explicit and need to be decided by human judgement. Is there a hard rule? Rarely. Is it obvious when something is wrong? Most times. Is the system perfect? Certainly not. But its as close to perfect as practically possible. The imperfection of the human judgment element is unavoidable but the alternatives are less reasonable.

            • The alternative is to not have exceptions for mumbo jumbo. You’re saying that’s less reasonable then rules that change based on our mind reading of what people believe?

  5. Ethical indeed… This is a private school, and from your link, the Headmistress was no longer employed there 2 days after graduation.
    Plus there is something called the federal American Indian Religious Freedom Act.”

    Not only will this girl get her diploma, the school may face a discrimation lawsuit and violation of Federal law.

  6. finding 1 (and by implication 2) bothers me. in law gaining a benefit of service from a contract (the graduation ceremony) deems one to be bound by the contract even if it isn’t signed. given that she received the contract and to all appearances was aware of the terms of the contract (her not signing it because of a condition she disliked), yet still showed up at the graduation ceremony combines to mean that she accepted by silence. if she didn’t agree to the contract she should have not participated in the ceremony.

    ethically I’m with the law on this one, you cannot let someone offer you a contract, fail to sign it and then wait until after they have performed a service to claim that there is no contract.

    • What?

      If I approached you and said “I’ll wash your windows for $1,000 dollars, just sign here.” And you replied “I’m not signing”

      Then I proceed with washing your windows, then by your standard you owe me $1,000….

      • Silence is not the same as refusal. When you offer the contract, if I say nothing and allow you to wash my windows, I am considered to have accepted your contract. There are grounds particular to your example which do not apply to the graduate which can be used to argue the validity of a contract between us, but that isn’t relevant.

        • “When you offer the contract, if I say nothing and allow you to wash my windows I am considered to have accepted your contract.”
          Wrong. A contract cannot be formed that way. You must be a squeegee guy. Offers have to be accepted, and acceptance cannot be assumed like that.

          • Love the squeegee guy reference. Never see them in the places I frequent on the west coast. Guess us looney Californians are too cheap to make a buck with a coercive squeegee service.

          • Acceptance by silence is a valid doctrine of contract law and does create a contract, at least according to my 1981 copy of the Restatement (2nd) of the Law of Contracts. I’m unaware of any change in the law and a quick google search shows no change, and while I will not entirely rule out a change in the past 3 decades I would wish to see some evidence of it.

            If you want to argue just the window washing then fine. In the window washing example, no there wouldn’t be a contract, but for reasons that are not present in the graduation case. I was simplifying and leaving out the factors which distinguish it from the graduate case. Wait didn’t I say in the reply you call “[w]rong” that “[t]here are grounds particular to your example which do not apply to the graduate?” Here is a way besides the actual refusal (there are more) to distinguish the window example from the graduate case.

            In the window example it can be said that a contract does not exist because I have taken no action which could be seen as acceptance of the services or made any use of goods provided by texag04 either of which is required for acceptance by silence. In the graduate case, by participating in the ceremony the graduate did receive a benefit from the offer-er of the contract. Participation in the graduation ceremony being offered to her on the basis of accepting the contract, if she was unwilling to accept the contract she should have refrained from participating in the ceremony.

            Do you need a 24 page brief of the doctrine of acceptance by silence and the nature of contracts? If texag04 (or another reader) wants to know about the doctrine they should read the Restatement (2nd) of the Law of Contracts. But going astray into the nature of window washing for cash isn’t adding much to discussion of the graduate case, where the doctrine does seem to apply.

            • I said you couldn’t form a contract the way you said in your hypo, and you can’t. I was 100% correct: silence BY ITSELF cannot form a valid contract after an offer. For silence to count as acceptance,there usually are some prior dealings between the two parties and the two parties understand that silence will be treated as acceptance. Silence may be considered acceptance where both parties have agreed that silence can be treated as acceptance.
              Such a scenario, where silence is regarded subsequently as acceptance, only occurs when…

              1. There was no express contract – Only one party made an offer while the other party did not agree to it.
              2. The offeror renders a service, offers to do a service or sends something to the offeree.
              3. The offeror gives notice that he/she desires something in exchange, and makes his intent to receive payment known. If there is no notice, there can be no contract and the service may be treated as a gift.
              4. The offeror does this without being requested to do so – The offeror does the service of his own free will without being prompted by the offeree or anyone else.
              5. The offeree has knowledge of everything stated above, and is aware or should be aware that the offeror desires something in return.
              6. The offeree must use or accept the service in some way, doing something which could be interpreted as acceptance.

              Yes, standing by and watching as someone paints your house after saying they would do it for X amount would be acceptance. But not until the job was finished. You made it sound like the painter could assume a contract because you ignored the offer. WRONG (as I said.)

              You need to read the Restatement more closely.

              • Restatement (Second) of the Law of Torts copyright 1981

                §69. ACCEPTANCE BY SILENCE OR EXERCISE OF DOMINION

                (1) Where an offeree fails to reply to an offer, his silence and inaction operate as an acceptance in the following cases only:

                (a) Where an offeree takes the benefit of offered services with reasonable opportunity to reject them and reason to know that they were offered with the expectation of compensation.
                (b) Where the offeror has stated or given the offeree reason to understand that assent may be manifested by silence or inaction, and the offeree in remaining silent and inactive intends to accept the offer.
                (c) Where because of previous dealings or otherwise, it is reasonable that the offeree should notify the offeror if he does not intend to accept.

                please check out (1)(a).

                • please check out (1)(a).

                  Please read the post (I would say “re-read”, but that would assume a first reading had already taken place).

                  The paper placed in front of the student said that signing was agreement. She refused to sign. She had the opportunity to reject the offer, and she took that opportunity to reject the offer.

                  In the current hypothetical, you were offered a service, and actively rejected it. That the service was still rendered doesn’t matter, because you voiced your rejection – you’re “but a word” to cease the rendering of services occurred before the services were rendered. Texagg would have no more right to compensation than your phone company would be if they offered you some new services, you said no, and they added them anyways and then billed you for them.

                  • “Texagg would have no more right to compensation than your phone company would be if they offered you some new services, you said no, and they added them anyways and then billed you for them.”

                    ATT offered me new services. I refused. They not only added them, they shipped new equipment to my home, via UPS. When I objected, they said I had accepted the equipment (even though I wasn’t home at the time; the package was left in an alcove). I was billed for the equipment. I said I was returning the package COD. They said they would not refund the postage, and continued the extra billing — with interest, and threats to d/c their current service.

                    I called UPS. When the truck arrived, I handed them the package and said I had never ordered it and was returning it. One more bill arrived, with the same threats. Then it was back to business as usual.

                    Moral: No analogy is safe anymore.

                    • And ATT was breaking the law. Accepting a package is not agreement to services. The unsolicited package can be treated as a free gift.

                • That’s consistent with what I wrote, but not with your hypothetical, and not with your agument. The contract isn’t completed until the service—PERFORMANCE— is completed or substantially so. The silence cannot normally accept the OFFER, which is what you maintained. Silence in the face of a fully executed service is not acceptance of the OFFER but acceptance of PERFORMANCE.

                  Christ.

              • I dont know. I think max makes a good argument.

                My understanding of his argument, is that the ethics of silence as a form of agreement rests on who initiates the service. If the some dude come to your house and randomly washes your car he cant claim that you agreed by silence and charge you. BUT if you go to a carwash, park your car in their queue and they perform a service, you are obligated to pay even if you never expressly agreed.

                The obvious parallel being that Ramer went to the car wash (graduation ceremony), parked her car in the queue to have it washed (participated in the ceremony), and then refused to pay.

                • However, if people are going down the street and offering to wash your car for $100, you say “no” and then look out your window 15 minutes later and see them in the middle of washing your car, you have no duty to tell them to stop and no duty to pay them when they are done.

                • If you park the car in the line then that isn’t silence—that’s a clear indication of intent. Silence without more is never acceptance. Contracts require a meeting of the minds, and it there is no indication that the offeree wants what has been offered other than not saying so, that won’t bhe intent. Allowing a service to go on in front of your nose without objection is not just silence.

                  • Isnt going to the graduation a clear indication of intent in the exact same way that parking your car in the queue is?

                    You initiate the request for service (graduation walk / car washing) by driving to the sight where the service is to be held (auditorium / business location), waiting in line to receive the service (the diploma roll call / washing washing queue), and then actually receiving the service (graduation walk on stage in front of friends and family / a spotless car). You couldn’t reasonably say that the intent there isn’t clear.

                    • This is more like a funhouse with a rights waiver. “You can only come in if you sign that we aren’t responsible for negligence.” She didn’t sign the waiver and didn’t pretend to sign the waiver. They still let her in. There wasn’t a shrink wrap argument upon going through the funhouse. The waiver was the agreement. She refused it.

                    • A graduation walk isn’t a service, and a graduate isn’t a customer. The graduation has already been earned and paid for. The Offer was the letter from the school, proposing new conditions on participating that were not in place when the original contract was made. It would be a contract of adhesion, as there was no option for bargaining and the power of the two parties was grossly disparate, if the student had to accept without being able to make a counter offer. The counter-offer: allow me to match with my feather, rather than refusing to allow me to march as you suggest in your offer. That offer could have been rejected by kicking her out of the parade when she showed up with her feather, but she did not accept the “offer” including the fine—sign this, and if you then violate the agreement, you agree to pay the fine.

                      Not kicking her out, and allowing her to walk in the parade, could be interpreted by a court as affirmative acceptance of her counter-offer, it seems to me, since the school did not follow its own terms in the original offer. Thus no fine.

                  • Cant reply to Jack under his most recent response so well double up here.

                    @Jack
                    I think your confusing graduation walk with degree. The optional ceremony itself undoubtedly constitutes a service. The only thing that has been earned is the degree itself, which can be had without the accompanying ceremony – which there is no entitlement to. Having fore-knowledge of the requirements to participate in the ceremony and then initiating the service sounds a lot like intent to me, in the exact same that knowing your expected to pay for a car wash and then going to the car wash is obvious intent.

                    @tgt
                    It more like a funhouse that allows entrance with a liability waiver… after you’ve been clearly and explicitly warned of the one risk associated with entrance. And for comparison of reasonable liability waivers: participation in most sports requires a liability waiver with far less specific warnings and far more catastrophic possibilities. The parallel is addressed in the second half of my response to Jack.

                    • What? The ceremony comes with service, just like the wipers come with the car. There was no special, new qualifiers for participating in the ceremony, other than graduating and behaving according to accepted tradition and decorum. No new agreement was necessary. The code, if it had not previously been made known, was a change, and it was presented as terms of an agreement. That was the error.

                    • The part of the liability waiver I was talking about was negligence. While being informed of risks is often enough to eschew liability, the negligence waiver never works without being signed. In this case, she wasn’t informed of the risks of participation, she was given a contract to sign that gave them certain rights over her. She refused to sign this contract, and they did not enforce the consequence that was open to them (refusing her entry).

                      Here’s another example, say I want to go skydiving, and the place wants me to sign a model release that they can use the video of my jump for promotional purposes. If I don’t sign the model release, and they let me jump, does that mean they can use my video in an ad? Of course not.

                    • For what it’s worth, I think any attempt at a market based analogy will always be flawed.

                      This isn’t a market scenario.

                      This is the state conferring a degree upon an individual. As will all societal traditions, especially those conferred by authorities (and especially those conferred in the name of the people) it will have solemn ceremony associated with it.

                      No market analogy, even via a contractual description will resolve this.

                    • Running out of horizontal room.

                      @Jack
                      The ceremony does not come with the degree, they are two separate services offered by the same institution. You can be denied access to the ceremony even after having paid for the degree and you must pay a separate fee to participate in the graduation ceremony. You do not pay a separate fee for the wiper’s on the car and, to my knowledge, there is no common practice of offering wiper-optional cars.

                      @tgt
                      Negligence and model release forms are both poor counter analogies.
                      A negligence waiver is to protect an entity from unnamed or unknown risks caused by the entity’s actions. Ramer’s risk was clear, enumerated, and caused by her actions. We can illustrate this concept with the common wet floor sign. If someone slips and falls on an unmarked wet floor, that company can be sued for negligence. If a sign is posted, “saying caution wet floor” and someone proceeds anyway, and subsequently hurts themselves, the store cannot be ethically sued for negligence.

                      The sky diving company would be in the wrong but the analogy doesn’t compare to Ramer. The model release involves waiving the signer’s rights to privacy, whereas Ramer’s involves protecting the schools right to enforce reasonable standards. You cannot reasonably enforce modeling as a standard for skydiving, but you can reasonably enforce uniformity of appearance at school functions.

                    • Jeremy,

                      You’ve succeeded in explaining why the waiver model doesn’t fit… but that doesn’t help the car wash analogy.

                      I don’t see valid logic in getting rid of the skydiving analogy. In both, there’s a contract to waive certain rights. For Ramer, is was the right to dress how she chose.

                      Your reasonable standards argument would make sense if this was a notice of standards. It wasn’t. It was a contract. The school’s failure to enforce their policy of disallowing entry in the contract was not signed does not mean the person who failed to sign the contract is liable as if she had signed the contract. This is just like the skydiving situation. Whether the requirement to sign the contract is reasonable or not is irrelevant.

  7. I had not noted this was a private school previously.

    Freedom of speech, association, and religion are less absolute in this context, but the fact she refused to sign the contract is relevant.

    Regardless of the rights involved, the school has levied draconian controls on its students. Zero tolerance for personal expression and a $1000 fine for a violation. Some states are less vicious toward drunk drivers. Not sure an ethical agreement fits the school’s actions, but they certainly are worthy of some public shame.

  8. How do you know her feathers didn’t offend or exclude anyone? Feathers are every bit as sacred, symbolic, and tribally exclusive as a prayer, IMHO. And now with the exploding story, everyone else in that graduating class now has to live in her shadow. If we are comparing her to Costner, I think the subjectivity of fellow students’ feelings about it shoud be taken into account. It is definitely another bad law; I’m just examining some of the issues you had w Costner that don’t seem to be factors here.

        • And of course I left out the comparison as well that Costner was a keynote speaker, Ramer was just a faceless (although feathered) member of the crowd.

          So their respective actions are also weighted proportionally by the impact on the crowd.

          Say, Ramer did make the agreement not to wear the feather and did so anyway, her action would have been equally wrong from a broken promise standpoint angle, but still not AS bad based on the quantity of people impacted.

          Or is that flawe ethical thinking? I’m not sure now as I type it.

  9. I will never understand why everyone has to make a statement. Just don’t wear the feather. Problem solved. Express ethnic pride at another time. Unless the rules are oppressive, follow the rules.

    • Repressing ethnic pride in this case could be considered oppressive. And there are many reasons not to follow rules, Bet you could think of a few more.

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