TUESDAY, JULY 6, 2021
Baker City, Oregon
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OUR VIEW
Release
records
When school offi cials in Malheur County denied
requests to release documents relating to complaints
against school board members, they encouraged the
public to reach their own damaging verdicts.
What is the school board hiding? The appearance
may be much worse than the reality.
Not releasing the documents can undermine public
trust in public schools. It can endanger support for
future school bonds.
And that’s just what is happening with the Ontario
School Board. The Malheur Enterprise requested the
records regarding complaints against school board
members and the resulting investigations. There
were allegations of harassment. One school board
member resigned. Another was censured by the
school board.
Doesn’t the public have a right to know what hap-
pened? Yes. Defi nitely, yes.
The school board denied one records request say-
ing it referred to internal communications. Another
request was rejected to protect personal privacy and
because the school board’s lawyer was involved — at-
torney client privilege.
The exceptions to Oregon’s laws for government
transparency and openness aren’t there to allow
government bodies to cover up what happened. But
that’s how the school board is trying to use them in
Malheur County. The records should be released.
Unsigned editorials are the opinion of the Baker City Herald.
Columns, letters and cartoons on this page express the opinions
of the authors and not necessarily that of the Baker City Herald.
OTHER VIEWS
Editorial from The Dallas Morning News:
When Pennsylvania student Brandi Levy failed to make her
high school’s varsity cheerleading team in 2017, she reacted
with typical teenage melodrama. She cursed school, she cursed
cheer, and she raised her middle finger for good measure.
She did this on a Saturday at a convenience store, and she
posted the rant to Snapchat, where her friends would see it for
a fleeting moment before the post disappeared.
Except her post didn’t go away. The middle finger, the words
and even the emoji made it all the way to the Supreme Court,
immortalized in a ruling that wisely sided with the cheerleader
in a case with ramifications for public schools across America.
The high court said last week that Levy’s school violated her
First Amendment rights by booting her from the junior varsity
cheerleading team over the Snapchat post.
There is nothing to admire about Levy’s profane diatribe.
Her speech is far from the dignified political expression of stu-
dents in 1965 who wore black armbands to school in protest of
the Vietnam War and were suspended — punishment that the
Supreme Court ruled unconstitutional in the landmark Tinker
vs. Des Moines case.
Still, Levy did not name the school or coaches. Her rant did
not spiral into personal attacks or threats that could seriously
harm other people at her school. Anyone who parents a teen
— heck, anyone who’s had a bad day — knows that frustration
can overpower good manners. While schools must regulate
profanity on campus to avoid disruption, it’s unreasonable for
school officials to police kids’ vulgar complaints about school life
24/7. As the Supreme Court noted: “Geographically speaking,
off-campus speech will normally fall within the zone of paren-
tal, rather than school-related, responsibility.”
We appreciate the Supreme Court’s restraint. While it found
that the Mahanoy Area High School District erred in removing
Levy from her team, the justices recognized that schools have
“significant” interests in regulating some off-campus behavior,
such as severe bullying and harassment, threats and the writ-
ing of papers.
Unfortunately, the Supreme Court declined to specify what
all counts as “off-campus speech” and how the First Amend-
ment would apply, but at the very least it walked back the
extreme ruling of the Third Circuit Court of Appeals. Although
that court also sided with the cheerleader, it dangerously de-
clared that the standard set in the Tinker case — that schools
can suppress speech if it materially or substantially interferes
with school operations — does not apply to off-campus speech.
Appeals courts don’t set national legal precedent, but their deci-
sions can influence other courts weighing similar cases.
Beyond Tinker, the Supreme Court has given schools
permission to regulate certain student expression: indecent or
lewd speech on school grounds, speech at school events that
promotes illegal drug use and speech in school-sponsored
newspapers. However, social media remains a minefield for
schools sorting out how much authority they have over student
expression.
We wish the Supreme Court had offered more clarity, but
we’re grateful for the sensible logic that it applied to Levy’s
circumstances. We hope it’ll make schools think twice about
censoring student criticism.
Yes, in some cases, even the foul utterances of a teen deserve
the sacred protection of our First Amendment. We borrow the
words of Justice Stephen Breyer: “...sometimes it is necessary to
protect the superfluous in order to preserve the necessary.”
Your views
Juneteenth is fi ne, but don’t
need another federal day off
I’m OK with celebrating Juneteenth.
But as someone who enjoys history,
particularly the Civil War period, it
seems like there are better days to
celebrate the end of slavery. As one
example, why not the date of passing
the 13th Amendment that provided
freedom for all slaves, not just slaves
in the Confederacy? The Emancipation
Proclamation, although a vital piece of
American history, has always seemed
ironic to me in that it intended to free
slaves in the southern states where
Abraham Lincoln had essentially
no political power but didn’t address
slavery in the states where he was
president.
My gripe about Juneteenth has
nothing to do with history. My gripe
is about the present and future, that
it gives us federal employees another
paid holiday that we don’t need. We
already had 10 paid holidays and that
is extremely generous as anyone in
the workforce knows. Agriculture is
the biggest factor of Baker County’s
economy but how many paid holidays
do farmers and ranchers enjoy? If the
politicians think Juneteenth is worthy
of holiday status, why not trade it
for one of the existing holidays such
as Columbus Day which has become
increasingly unpopular? They should
leave the number of paid holidays at
10, that’s plenty!
When I found out about the 11th
paid holiday, I immediately emailed
Senators Wyden and Merkley, and
Representative Bentz to complain
and suggest the Columbus Day trade.
I have had no response from any of
them to date. (The opinions expressed
are strictly my own. I am not a spokes-
person for the federal government.)
Jim Carnahan
Baker City
Donors should be anonymous
By Stephen L. Carter
The Supreme Court’s decision to
strike down California’s law requiring
disclosure of large donors to registered
charities is bound to be controversial
but seems to me, on balance, correct.
Part of the reason is libertarian: It’s no
business of mine where my neighbors
choose to give money, and it’s no busi-
ness of theirs where I do. The rest of
the reason … well, I’ll get to that.
In Americans for Prosperity Foun-
dation v. Bonta — popularly known
as AFP — two conservative-leaning
groups challenged the California
requirement as violating their rights
under the First Amendment. In a 6-3
opinion by Chief Justice John Roberts,
the court largely agreed. The disclosure
rule, according to the majority, burdens
the right to free association, which is
closely tied to the right to associate
privately. To justify the burden, there
must be “a substantial relation be-
tween the disclosure requirement and
a suffi ciently important governmental
interest” — and, in addition, the dis-
closure must “be narrowly tailored to
the interest it promotes.” A generalized
interest in preventing wrongdoing does
not justify so broad a demand.
The source case for this analysis is
the 1958 decision in NAACP v. Ala-
bama ex rel Patterson, where the court
on similar grounds struck down an Ala-
bama law requiring disclosure of the
NAACP’s membership list. The justices
were rightly worried that, in the heart
of Jim Crow country, members of the
organization would face intimidation
or worse. Thus keeping their names
private was crucial to the ability to
associate.
Justice Sonia Sotomayor’s powerful
dissent in AFP mocks the majority’s no-
tion that NAACP v. Alabama is a con-
trolling case, pointing out that the court
there was concerned about the “repri-
Letters to the editor
• We welcome letters on any issue of
public interest. Customer complaints
about specifi c businesses will not be
printed.
• The Baker City Herald will not
knowingly print false or misleading
claims. However, we cannot verify the
sals and violence” against civil rights
activists that were all too common in
the 1950s. Here, she writes, there’s no
serious prospect that well-shod donors
to conservative activist groups will face
“threats, harassment, or reprisals.”
Sotomayor is largely correct — and
probably as tired as I am of seeing
important civil rights victories hijacked
by the right. Yet the majority also has
a point. NAACP v. Alabama did arise
in the unique circumstance of the
civil rights movement, but the justices
rested the opinion on the First Amend-
ment’s right of free association. The
language was categorical: “Inviolability
of privacy in group association may
in many circumstances be indispens-
able to preservation of freedom of
association, particularly where a group
espouses dissident beliefs.” The court
added that intimidation resulted from
“private community pressures” rather
than state action.
This sort of holding is hard to write
around.
Things might be different if this were
a world in which people were suffi cient-
ly reasonable to accept that the other
side often has a case. But it isn’t. For
a long time, the American right made
a specialty of tearing people down
because of the causes they gave to.
Nowadays a lot of the tearing down is
done by the left. Whoever’s doing it, our
democracy isn’t terribly good at helping
us respect each other across our deep
differences.
Which brings me to my second
reason for agreeing, reluctantly, with
the majority. NAACP v. Alabama arose
under special circumstances, but the
problem is more general. This is not a
world in which civil rights protesters
are routinely fi red from jobs, have their
houses torched, and dragged into the
woods and murdered. It is in a world in
which people try to punish each other
for espousing controversial views. Not
just criticize — punish. That the pun-
ishments are far smaller than those
that led to NAACP v. Alabama doesn’t
mean they’re not punishments.
In this sense, the close link between
the right of public association and the
right to associate privately may be
viewed as a prophylactic approach to
protecting constitutional rights. If the
names of donors must be disclosed,
there are people who won’t give. If this
weren’t true, there would be no reason
for the plaintiffs to litigate the case.
What about downstream effects? At
oral argument, Justice Stephen Breyer
worried that a ruling for the plaintiffs
might eviscerate campaign fi nance
laws, which rest centrally on disclosure
of contributions. But this needn’t be so.
For one thing, as my colleagues Bruce
Ackerman and Ian Ayres have persua-
sively shown, it’s possible to protect
against corruption without disclosure,
through the device of a “secret donation
booth” — a mandate that all campaign
contributions remain secret, even from
the candidate. For another, campaign
giving can be distinguished from other
forms of associational activity, and the
majority is careful to do just that.
Perhaps the decision in AFP is as
dangerous as its critics will say. If so,
I hope they will join me in resisting
efforts to condemn others for the causes
they give to. Otherwise, the majority
will turn out to be right.
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Stephen L. Carter is a Bloomberg
Opinion columnist. He is a professor of
law at Yale University and was a clerk
to U.S. Supreme Court Justice Thurgood
Marshall. His novels include “The
Emperor of Ocean Park,” and his latest
nonfi ction book is “Invisible: The Forgotten
Story of the Black Woman Lawyer Who
Took Down America’s Most Powerful
Mobster.”
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