The pending case, Brandt v. Board of Education, is not much of a case, but it deals with a recurring constitutional question, and it drew an absolutely delightful opinion from Judge Richard Posner in the 7th Circuit. Enjoy.
At the time this brouhaha began, the Beaubien Elementary School in Chicago housed 99 students in its eighth grade. Of these, 27 were enrolled in a special curriculum for academically gifted children. They were known, naturally, as the "gifties." The other 72 were known as the "tards," short for "retards."
In February 2003, the class conducted an election to choose a class T-shirt. The tards submitted 29 designs. The gifties ganged up and submitted only one — a goofy figure, wholly inoffensive, the work of young Michael Brandt. These budding politicians figured that the vote would be so divided that their single-shot candidate would be a sure thing.
But this election was a Chicago election. When the votes were tallied, the outcome was curiously deemed "too close to call." The presiding teacher refused to disclose the tally. A second referendum was held among the top three candidates. Goofy naturally lost.
A "crisis intervention team," like a good Greek chorus, sided with the gifties. Still sore, the students sued the city anyhow. The city won. The students lost. They appealed to the 7th Circuit. The students lost again. Now their appeal is pending in the Supreme Court, where it surely will be soon declined without a single murmur.
In his opinion eight months ago, Judge Posner spoke for a unanimous three-judge panel: The complaining gifties, he observed, had won all they deserved to win: They ultimately had been permitted to wear their own goofy shirt; they had been graduated without incident years ago; their motion for an injunction was therefore moot.
Turning to the First Amendment issues, Posner agreed that political speech may be printed on clothing. Lady Godiva, indeed, had conveyed a political message by wearing no clothing at all.
"But the picture and the few words imprinted on the Brandt T-shirt are no more expressive of an idea or opinion that the First Amendment might be thought to protect than a young child's talentless infantile drawing which Brandt's design successfully mimics. ...
"The protesters in this case are privileged schoolchildren in a school that contains a majority of nonprivileged children. They insist that unless their T-shirt is adopted by the entire eighth grade, they will as it were secede, and flaunt their own T-shirt. They do not recognize the principal's authority or the legitimacy of the school's procedure."
Posner was doubtful that eighth-grade pupils have any rights under the First Amendment, but in the case at hand they were asserting something less than a right to free speech: They were asserting a right to an explanation of the vote count.
"We do not think eighth-graders have such a right. For the school to hold an election and rig the results, as the plaintiffs suspect happened, is probably not a recommended educational practice, but it is not an infringement of any legal right."
Posner's sound decision in the Chicago case is bound to revive discussion of Chief Justice Roberts' miserable opinion 15 months ago in Morse v. Alaska, the case from Alaska. In that case, a handful of impudent students made an impudent banner out of their own materials, on their own time, and displayed it on a public street in the midst of a public parade — and the Supreme Court, 5-4, said they could be punished for exercising their First Amendment rights. It was a terrible opinion. In time it will be distinguished into insignificance. With the Chicago case, its time is not quite yet.
(Letters to Mr. Kilpatrick should be sent by email to kilpatjj@aol.com.)
