Dispatches from the Creation Wars

The ACLU and Attorney’s Fees

Steven Voigt, writing at RenewAmerica, is complaining about the ACLU being able to collect legal fees when they win a suit against a government agency (you may remember Voigt from my earlier fisking of his terrible 14th amendment arguments). This is nothing new, of course; innumerable voices on the right have been complaining about this for years. Funny, though, they never mention it if the Alliance Defense Fund, the Christian Legal Society, the American Center for Law and Justice or any other religious right legal group does the same thing. When the ACLU successfully sued on behalf of Lamb’s Chapel and were awarded reasonable legal fees, we didn’t hear a word. I guess it’s all just a matter of whose ox is being gored. Along the way, Voigt makes a lot of blatantly false claims on the subject. He writes:

The ACLU’s recent lawsuit against Dover Area School District in Pennsylvania, where the ACLU opposed Dover’s effort to balance its science curriculum with different viewpoints on evolution, is over for the ACLU. For local residents, however, the impact of the litigation has only begun. As a result of the judge’s ruling in favor of the plaintiffs–who were represented by the ACLU, Americans United for Separation of Church and State (“AUSCS”), and a corporate law firm–Dover Township residents will pay $1 million in attorneys’ fees and costs to the plaintiffs’ lawyers.

From the million dollar purse, the two legal organizations and the law firm will first deduct their out-of-pocket expenses, and then the ACLU and the AUSCS will split the remainder as fees, and these fees represent the bulk of the cash.

This is pretty much all false. There were three groups involved, that’s true – the ACLU, AU and the Pepper Hamilton law firm. And $1 million sounds like a lot, until you consider that Pepper Hamilton had 5 attorneys assigned to the case, two of them full partners, plus a number of paralegals, administrative assistants and so forth. The ACLU had one attorney on the case, and AU had two attorneys on it. The hourly billing rate for those attorneys was, bare minimum, $150 an hour and for the partners probably more like $500 an hour.

Will they actually be paid that much for this case? Of course not. But for the 5 Pepper Hamilton attorneys, every hour they spent working on that case was one less hour they could spend working on a case for a paying client (not true for the other attorneys, who are likely paid a salary and don’t bill by the hour). The cost to the law firm in terms of billable hours is enormous. The case took almost exactly one year from the date it was filed to the date the ruling came down.

Taking just the Pepper Hamilton attorneys and assuming an average of $250 per billable hour, if they each worked 40 hours a week that would be $2.6 million in the course of the year. Now, they didn’t all work 40 hours a week the whole time on the case, but some of them did, and some of them ended up some weeks working far more than 40 hours. Even if they averaged only half of that, that’s $1.3 million just in billable hours that the law firm gave up in order to take the case. And I can tell you that Pepper Hamilton paid for a lot more than just the cost of those attorneys. They also paid nearly all of the massive logistical costs.

Think for a moment about some of the ancillary costs involved in preparing such a massive legal effort. The plaintiffs side had 7 expert witnesses. All of them had to prepare an expert report and comment on the reports from the experts on the other side. All of those reports had to be read and annotated, along with all the expert reports from the other side. All of the defense experts had to be deposed at the expense of the plaintiffs, and that expense is significant – they have to pay the travel costs either of the expert or the legal staff and pay for a court reporter as well (which is pretty expensive).

The technology involved in the case was state-of-the-art as well, and that’s expensive to set up and maintain. There were literally hundreds of exhibits in the case, all of which were digitized and put into a database so they could be pulled up in court on demand. They had to pay an IT person to be in the courtroom every minute of the trial to operate that system, plus who knows how many people to build the database.

Add to that the cost of office space, furniture and equipment for this huge staff of attorneys and paralegals. Add to it all of the lodging, travel and other expenses of all the witnesses that testified for our side. They may also have paid those expenses for all of the unpaid consultants on the case like Nick Matzke (I’m not sure if that’s the case). Add all of that up and the actual legal bill for the case was over $2.5 million. They were awarded $1 million, or less than 40% of the total.

Which means that even with what was awarded in legal fees, they won’t even cover the expenses involved for any of the three organizations involved. Pepper Hamilton will almost surely end up writing off a good deal of their expense on it, and that’s fine. No need to feel sorry for them, large firms set aside an annual budget for pro bono work. But bear in mind that they also risked not getting any of those expenses reimbursed at all. They could have lost millions on the case; the only reason they didn’t is because their case was strong.

Likewise for the ACLU and the AU. Demagogues like Voigt make it sound as though they’re getting rich and using cases like this to “build up a war chest” for their “battle against Christianity”. In fact, such cases cost them money no matter how much they might get back in legal fees. I guarantee that even with the small portion of the legal fees they are awarded every year (most of those awards go to the law firms that handle the case) they are a net loser, and probably a significant one, for the ACLU financially. They are able to do it only through donations from individuals and foundations.

Of course, Dover taxpayers also had to pay the fees for the attorneys for the defendant, Dover Area School District, as well.

False. The Thomas More Law Center handled the case for them for free. Voigt could have found that out with a simple Google search, for crying out loud. Then again, does he really care about accuracy? He has a myth to sell here; truth is irrelevant.

If this seems out of the ordinary, it is. In nearly all lawsuits, litigants pay only the fees for their own attorneys, regardless who prevails. This is known as the “American Rule.” One exception to the American Rule is where the plaintiffs’ attorneys recover their fees from the defendant under a fee shifting statute, 42 U.S.C. §1988, which Congress ratified in 1976.

The ACLU and like-minded groups have abused 42 U.S.C. §1988 to perpetuate endless lawsuits, such as the Dover lawsuit, against religion.

Ah, this is what I love about the attempts by ID advocates to claim that ID is not religion – their followers always spill the beans. Here Voigt admits that the Dover case was a case “against religion”; I’m sure the DI would rather he say “against the robust research program of intelligent design theory”, but you see, Voigt has been listening to the wrong DI face and he’s not quite up to speed on the preferred terminology.

Using this statute, the ACLU has been accumulating a war chest of cash to fund ongoing and future attacks against communities and schools that display crosses, post the Ten Commandments, set up nativity scenes, permit moments of silence, or allow public prayer. In the crosshairs of the barrage of litigation are groups such as the Boy Scouts of America and the American Legion–but also tiny libraries, schools, and small municipalities that are typically funded by local taxes and do not have the resources to fend off the high-priced lawyers who sweep in on behalf of the ACLU and similar left-wing groups.

As noted above, this notion that they use such cases to “accumulate a war chest” is absurd. First, they only get any award at all when they win a case. If the case is settled, as most are, they get nothing. And most of those awards go to the law firms that volunteer to take the case. The ACLU, in the end, almost certainly loses money on such litigation.

Now this is where Voigt goes pretty much completely off the deep end. He argues that 42 U.S.C. 1988 should apply only in cases involving racial discrimination. His reasoning is highly absurd and factually incorrect:

The ACLU’s and the AUSCS’s use of 42 U.S.C. §1988 to reap their attorneys’ fees from defendants in religion lawsuits is certainly creative. Actually, however, lawmakers never intended, or anticipated, that the statute would be used in this way.

42 U.S.C. §1988 followed the landmark Civil Rights Act, ratified in 1964, which Congress passed to combat racial injustice. The 1964 Civil Rights Act included limited legal remedies, which primarily consisted of injunctive relief–i.e., a court order that the particular conduct must cease.

Twelve years after the Civil Rights Act, Congress ratified and the president signed into law 42 U.S.C. §1988. This statute strengthened the remedies available under the 1964 Civil Rights Act and, among other things, provided judges with the discretion to award attorneys’ fees to plaintiffs who prevail with civil rights claims. With this statute, Congress empowered low-income individuals who are more likely to suffer from discrimination with the means to obtain quality legal representation, because it provided additional pecuniary incentives for lawyers to accept meritorious cases….

Because 42 U.S.C. § 1988 followed and strengthened the Civil Rights Act of 1964, to understand lawmakers’ intent behind this legislation, we must look to the 1964 act. Upon doing so, the purpose of the statute becomes clear. Congress and the president intended for such civil rights legislation to combat racial discrimination.

This is an incredibly easy claim to disprove. All one has to do is look at the actual text of 42 U.S.C. 1988. It says:

In any action or proceeding to enforce a provision of sections 1981, 1981a, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], the Religious Freedom Restoration Act of 1993 [42 U.S.C. 2000bb et seq.], the Religious Land Use and Institutionalized Persons Act of 2000 [42 U.S.C. 2000cc et seq.], title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq.], or section 13981 of this title, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity such officer shall not be held liable for any costs, including attorney’s fees, unless such action was clearly in excess of such officer’s jurisdiction.

Do you notice anything about that text? How about the fact that it specifically mentions that it applies not only to the 1964 Civil Rights Act – the one that focused primarily on racial discrimination – but also to several statutes regarding
religious freedom. In fact, if you look at the whole history of modifications of that particular chapter of the US Code regarding the Civil Rights Act, you’ll see that it includes multiple statutes passed by Congress that specifically involved religion cases against the government as well as many provisions that had nothing to do with ending racial discrimination. Voigt is simply wrong when he claims that because this statute modified the Civil Rights Act that therefore it applies only to racial discrimination cases – and the truth is right there in the text of the statute he’s discussing.

Equally as important is the fact that this statute is a good idea. The only reason that people like Voigt don’t like it is because it is used in cases they disagree with. As noted above, you never hear them complain when the same law allows the ADF or the ACLJ to collect legal fees in cases they win. And the important thing to bear in mind here is that this only happens if they win – only if the government is found to have overstepped its constitutional boundaries do they even get a mimimal award to cover the expenses they incurred in taking such a case.

And if the government has acted unconstitutionally, why should the folks trying to stop them have to bear the costs of making them stop? That cost should be borne by the government. This provides a crucial check on abuse, as the Supreme Court noted in Owen v City of Independence:

The knowledge that a municipality will be liable for all of its injurious conduct, whether committed in good faith or not, should create an incentive for officials who may harbor doubts about the lawfulness of their intended actions to err on the side of protecting citizens’ constitutional rights…. [Since] it is the public at large which enjoys the benefits of the government’s activities, and it is the public at large which is ultimately responsible for its administration…it is fairer to allocate any resulting financial loss to the inevitable costs of government borne by all the taxpayers, than to allow its impact to be felt solely by those whose rights…have been violated.

But the only time we hear complaints is when their side loses a case. When, for example, a school district unconstitutionally refuses to rent their facilities to a religious group, as it did in Lamb’s Chapel, why should Lamb’s Chapel have had to pay the millions of dollars it took to fight that case all the way to the Supreme Court and get a ruling that struck down the school’s policy? Removing such cases from the reversal of fees policy would make it prohibitively expensive for anyone to challenge any government agency when they are acting in an unconstitutional manner. And people like Voigt should keep in mind that such cases often cut the other way as well.

Comments

  1. #1 John Cercone
    April 22, 2006

    I think it is interesting that many of those who claim that it is wrong for the loser to pay in these kind of cases, are the same people who advocate for a loser pays system as a way of discouraging frivolous torts.

  2. #2 Bill Ware
    April 22, 2006

    I see the ADF is at it again.

    “Three Pennsylvania high school students backed by a conservative legal group have sued their school district, claiming they were prevented from quoting Biblical verses in school and expressing opposition to homosexuality, their lawyers said on Friday.

    “In their lawsuit, the students say they believe homosexuality is a sin and that they have the right to speak out about “the harmful effects of homosexuality.”

    “The students … are being represented by the Alliance Defense Fund, which argues their free-speech rights have been violated.”

    Why sure, every student should have the right to harass and intimidate fellow students who are gay. It’s right there in the constitution, isn’t it?

  3. #3 Ed Brayton
    April 22, 2006

    Bill-

    Depending on the details of the case, I might agree with the ADF on that one. The article is fairly vague about what the school’s rules actually say, but if they allow other student groups to put up posters with any sort of political or controversial statements on them, then they are going to have a difficult time justifying why that poster can be prohibited (again, depending on the details of what the poster says).

    I don’t think it does us any good to equate expressing an opinion with harrassment and intimidation, any more than I buy into the school’s argument that suppressing an opinion is important to “prevent discrimination”. It’s the same excuse used when someone says that criticizing the violent tendencies of radical Islam amounts to harrassment or discrimination against Muslims. Having someone say that homosexuality is a sin does not “discriminate” against gays, nor is is legitimatly considered harrassment. It’s merely a statement of opinion and the proper response is to counter that opinion with one’s own, and with the facts that document that the first opinion is wrong. Now, if the poster says, “Gays shouldn’t be allowed to go to school here, we should make them understand that they’re not welcome” – okay, that’s actionable. But if it merely expresses the argument that homosexuality is a sin, there’s no objective reason to disallow it.

  4. #4 mark
    April 22, 2006

    The local papers, letters to the editor, were full of suggestions of who should pay–the plaintiffs, the ex-School board members, Thomas More Law Center, ACLU, Buckingham, and others. Those writers were just as unreasoned as Steven Voigt, whose journalism is too bad to be written off as merely sloppy–it’s more likely he’s just a bald-assed liar.

  5. #5 mw66
    April 22, 2006

    I’m really getting tired of these weasels trying to claim that teaching ID is an attempt to “balance the science curriculum with different viewpoints on evolution.” That’s like wanting to teach Holocaust denial, and saying you’re trying to “balance the history curriculum with different viewpoints on the Nazis.”

  6. #6 Sheila
    April 22, 2006

    There is a concerted effort by some of the wingnuttiest Congressmen to mislead people about the attorney’s fee issue. In April, my Indianapolis Star column was a response to Indiana’s own contributor to this misinformation. I said there:

    John Hostettler, the always entertaining Congressman from Indiana’s Eighth District, is again promoting legislation to repeal what he calls a “loophole” in the law. That “loophole” allows recovery of reasonable legal fees by people who successfully sue government for violating their religious liberties. Hostettler calls his bill “anti-ACLU” legislation–as though the First Amendment and the ACLU would both disappear if fees weren’t available.

    Using the language of victimization that Christians on the far right are increasingly employing, the bill’s supporters describe the measure as necessary to “protect religious liberty.”

    Hostettler and his cohorts conveniently ignore a few not-so-minor points. The omissions strongly suggest that what they really want is a country where the government gets to decide whose religion is acceptable. (They seem to take for granted that government will choose theirs.) After all, the fees they want to eliminate are only awarded to “prevailing parties,” that is, to people who have won their lawsuits by proving in court that the government broke its own rules, overstepped its bounds and violated their rights.

    There are several reasons for the laws that allow citizens to recover their attorney fees when they successfully sue the government for civil rights violations. A civil rights action is different from an action between private parties. In a private lawsuit, if you win, you can make the other guy compensate you for whatever damage he caused. In a civil rights suit, a plaintiff who wins doesn’t necessarily even get compensated for whatever harm he has suffered. Sometimes, he doesn’t get anything but a promise by the government agency to stop doing something illegal. But his willingness to hold government responsible is an important tool of public accountability.

    If citizens have no real remedy when government misbehaves, government will misbehave. The Bill of Rights and other civil rights laws aren’t self-enforcing. They are worthless on a dusty shelf in someone’s law library–it takes legal action to make the Establishment Clause or Free Exercise Clause real. And the people who need protection from government are rarely the rich; they are often people who could never afford an attorney on their own.

    It’s hard enough to find a lawyer willing to fight city hall “on contingency” when there is the hope of being paid if they win. Ironically, if fee recovery were eliminated, the only lawyers who would ever bring these cases–other than those hired by the wealthy–would be public interest law firms like the ACLU, which gets most of its support from private donations, or groups like the American Center for Law and Justice, affiliated with Pat Robertson’s Christian Coalition.

    Fee reimbursement laws weren’t passed to benefit lawyers, or the ACLU or the ACLJ–they were passed to help their clients. Congress recognized that government is more likely to run roughshod over the rights of the “little guy,” than it is to mess around with the well-to-do and privileged. The fee statutes level the playing field by allowing us all to keep government in line.

  7. #7 vobine
    April 22, 2006

    Just curious: was it aclU or aclJ that recovered fees in the Lamb’s Chapel case?

  8. #8 Ed Brayton
    April 22, 2006

    vobine:

    The ACLJ represented Lamb’s Chapel and collected the legal fees, as they should have. The ACLU filed an amicus curiae brief on behalf of Lamb’s Chapel, but at their own expense and only because they agreed with their position in the case.

  9. #9 Bill Ware
    April 22, 2006

    Ed,

    Respecfully, there’s a world of difference between public schools and the public square when it comes to how “free” speech is.

    The state requires children to leave the safety of their homes and the guardianship of their parents to attend school. In return, the teachers and school administrators assume a responsibility in loco parentis for the health and welfare of these children beyond just the formal requirement of providing them with an education.

    If a child becomes ill, for example, the school informs the parent, of course, but must see that the child gets emergency treatment, if required, until the parent gets there.

    From a LA Times article about a boy wearing a “Homosexuality is Shameful” t-shirt, “[Judge] Reinhardt cited a study showing that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school.”

    Children are more sensitive and vulnerable to criticism than we would expect adults to be. Protecting children from physical harm alone is not sufficient. As this report shows, psychological harm can be devastating. Gay teens have higher rates of suicide and other psychological difficulties. Fortunately, these rates have subsided since the Safe Schools and anti-bullying programs were initiated in the mid 1990′s.

    A parent can protect a child from the harm our local street preacher holding a “homosexuality is shameful” sign might do by avoiding the corner of Clinton and McClain or by immediately reassuring the child to the contrary. The school performs this “parent” function by not allowing a “homosexuality is shameful” T-shirt in a place where attendance is mandatory.

    Judge Reinhardt made it clear that this restriction to free speech would not apply to colleges where the students have the status of adults who can fend for themselves. In high schools and elementary schools, however, the teachers and school administrators must take on the role of the parent and protect these vulnerable children from anti-gay and other harassment.

  10. #10 Bill Ware
    April 22, 2006

    Ed,

    Respectfully, there’s a major distinction between public schools and the public square.

    The state requires children to leave the safety of their homes and the guardianship of their parents to attend school. In return, the teachers and school administrators assume a responsibility in loco parentis for the health and welfare of these children beyond just the formal requirement of providing them with an education.

    If a child becomes ill, for example, the school informs the parent, of course, but must see that the child gets emergency treatment, if required, until the parent gets there.

    From a LA Times article about a boy wearing a “Homosexuality is Shameful” t-shirt, “[Judge] Reinhardt cited a study showing that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school.”

    Children are more sensitive and vulnerable to criticism than we would expect adults to be. Protecting children from physical harm alone is not sufficient. As this report shows, psychological harm can be devastating. Gay teens have higher rates of suicide and other psychological difficulties. Fortunately, these rates have subsided since the Safe Schools and anti-bullying programs were initiated in the mid 1990′s.

    A parent can protect a child from the harm our local street preacher holding a “homosexuality is shameful” sign might do by avoiding the corner of Clinton and McClain or by immediately reassuring the child to the contrary. The school performs this “parent” function by not allowing a “homosexuality is shameful” T-shirt in a place where attendance is mandatory.

    Judge Reinhardt made it clear that this restriction to free speech would not apply to colleges where the students have the status of adults who can fend for themselves. In high schools and elementary schools, however, the teachers and school administrators must take on the role of the parent and protect these vulnerable children from anti-gay and other harassment.

  11. #11 steve s
    April 22, 2006

    An attorney for the Thomas Moore Tard Center has a letter in the current issue of Harper’s complaining about Dover being anti-religion. IDK if you can find it online.

  12. #12 Ed Brayton
    April 22, 2006

    Bill Ware wrote:

    Respectfully, there’s a major distinction between public schools and the public square.

    In some ways, yes. But students do not give up their first amendment rights when they enter the school. Indeed, the fact that the schools are government-run and funded means that the first amendment applies as well as it possibly can. And in general, the courts have ruled that students are free to express their opinions so long as those opinions do not threaten an immediate breach of the peace that would disrupt the school. And the standards for it are pretty tough.

    From a LA Times article about a boy wearing a “Homosexuality is Shameful” t-shirt, “[Judge] Reinhardt cited a study showing that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school.”

    Ironically, I have a post that will be going up tomorrow morning (it’s not quite finished yet) about that very case. Reinhardt’s ruling in the case is, in my view, clearly wrong, and Kozinski’s dissent is spot on. And that conclusion by Reinhardt is perhaps the weakest argument in the entire ruling. It conflates disagreement with discrimination. The fact that another student thinks and says that homosexuality is wrong is not discriminatory. If the school said that gays can’t participate in extra-curricular activities, that would be discrimination. Having someone tell them, whether in person or on the back of a t-shirt, that they think homosexuality is a sin is not discrimination, nor is it “harrassment”. Obviously, I think that student is wrong in his opinion, but he has every right to be wrong and the school cannot force him to not express an opinion that they think is wrong – any more than they could force him not to express a pro-gay opinion if they thought that opinion was wrong. The only limitation on that is the one announced in Tinker, which says that if such expression is an immediate threat to disrupt the educational activity of the school then the school can regulate it. But in that case, the argument for disruption was completely non-existent. The student wore the t-shirt for an entire day without anyone even noticing.

    Children are more sensitive and vulnerable to criticism than we would expect adults to be. Protecting children from physical harm alone is not sufficient. As this report shows, psychological harm can be devastating. Gay teens have higher rates of suicide and other psychological difficulties. Fortunately, these rates have subsided since the Safe Schools and anti-bullying programs were initiated in the mid 1990′s.

    And I’m all for anti-bullying programs, and I’m all for gay-straight clubs, and I’m all for those teachers putting up signs declaring their room to be a safe zone for gay teens. In fact, as I wrote about a few months ago, it made me very happy to see those signs when I was in East Grand Rapids high school last fall. I think that’s extremely valuable, even necessary, for creating a healthier atmosphere for gay students. But there is a difference between protecting kids from harrassment or bullying and protecting them from contrary ideas or disapproval. If a student targets a specific kid because he thinks they’re gay and harrasses them constantly, calls him names or bullies him, schools absolutely should step in. But a student wearing a shirt that says homosexuality is a sin is not something the school has the legal authority to stop, any more than they could stop a kid from having a conversation about it with a friend.

    Judge Reinhardt made it clear that this restriction to free speech would not apply to colleges where the students have the status of adults who can fend for themselves. In high schools and elementary schools, however, the teachers and school administrators must take on the role of the parent and protect these vulnerable children from anti-gay and other harassment.

    But then why can’t other parents make the same argument on the other side, that the school should protect their child from being exposed to pro-gay messages? From their perspective, their child is being bombarded with pro-gay messages and undermining the morality they’re trying to teach. Now, I think schools are entirely justified in doing what it can to protect gay kids from real harrassment, but they cannot do that by taking away anyone else’s right to express any disagreement.

    You know that I am as pro-gay rights as anyone. I am a staunch advocate of what the right calls the “gay agenda” and nothing is ever going to stop me from speaking out loudly and strongly for the dignity and legal equality of gays and lesbians. But I do not believe that anyone, gays included, have a “right” to be protected from exposure to criticism. Those who disapprove of homosexuality have the right to believe what they believe and to express that belief. In fact, it’s important to say this – they have the exact same right to express those beliefs as I have to express my belief that they are wrong. What they do not have the right to do is to deny gays the equal protection of the law, and on that front I will fight them tooth and nail. But I cannot censor their right to express their opinions, no matter how vile I may find them. I can’t do that because my right to express my opinions depends upon the unalienable nature of those rights. If I deny that to them, I put my own at risk and I violate my principles; I cannot do that, even when I hate the opinion being expressed. The proper response to those opinions is to denounce them, argue with them, prove them wrong, but not to prohibit them.

  13. #13 Soldats
    April 23, 2006

    I find it hard to believe children can have any sort of amendment based rights at all considering that they are minors. That is why we have a compeltely seperate legal system for them, including juvenile courts and detention centers. In the case of wearing T-shirts to school with messages on them, you could would view it as their parents expressing their opinions on a free billboard provided upon the body of their children, which would be protected, but again that is a problematic view at best.
    The Supremes opened up this whole can of worms by contending that children in school have partial first amendment rights, but not complete ones due to them not being adults and this is the fallout where they will need to keep making the rules as time goes on because they failed in making a proper yes or no decision in the first place. The law of unintended consequences bites the courts in the ass again.

  14. #14 Bill Ware
    April 23, 2006

    Ed,

    Well, I’m glad we have something to disagree about. I was becoming concerned! ;-)

    You mention that speech in high school should be allowed, as court cases have indicated, as long as the speech is not “disruptive” or there is no chance that it will lead to physical harm.

    My contention is that potential psychological harm is also an important consideration. Studies that show that gay teens suffer more from depression and are more likely to engage in alcohol and drug abuse and other self destructive behaviors including suicide have to be taken into consideration as Judge Reinhardt has done.

    Therapists spend lots of time undoing the damage that unkind words can do to young teens. Better not to allow this psychological harm in the first place. Children need protection from verbal as well as physical abuse.

    While it’s generally true that the best answer to speech we don’t like is to counter with more free speech of our own, judges can’t just let the matter drop and suggest that, in most cases, the other students will successfully deal with the “problem.” They have to take into account situations like here in rural East Tennessee where few other students if any are likely to call these anti-gay attitudes into question.

    The law has to deal with the worst cases, not just hope that in most cases the situation will take care of itself.

    Best regards, Bill

    NB: My complete post about the Downingtown law suit is at my blog. Please click on my name below. Thanks

  15. #15 Ed Brayton
    April 23, 2006

    Bill Ware wrote:

    My contention is that potential psychological harm is also an important consideration. Studies that show that gay teens suffer more from depression and are more likely to engage in alcohol and drug abuse and other self destructive behaviors including suicide have to be taken into consideration as Judge Reinhardt has done.

    Therapists spend lots of time undoing the damage that unkind words can do to young teens. Better not to allow this psychological harm in the first place. Children need protection from verbal as well as physical abuse.

    But we can’t pass a law that says no one can say anything to any young person that might make them feel bad about themselves. The number of things that might make a teenager feel bad about themselves is endless. I heard plenty of them growing up and I’m sure you did too. We ended up okay. I don’t think we do teenagers any favors by trying to protect them from anything hurtful someone might say. More importantly, the Constitution simply doesn’t allow it.

  16. #16 Joe
    September 20, 2006

    Actually, the Pepper, Hamilton lawyers donated their time. They only billed for expenses:

    http://www.ncseweb.org/resources/news/2006/PA/162_intelligent_design_costs_dov_2_24_2006.asp

    “According to documents filed with the court, the legal team’s fees and expenses actually total $2,067,226, but Pepper Hamilton LLP, the private law firm that devoted substantial resources to the case pro bono, agreed to charge only for its expenses.”

  17. #17 Coin
    September 20, 2006

    Something I begin to absently wonder, looking at Bill Ware’s post near the top of this thread: Has anybody ever sat down and worked out what the respective “success” rates of the various groups like the ACLU, EFF, ADF, ACLJ, ASCS, etc are? Like, how many suits end in a successful judgement vs an unsuccessful judgement vs a favorable or unfavorable settlement. I would be very curious to see how these different groups compare to one another in efficacy.

  18. #18 kehrsam
    September 20, 2006

    Coin: Even if we had better data, it would be almost impossible to tell, given that the vast majority of suits are settled. Also, relatively few suits are taken by the major players that they think are close calls.

    So most of these groups are only taking 75% or better winners to begin with, and then many of the settlements are not public, so, who’s to say. Just my opinion, but the ACLU and Thomas More take more borderline cases than the others, so they probably show a lower success rate. But this doesn’t mean that they are not doing a good job, just that they chose to push uphill more frequently.

    If any of these groups were being absolutely wiped out, their funding would dry up pretty quick.

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