Testing the Honesty of STACLU, Part 2

Gribbit has responded to my questions. In his response, he admits that he was wrong about the order of the two examples, but misses the larger falsehood in his post. Here's his initial claim, again:

We have seen this already. The ACLU fought to gain equality for after school projects so that a gay tolerance group could meet on school grounds after the school day. The fight went all the way to the United States Supreme Court and they won. Shortly there after, the ACLU sent a letter to all Washington public high schools reminding them of this victory and demanded that they comply. However, when a bible study group in another state attempted to gain the same recognition, the ACLU then asked the Supreme Court to reverse itself. They cannot have it both ways.

He then admits a partial error:

I will admit that I did make an error in my initial statement of this situation yesterday. I stated that the ACLU asked the Supreme Court to reverse a decision that they had won in a previous case. That isn't correct and I apologize.

The truth of the matter is that they opposed the application of the Equal Access Act in the Good News v Milford Central case as well as the initial challenge of the Act's Constitutionality in Westside case in 1985. THEN they used it to strong arm Washington Schools into accepting the gay/lesbian tolerance group.

Now, this isn't actually as bad as it looks. It's not really dishonest, though it is lacking in nuance and clearly misunderstands both the Equal Access Act and the court rulings cited. For example, he seems to believe that the EAA only applies to religious student groups:

the Equal Access Act was passed by Congress to end growing discrimination against student religious groups that began to occur in public schools.

But in fact, the Equal Access Act does not specify religious groups. The wording prevents schools from discriminating against any student group on the basis of what is discussed at those meetings:

(20 U.S.C. §§ 4071-74) DENIAL OF EQUAL ACCESS PROHIBITED Sec. 4071. (a) It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

So in fact, the law does prevent discrimination against gay student groups as well as religious student groups and the ACLU was right to use it to defend the right of such groups to meet on school grounds, despite Gribbit's inflammatory language that they "strong armed" schools into doing so. This same law is used, and rightly so, to defend both types of clubs, but I doubt Gribbit would accuse the ADF of "strong arming" schools into allowing bible clubs (nor would I - the law is the law and Bible clubs should be allowed on an equal basis with any other student club).

Gribbit also mistakenly believes that the Equal Access Act applies to outside groups using school facilities; that is false. If you look at the text above from the EAA, you will see that it applies to "students...who wish to conduct a meeting." Thus, the Equal Access Act was not at issue in Good News Club v Milford. You can look at the ruling and you will see that the EAA is only mentioned one time, in a footnote. The ruling is not based on the EAA, but on the Supreme Court doctrine prohibiting viewpoint discrimination. So when he claims that the ACLU opposed the application of the EAA in Good News Club, he is wrong; the EAA did not apply in that case and was not at issue.

Good News Club was based not upon the EAA but upon the Supreme Court's doctrine prohibiting viewpoint discrimination in a limited public forum. This was the same basis upon which the earlier Lamb's Chapel case was based. But the ACLU filed a brief on behalf of Lamb's Chapel arguing for their access to public school facilities, while they filed a brief against allowing the Good News Club from having access to those facilities. Why the seemingly contradictory positions? The answer lies in the specific facts of each case and in the ACLU's amicus brief in Good News Club:

This case calls for the Court to delineate the margins of its holding in Lamb's Chapel v. Center Moriches Union Free School District, 508 U.S. 384 (1993), in which the Court held that the Free Speech Clause required, and the Establishment Clause did not prohibit, the provision of access to a public high school auditorium by a religious group. Several of the undersigned amici submitted a brief in Lamb's Chapel in support of the Court's holding because various factors in the case combined to ensure that a reasonable observer would not perceive the religious activity at issue to be endorsed or sponsored by the school. The overwhelming lack of these factors in this case counsels the opposite result. Lamb's Chapel involved use of a public school during the evening hours; this case involves access shortly before the end of the school day and immediately thereafter. The event in Lamb's Chapel was open to all members of the community, while the audience in this instance is limited to the school's elementary students. That case involved weekly use for five weeks; this one involves weekly use throughout the school year. That case involved similar uses by scores of community groups while, here, there are less than a handful of other outside groups, and not a single one of them holds meetings at the time requested by the Good News Club. In Lamb's Chapel, no school employee was involved in the showing of the film; in this case, it can be reasonably assumed that the age of the children and the timing of the meetings would necessitate the school's involvement and facilitation. Finally, that case involved the showing of a film series, while this one involves adults teaching a class using a format that is indistinguishable from typical classroom instruction.

These differences, in combination, create a seamless web between classroom instruction and religious indoctrination, such that a reasonable elementary school student would be unable to appreciate that the former instruction is schoolsponsored while the atter is not. Accordingly, the requested access is proscribed by the Establishment Clause and was therefore properly denied.

Now, if Gribbit wants to argue that the ACLU's position distinguishing between the two situations is hair splitting and that they were wrong in Good News Club, I'll actually agree with him. I don't find the arguments in the brief convincing or compelling enough to overcome the presumption against viewpoint discrimination, and I think the Court rightly rejected those arguments and ruled correctly in the case. But this statement from Gribbit:

The truth of the matter is that they opposed the application of the Equal Access Act in the Good News v Milford Central case as well as the initial challenge of the Act's Constitutionality in Westside case in 1985. THEN they used it to strong arm Washington Schools into accepting the gay/lesbian tolerance group.

Is false. The Equal Access Act applies only to secondary schools and only to student groups, so it was irrelevant in Good News Club. And while it's true that they initially opposed the Equal Access Act application in Mergens, the facts in Mergens were rather unusual and resulted in a convoluted plurality opinion (4 justices concurring fully, two more concurring in part but dissenting in part, two other justices concurring in part but dissenting in a different part, etc). I haven't seen the ACLU's brief in the Mergens case, so I can't say for sure whether they opposed the EAA itself or the particular application of it. But the fact is that they have consistently supported the application of that act in many cases over the last 20 years, both for gay student clubs and for religious clubs. And since the law does apply to both such clubs, it's inflammatory and false to claim that it's "strong arming" to force schools to comply in one case, but "standing up for their rights" in forcing schools to comply in the other. Both gay clubs and Bible clubs are perfectly legal in public secondary schools, and any school that refuses to recognize either of them should be "strong armed", whether by the ACLU or the ADF. And if he's going to accuse the ACLU of applying the Equal Access Act only for one and not the other, why is he not criticizing the ADF for not supporting the right of gay student groups to meet in public schools?

Overall, Gribbit did better than I expected here. I don't think he can fairly be accused of being dishonest, only of being sloppy in his research (which is ironic since he addressed the post to "our non-reading, 'I can't do my own research' trolling types." Someone capable of doing their own research and reading should have been able to figure out that the Equal Access Act had nothing to do with the Good News Club case because it applies only to secondary schools and only to student-led groups.

Update: Aww, gee, I missed this little addendum to his original post that I questioned:

Welcome Science Blog visitors... I believe you are all mindless lemmings if you've followed that mental midget's link here, but none-the-less you've found your way here so follow this link to "The Rest Of The Story".

With a link to the post I critiqued above. Now that much of what he said in "the rest of the story" turned out to be false (though I doubt intentionally so), I wonder if he'll now post "the rest of the rest of the story". Here I've gone out of my way to be nice to him, give him the benefit of the doubt and even conclude that he was merely mistaken rather than dishonest (and that's hardly a matter of great shame - I once claimed that the Lamb's Chapel decision was based on the Equal Access Act myself, until Volokh straightened me out about it). And he's calling me a "mental midget" and my readers "mindless lemmings". Such hostility in response to civil and good-natured correction. But it does make one wonder, since it turns out that he's the one who has gotten so many of his facts mixed up, why he insists on claiming that the one who corrected him is a "mental midget".

Update #2: I left the following comment after the post linked to above, but it appears that he has banned me from commenting (or at least forced moderation, since my comment did not appear after being sent). That's his right, of course, it's his blog. But since I did jump through his hoops and I've been unfailingly polite in this exchange (while he's engaged in several insults), one has to wonder how he justifies it. Anyway, here's the comment I left:

Leaving aside your sneering insults, calling me a "mental midget" and my readers "mindless lemmings", I just thought you'd like to know that you still have many of the facts wrong in this post. The Good News Club case had nothing to do with the Equal Access Act, which applies only to secondary schools and only to student-run organizations (Good News Club involved an elementary school and an outside community group). I've posted a reply with more detail in it. Can we expect a clarification of this clarification?

One really is left wondering why you would respond with such hostility to a perfectly civil response correcting a mistake. To someone who values accuracy, such a correction ought to be welcomed so that one can avoid making the same mistake again. There's no shame in that. I once believed and claimed that the Lamb's Chapel case was based upon the Equal Access Act myself, but Eugene Volokh corrected me. I didn't respond by calling him a mental midget, I responded by thanking him and by deciding that, in the future, it's probably a good idea to actually read court rulings before presuming to know what they are based on. Seems a good policy for anyone, doesn't it? So as I said, there's no shame in just being wrong, and as I wrote on my own blog, I don't think you were being dishonest here. I think you just spoke before bothering to check the facts (twice, in this case). We've all done that at one time or another, of course. The test of one's intellectual honesty, I think, is in how one handles having one's mistakes pointed out.

And indeed, this is the real test. If he responds with more vitriol or by banning me from viewing his blog (which seems rather likely at this point) he will have failed the test. An intellectually honest person would respond to someone pointing out one's errors in a civil manner by saying thanks and not making the same mistake again. Someone who doesn't care about truth or accuracy responds with insults.

Update #3: Indeed, he did not post the comment. Instead, he posted his own comment that reads:

Actually... I've been waiting on you Meatless... Just so I could ban you... Thanks for stopping by.

Meatless? Oh the irony of calling me, of all people, meatless. One has to wonder why he needed me to post a 4th comment in order to ban me. He already had my IP address. At any rate, I guess we've got our answer. He doesn't really care whether his statements are true or not. They make the ACLU look bad and that's all that matters, the truth be damned. And anyone who dares to point out his mistakes, even if doing so in a civil manner, is to be called names and banned. Is there anyone surprised? I didn't think so.