Month: July 2021

Why Is Banning The Teaching Of Critical Race Theory In Schools Ethically Justifiable When Banning The Teaching Of Evolution Is Not?

/ Jack Marshall / 19 Comments

Critical Race ban

On this, the 96th anniversary of the beginning of the Scopes Trial in 1925, let’s consider attorney Clarence Darrow’s opening statement. Here is the crux of it:

“…Along comes somebody who says ‘we have got to believe it as I believe it. It is a crime to know more than I know.’ And they publish a law to inhibit learning. This law says that it shall be a criminal offense to teach in the public schools any account of the origin of man that is in conflict with the divine account in the Bible. It makes the Bible the yardstick to measure every man’s intellect, to measure every man’s intelligence and to measure every man’s learning. Are your mathematics good? Turn to Elijah 1:2. Is your philosophy good? See II Samuel 3. Is your astronomy good? See Genesis 2:7. Is your chemistry good? See – well, chemistry, see Deuteronomy 3:6, or anything that tells about brimstone. Every bit of knowledge that the mind has must be submitted to a religious test. It is a travesty upon language, it is a travesty upon justice, it is a travesty upon the constitution to say that any citizen of Tennessee can be deprived of his rights by a legislative body in the face of the constitution.

“Of course, I used to hear when I was a boy you could lead a horse to water, but you could not make him drink water. I could lead a man to water, but I could not make him drink, either. And you can close your eyes and you won’t see, cannot see, refuse to open your eyes – stick your fingers in your ears and you cannot hear – if you want to. But your life and my life and the life of every American citizen depends after all upon the tolerance and forbearance of his fellow man. If men are not tolerant, if men cannot respect each other’s opinions, if men cannot live and let live, then no man’s life is safe, no man’s life is safe.

“Here is a country made up of Englishmen, Irishmen, Scotch, German, Europeans, Asiatics, Africans, men of every sort and men of every creed and men of every scientific belief. Who is going to begin this sorting out and say, “I shall measure you; I know you are a fool, or worse; I know and I have read a creed telling what I know and I will make people go to Heaven even if they don’t want to go with me. I will make them do it.” Where is the man that is wise enough to do this?

“If today you can take a thing like evolution and make it a crime to teach it in the public school, tomorrow you can make it a crime to teach it in the private school, and the next year you can make it a crime to teach it from the hustings or in the church. At the next session you may ban books and the newspapers. Soon you may set Catholic against Protestant and Protestant against Protestant, and try to foist your own religion upon the minds of men. If you can do one you can do the other. Ignorance and fanaticism are ever busy and need feeding. Always they are feeding and gloating for more. Today it is the public school teachers, tomorrow the private. The next day the preachers and the lecturers, the magazines, the books, the newspapers. After a while, Your Honor, it is the setting of man against man and creed against creed until, with flying banners and beating drums, we are marching backward to the glorious ages of the sixteenth century when bigots lighted torches to burn the men who dared to bring any intelligence and enlightenment and culture to the human mind.“

As mentioned in the post earlier today, the issue of whether a state could ban the teaching of evolution was never settled in Scopes, but many years later in the Supreme Court case of Epperson v. Arkansas (1968), which struck down a state law that criminalized the teaching of evolution in public schools. Epperson, however, was narrowly decided on the basis that the First Amendment to the United States Constitution prohibits a state from requiring, in the words of the majority opinion, “that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma.” It was not based on freedom of speech, or as Darrow termed it, “freedom of thought.” The Theory of Evolution and “Critical Race Theory” are both theories, though one is based in scientific research and the other is a product of scholarly analysis. Though the latter seems to carry the heft of religious faith in some quarters, freedom of religion is not the issue where banning critical race theory is involved. Nor, realistically speaking, is freedom of speech as Darrow describes it.

School districts, which are agents of the government, have a recognized right to oversee the content of what is taught in the public schools, within reason, and when the purpose is defensible. Teachers are not free to teach whatever they choose, though their controversial choices cannot be made criminal, just grounds for dismissal. The 6th Circuit Court of Appeals made this clear in Evans-Marshall v. Bd of Ed of Tipp City Exempted Village Sch Dist. (6th Cir. 2010), a case involving a high school English teacher who was fired for using classroom assignments and materials without following the appropriate steps for approval. The court stated, “Even to the extent academic freedom, as a constitutional rule, could somehow apply to primary and secondary schools, that does not insulate a teacher’s curricular and pedagogical choices from the school board’s oversight.”

School districts still can’t define a curriculum so narrowly that it violates students’ constitutional rights. In Board of Island Trees v. Pico (U.S. 1982), the U.S. Supreme Court held that the school district could not remove books from the school library without a legitimate pedagogical reason, because doing so violated students’ free speech rights of access to information.  Districts and schools are also limited to what they can require children to study, though most cases in this realm again involve religion. However, once school districts and schools have defined a legally permissible curriculum, courts will give them broad discretion to implement it even over community and parental objections. For example:

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Ethics Quote Of The Month: Andrew Sullivan

/ Jack Marshall / 10 Comments

CRT2

“[T]he sudden, rapid, stunning shift in the belief system of the American elites…has sent the whole society into a profound cultural dislocation. It is, in essence, an ongoing moral panic against the specter of “white supremacy,” which is now bizarrely regarded as an accurate description of the largest, freest, most successful multiracial democracy in human history.”

—-Blogging pioneer Andrew Sullivan, yet another exile at substack, in his eloquent, brave, important and accurate essay, “What Happened To You?”

That’s probably not the best ethics quote in Sullivan’s latest essay. It’s just the earliest. There is also this bitter truth, as Sullivan’s brief approaches it’s climax:

“Look how far the left’s war on liberalism has gone. Due process? If you’re a male on campus, gone. Privacy? Stripped away — by anonymous rape accusations, exposure of private emails, violence against people’s private homes, screaming at folks in restaurants, sordid exposés of sexual encounters, eagerly published by woke mags. Non-violence? Exceptions are available if you want to “punch a fascist.” Free speech? Only if you don’t mind being fired and ostracized as a righteous consequence. Free association? You’ve got to be kidding. Religious freedom? Illegitimate bigotry. Equality? Only group equity counts now, and individuals of the wrong identity can and must be discriminated against. Color-blindness? Another word for racism. Mercy? Not for oppressors. Intent? Irrelevant. Objectivity? A racist lie. Science? A manifestation of white supremacy. Biological sex? Replaced by socially constructed gender so that women have penises and men have periods. The rule of law? Not for migrants or looters. Borders? Racist. Viewpoint diversity? A form of violence against the oppressed.” 

I hate to drop spoilers with a master essay like Sullivan’s but I know a lot of people don’t follow links, and attention, as Willy Loman’s wife said, must be paid. Sullivan writes like an angel, so I quote him in fond hopes that readers will allow his persuasive prose to unfold as he designed it. Andrew begins by writing,

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Dress Code Ethics (Again) From The “Oh, Come ON!” Files: The Immodest Fitness Model

/ Jack Marshall / 9 Comments

bodybuilder-1

Two days ago, American Airlines denied boarding for Deniz Saypinar, a Turkish-born fitness model traveling from Dallas-Fort Worth to Miami because, the carrier explained to her, its conditions of carriage require all customers to dress “appropriately,” and her outfit wasn’t appropriate.

Ya think? That photo above shows how she presented herself at the gate.

“The customer was advised of our policy and was rebooked on a subsequent flight. The customer has since arrived in Miami,” the airline’s rep said.

Deniz is in great shape; I wonder why, if she was going to grandstand like this, she didn’t just wear a g-string and pasties and go all the way with it. I do not believe for a second that she expected to be allowed on the plane dressed like that. She wanted to set off a controversy and win herself Andy Warhol’s 15 minutes of fame, while giving feminists something to shout about.

“You will never believe what happened to me at Texas Airport,” first non-American citizen to win the US National Bikini Fitness Competition in 2021 wailed to her 1 million followers on Instagram as she posted her attire.

Oh yes I will!

“I am an athlete, and now I have to wait here until the morning,” she wrote. “I like to wear feminine clothes that reveal my femininity, but I never dress in a way that will offend anyone. I’m mature and civilized enough to know what I can and cannot wear. I don’t deserve to be treated like the worst person in the world for wearing denim shorts What separates us from animals if humans can’t control even their most primitive impulses? I feel insulted. They wouldn’t let me on the plane because I wore these shorts in the United States.”

Uh, I wouldn’t call that an exactly fair description of what happened. She wasn’t treated “like the worst person in the world,” although she should have been treated as a narcissist and ruthless self-promoter who deliberately wasted the time of airline staff and caused a pointless controversy just to get her name and figure publicized. And she wasn’t rejected as a passenger for “wearing denim shorts.”

” What separates us from animals if humans can’t control even their most primitive impulses? ” has to win an irony award: it is the model who can’t control her primitive impulse to display herself in places where such displays are rude and disruptive. Decorum and manners in public also separate us from animals. Wearing reasonably modest clothing in public is basic civility, showing respect for others.

What do you want to bet that she wears that kind of outfit and then, when some little fat guy stares at her, gets indignant?

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Saturday Morning Ethics Warm-Up, July 10, 2021: Remembering The Unethical And Bizarre”Monkey Trial”

/ Jack Marshall / 6 Comments

Scopes

Ooooh, it’s Clarence Darrow time again, and as I will show in another post shortly, this has serious, and underappreciated current day relevance.

For on this date in Dayton, Tennessee, the so-called Scopes Monkey Trial began in 1925, not only one of the most famous trials in U.S. history, but also one of the most misrepresented, misunderstood and, frankly, silly trials as well. John Thomas Scopes, a young high school science teacher, was accused of teaching evolution in violation of a new Tennessee state law which made it a misdemeanor punishable by fine to “teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a lower order of animals.” Town officials persuaded Scopes to volunteer to get arrested for the offense, not so much to challenge the law but because alocal businessman figured out that it would put Dayton on the map. His plot succeeded beyond his wildest dreams. The American Civil Liberties Unio—-yes, they once cared about the First Amendment—announced it would defend Scopes, and hired an aging but famous Clarence Darrow to do the job, which included making sure his client was convicted, so they could appeal the verdict to the U.S. Supreme Court, where even a monkey judge would know that the Tennessee anti-evolution law was a blatant First Amendment violation.

William Jennings Bryan, the three-time Democratic presidential candidate who was seeking his fourth shot at the White House, volunteered to assist the prosecution in his guise as a fundamentalist Everyman. The Monkey Trial got underway with in-person coverage by renowned cynic H.L. Mencken and hoards of other reporters. Parts of the trial were broadcast nationally over the radio, an all-time first. Preachers set up revival tents along the city’s main street; venders sold Bibles, hot dogs and souvenirs like monkey dolls and fans to tourists. A carnival “exhibit” featuring two chimpanzees and a “missing link” opened in town: the alleged “Monkey Man” was 51-year-old Jo Viens, who was short, had a receding forehead, and whose jaw protruded like an ape. One of the chimpanzees wore a plaid suit, a brown fedora, and white spats, and periodically was allowed to run around on the courthouse lawn.

To recap, the “trial” was based on a contrived “crime” committed with the cooperation of authorities, and the defense was to make sure Scopes was convicted, not acquitted. But things got even more Bizarro World-like. At one point, Scopes told Darrow that a substitute teacher, not him, had actually taught the Darwin class, and Darrow told the teacher to shut the hell up about that rather crucial detail. When Judge John Raulston ruled that expert scientific testimony on evolution would be inadmissible, Darrow decided that his sole expert witness would be Bryan, one of the prosecutors. (No, this had never happened before and has never happened since.). Raulston ordered the trial moved to the courthouse lawn for this spectacle, fearing that the weight of the spectators and reporters inside would cause the courthouse floor to collapse.

Darrow treated Bryan as a hostile witness, though they knew each other, were both political progressives, and were both doing what they loved best, performing in front of a crowd. Popular legend holds that Darrow made a monkey out of Bryan, which was how the famous play (“Inherit the Wind”) based on the trial and its many TV and movie versions portrayed the showdown, but reading the transcript tells a different story. Bryan’s answers were cagey and clever, but he had a big problem: he knew his answers were being broadcast to potential voters who were not fundamentalists, yet he couldn’t afford to alienate the Bible-Beating jury. Darrow had no such dilemma: remember, he wanted to alienate the jury, and knew that if Bryan insisted that the Bible was literally true, “The Great Commoner” would end his political career (though it was almost certainly over anyway.) . Thus Bryan argued, for example, that God explained things in the Bible in ways that could be understood by the people of the time. For example, God obviously knew that the Earth moved around the sun, and not the other way around, but HE just said, in the Bible, that the sun “stopped,” so as not to confuse the faithful.

The weirdness got worse: in his closing speech, Darrow asked the jury to return a verdict of guilty in order that the case might be appealed. I’m pretty sure this is an abuse of process and wildly unethical: isn’t a request to be found guilty indistinguishable from a guilty plea? This tactic did have a mean consequence for poor Bryan: under Tennessee law, the admission of guilt meant Bryan couldn’t deliver the grand closing speech he had been preparing for weeks. It took eight minutes for the jury to return with a guilty verdict—why did Darrow feel he had to ask for a verdict that was pre-ordained, other than to deny Bryan his big finale?— and Raulston ordered Scopes to pay a fine of $100, the minimum the law allowed.

After all of this, the ACLU’s scheme still failed: the Tennessee Supreme Court overturned the Scopes verdict, but on a procedural technicality, so the case never got to the U.S. Supreme Court at all. The constitutional issue was officially unresolved until SCOTUS overturned a similar Arkansas law.

Can you guess why this fiasco has special relevance in 2021?

Watch this space!

A “Bias Makes Professionals Stupid And Unprofessional” Update

/ Jack Marshall / 7 Comments

Trump photo defaced

Perhaps the saddest aspect of the 2016 Post Election Ethics Train Wreck and the resulting mass effort to bring down Donald Trump was the corruption of virtually all of our society’s professions, and the vast majority of their members. Educators, psychiatrists, teachers, judges— journalists, of course, though they were already pretty far gone; broadcasters, of course. Entertainment professionals and performers, heaven knows (That’s the Dixie Chicks and their clever and subtle political commentary above.) In addition to theater professionals, two more of my professions have disgraced themselves: lawyers and ethicists. The listserv of a legal ethics organization I belong to was virtually cackling with joy over Rudy Giuliani’s partisan and dangerous interim suspension in New York, while the same group has been notably unenthusiastic about criticizing out-of court hyperbole by anti-Trump lawyers like the recently sentenced Michael Avenatti. (I may have missed some more balanced attention because I dropped out of the group for about 18 months in disgust over its bias.) Here is a tweet by a conservative attorney that was just offered to the group for comment on whether it raised issues of professional misconduct:

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The Alderman’s Post

/ Jack Marshall / 4 Comments

Hughes-at-his-typewriter

Guest Column by Steve Witherspoon

Recently I was led to the Facebook profile of a local Alder for the City of Madison, WI to leave him a message related to a vote that was cast on an entirely different subject. After I left the message I scrolled through his profile page to read some of the posts. On July 2, 2021 this Alder posted the following statement on Facebook followed by a link to a video that contained the 1936 poem “Let America Be America Again” by Langston Hughes.

The Alderman wrote,

“As I age, I become more aware and misinformed at the same time. I used to celebrate the 4th with fantastical, flag waving, fervor and fireworks. Now, I use it as a day of mourning and reflection.  While our republic is relatively young, the insidious histories of attempted genocide against BIPOC people, here at home, and around the world, forever stains the collective soul of this nation.”

The Hughes poem followed:

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Comment Of The Day: “The Ethics Of The Government’s Planned Door-To-Door Vaccination Campaign”

/ Jack Marshall / 6 Comments

vaccine protest

A nice “Bite me!” Comment of the Day by Demeter on the post, “The Ethics Of The Government’s Planned Door-To-Door Vaccination Campaign”:

I have gotten to date: a phone call, numerous post cards, and a text message, along with emails from my insurance company and… of course, FB announcements. If people are unaware of vaccines, their purpose, safety, etc… a knock on the door likely will not matter. Actually, it makes me want to dig in my heels to NOT do this.

I feel like there’s medical discrimination at play. Never have I ever been convinced to “do the right thing” with lotteries, scholarships for kids, phone calls asking me to schedule an appointment, a postcard, and now door to door. Umm, Fuck you. No.

I was considering it. Now “they” can leave me alone or see me in a courtroom. Translation: You would be better off shutting your stupid mouths and letting me work through the information, IN MY OWN TIME. If I die, I die. It’s my choice. You’re vaccinated so what do you care what I do? Or are they saying they don’t work as claimed? Pick one people, you can’t have both.

Side note: our history is full of amazing and epic scientific breakthroughs of things that turned out not to be safe, that we thought were, and and ended up killing thousands or more. Tell you what, Biden: Go back to the lab (you have a cancer cure so this should be simple!), create an airborne vaccine—I’m sure nothing could possibly go wrong—and you’d get your wish to have everyone vaccinated for the greater good.

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Waning Thursday Ethics Afterthoughts, 7/8/21: Liberty Bell Crack Edition

/ Jack Marshall / 10 Comments

Liberty Bell

The Fourth of July and the Declaration of Independence have taken undeserved (and ignorant) abuse and disrespect this year, so I’ll extend the celebration a bit with the recognition of this date in 1776, when the 2,000-pound copper-and-tin “Liberty Bell” rang out from the tower of the Pennsylvania State House (now known as Independence Hall) in Philadelphia, so citizens could come and hear the first public reading of the Declaration of Independence, and know that their new nation had been conceived. Four days earlier, the Decalarationhad been adopted by the Continental Congress delegates, but the the public reading had to wait until the Declaration of Independence returned from the printer on July 8.

In April 1775, the bell had been rung to announce the battles of Lexington and Concord. After its most famous ringing on July 8, 1776, the British advanced on Philadelphia in the fall of 1777 caused the bell to be removed from the city and hidden to save it from being melted down by the British. After the British defeat in 1781, the bell was returned to Philadelphia, which served as the nation’s capital from 1790 to 1800. It was tolled annually to celebrate George Washington’s birthday on February 22 and the Fourth of July. The name “Liberty Bell” wasn’t used until an 1839 poem about abolishing slavery.

Contrary to public belief, the famous crack in the bell, rendering it useless except as a symbol, did not occur during its most famous swing and ring, but while tolling to mark the funeral of Chief Justice John Marshall, in 1835. Sounding a bit off but still used for another decade, the bell was still used until 1846 when the crack got worse while ringing out to mark George’s birthday that year. It was retired after that.

I learned about the crack when the Disneyland TV show’s “Ballad of Davy Crockett” epic reached the episode accompanied by the verse that went,

He went off to Congress an’ served a spell
Fixin’ up the Govern’ments an’ laws as well
Took over Washin’ton so we heered tell
An’ patched up the crack in the Liberty Bell
Davy, Davy Crockett, seein’ his duty clear!

1. I just noticed that Tom Cruise violated the ethics rules in “The Firm.” In the film of John Grisham’s legal thriller, Tom Cruise’s character Mitch McDeere works mightily to avoid disbarment by solving his dilemma (his firm is a Mafia ally) without violating the Rules of Professional Conduct. But Mitch has already engaged in a serious ethics breach by engaging in the unauthorized practice of law. He gives legal advice [Notice of Correction: I erroneously wrote “ethics advice” by mistake when this was posted.] advice to a big client of his firm before he has passed the Tennessee Bar exam and been sworn in. That’s practicing law, and he can’t do that.

Maybe he hadn’t gotten to that part of the Tennessee Rules of Professional Conduct while he was studying for the exam…

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The Ethics Of The Government’s Planned Door-To-Door Vaccination Campaign [Updated]

/ Jack Marshall / 20 Comments

President Biden has announced that there will be a door-to-door campaign designed to inform people in less-vaccinated sections of the country to encourage getting the shots and to address concerns about the safety and efficacy of the vaccine. Many Republican, conservatives and civil libertarians fell the plan is an abuse of power. “How about don’t knock on my door. You’re not my parents. You’re the government. Make the vaccine available, and let people be free to choose. Why is that concept so hard for the left?” Rep. Dan Crenshaw (R-Texas) tweeted. “The government now wants to go door-to-door to convince you to get an ‘optional’ vaccine,” Rep. Lauren Boebert, (R-Colo)., snarked. Some reactions were a bit more hysterical, such as this from GOP Georgia Rep. Marjorie Taylor Greene:

“Biden pushing a vaccine that is NOT FDA approved shows covid is a political tool used to control people. People have a choice, they don’t need your medical brown shirts showing up at their door ordering vaccinations. You can’t force people to be part of the human experiment.”

But you know…Marjorie Taylor Greene.

Is a representative of the Federal Government coming to your home to try to get you to do something you have chosen not to do or may not want to do an abuse of power? It might be. I have ruled it unethical for uniformed police officers to come to homes seeking contributions to police charities, and indeed this practice has largely been stopped because it was viewed as inherently coercive. A government representative coming to your home to urge you to do anything, from paying taxes to brushing your teeth, may be stressful and feel like the heavy hand of Big Brothers. Moreover, such a visit strongly suggests “We are watching you!”

My guess is that the national public health goal of having as many Americans vaccinated as possible would be seen by most courts as a sufficient justification for this minimal incursion on public privacy, but I also wouldn’t be surprised to see one or more court rule that the government has no business coming to you home to metaphorically twist your arm.

The Ethics Alarms verdict is that door-to-door visits are ethically defensible if…

  • Each home targeted for such a visits gets advance notice of at least 72 hours, and an opportunity to opt out.
  • The government representative begins every visit by handing out a document and reciting it’s contents, which should be something like a Miranda Warning:

Hello, my name is XXXXXXXXXXXXXX, and I am representing the Federal Government in a national effort to encourage the public to be fully vaccinated against the Wuhan virus. You have no obligation to listen to me, invite me into your home, take or read the materials I have for you or to get vaccinated. If you prefer, I will leave immediately. However, I would be grateful if you would allow me to explain why it is important for you and members of your family to get vaccinated, and to answer any questions you might have. If you decline this visit, there will be no penalties or consequences, nor will your decision be noted on any government records.

Update: Upon thinking some more about this, I would want to see this added:

“Furthermore. no benefits or advantages will accrue to any of your neighbors who do not decline to speak with me, allow me into their homes, or accept my materials.”

Absent such warning, any visit by a government employee (or volunteer) is potentially coercive and an abuse of government power.