Florida A&M moves to fire Latina law prof who spoke on public concern; Hispanic law students resist

You may review and sign on to a letter of the FAMU Hispanic American Law Student Association opposing Reyes's termination here. 

Prof. Maritza Reyes

My colleague Professor Maritza Reyes, who is tenured at the Florida A&M (FAMU) College of Law, is fighting alongside students and other allies to save her job and to preserve academic freedom.

Reyes has been notified of the school's intent to dismiss her for doing her job in faculty governance. Reyes commented, professionally and appropriately, in a community email discussion of the abrupt, contentious, and institutionally embarrassing resignation of the law dean at FAMU in February.

FAMU apparently did not like what Reyes had to say. In a plain violation of academic freedom, the school proferred the email discussion as the reason to terminate a tenured professor.

I have written many times, since 2011, about the failure of universities to recognize academic freedom in spaces "penumbral" to published research and classroom teaching, namely faculty governance. In the same vein, Professor Keith Whittington wrote recently about the importance of protecting "extramural" academic speech.

Reyes is an accomplished and highly respected law teacher—thus, just the sort who attract condemnation in the academic culture—who is treasured by generations of students and has especially made a difference for persons of color in law schools and legal practice. She is FAMU's first and only tenured Latina law professor. In 2022, she founded the Graciela Olivárez Latinas in the Legal Academy ("GO LILA") Workshop, which she discussed in 2023 for AALS Women in Legal Education.

Students and alumni are leading the resistance to Reyes's termination. Please review and consider signing on to the following letter.  You can share the letter further with this link: https://forms.gle/VUnYPKiMwyWtMDJx8, or via The Savory Tort.

(This post revised and updated on Mar. 19, at 5:40 p.m.)

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Dear President Larry Robinson and Provost Allyson Watson:

We, the undersigned members of the Florida Agriculture and Mechanical University (FAMU) Hispanic American Law Student Association (HALSA), joined by fellow students, alumni, allies, and friends, respectfully request that you rescind your intent to dismiss College of Law Professor Maritza Reyes (Professor Reyes) from her tenured position. For the past fifteen (15) years, Professor Reyes has been a caring professor and has made excellent contributions to the school, especially its students. Professor Reyes has also served as HALSA's faculty advisor for many years.

Professor Reyes is an accomplished teacher, scholar, and member of the legal academy and community. She began her employment in the FAMU College of Law as a tenure-track assistant professor of law in 2009, earned tenure in 2015, and is now a tenured, full professor of law (the highest faculty rank). FAMU has evaluated Professor Reyes's record during many formal evaluative processes, including applications for promotion to associate professor, for tenure, and promotion to full professor; annual reviews; and, most recently, post-tenure review. Professor Reyes has demonstrated consistent excellence and productivity in scholarship, teaching, and service. She has too many accomplishments to list here, including being recognized in the U.S. Congressional Record for her service to our community. You are well-aware of her many accomplishments including through all of the above listed evaluations.

We were heartbroken and outraged to learn that Provost Allyson Watson (Provost Watson), by letter dated February 16, 2024 (the "Notice"), informed Professor Reyes of the University's intent to dismiss her from her tenured position. According to FAMU Regulation 10.120(2)(c), the "Contents of Notice" must include the following information: "A list of documents or written explanation on which the charges are based; and a statement that documents shall be available to the employee upon request." The documents Professor Reyes received consisted of emails that were sent to the entire College of Law Community during the period of February 1, 2024 to February 5, 2024. The entire College of Law Community (faculty, staff, and students) received the emails after then College of Law Dean Deidré Keller (Dean Keller) opened this email forum on February 1, 2024 to provide notice of her resignation effective immediately. Several professors, including Professor Reyes, and three students participated in these communications and sent emails to the entire College of Law Community. The use of email forums/listservs to the entire College of Law Community was not prohibited. Professor Reyes's emails were informative, professional, and timely. They helped bring transparency and accountability regarding Dean Keller's resignation, a matter of institutional and public importance. The Tallahassee Democrat initially reported about Dean Keller's resignation on February 2, 2024. Subsequently, Dean Keller provided her letter of resignation to this newspaper, which published it in a second article on February 6, 2024. These materials were readily available online via the newspaper's website.

In response to Professor Reyes's contributions via emails about Dean Keller's resignation, Provost Watson issued a Notice of intent to dismiss Professor Reyes from her tenured position. It seems to us that Provost Watson targeted Professor Reyes for the content of her speech and sought to silence her voice and future contributions in the FAMU College of Law. In a matter of days, Provost Watson charged Professor Reyes for dismissal without allowing her an opportunity to respond to a formal complaint, go through an investigation, receive meaningful due process, and get a report. To us as law students, the way Provost Watson has handled this situation screams of injustice and lack of due process.

Many students and alumni describe Professor Reyes as an exceptional educator who made a lasting and meaningful impact on their law school experiences and legal careers. She always set high standards and would provide the guidance and skills necessary to reach them. She also inspired students to achieve their individual levels of excellence. Some of us made it through difficult situations during law school thanks to her unwavering support. Professor Reyes has also been an advocate for student organizations. Therefore, if your intent to dismiss Professor Reyes comes to pass, you will harm past, current, and future FAMU College of Law students by taking away an excellent professor who has been our teacher, mentor, advocate, ally, supporter, and friend. You will also harm the law school, including with negative publicity. You have already disrupted the high-caliber teaching law students expected to receive when they registered for Professor Reyes's courses. You abruptly replaced her with less-credentialed and less-experienced instructors who had never taught in a law school before. Many of us will be further traumatized by Professor Reyes's dismissal. We cannot remain silent in the face of such injustice.

There are currently twenty (20) tenured professors (associate and full) in the College of Law. Professor Reyes was the first and thus far only Hispanic professor hired in the tenure track and subsequently tenured in the FAMU College of Law. She has served as HALSA's dedicated, supportive, and highly competent faculty advisor. According to the FAMU College of Law American Bar Association 2023 Standard 509 Required Disclosures, Hispanic students make up 25% of the total law student body. It is important that Hispanic students be appropriately represented in the law school. While this letter is spearheaded by HALSA's Board, we are being supported in our efforts by students and alumni of diverse backgrounds who appreciate and respect Professor Reyes's teaching, mentoring, and support.

There is a strong sense among the student body that an injustice is happening in view of all of us. On February 27, 2024, students met with FAMU College of Law Interim Dean Cecil Howard and protested the intended dismissal of Professor Reyes. Interim Dean Howard responded that the decision was made by Tallahassee Administrators to whom students should voice their protests. This is what we are doing via this open letter. We have distributed this letter widely for signatures by students, alumni, allies, friends, and supporters of justice everywhere. Please hear us when we tell you that the intended dismissal of Professor Reyes is a grave injustice. You have the power to stop this intended wrong. Please do so!

We respectfully demand that you keep Professor Maritza Reyes in the tenured faculty position she earned. She has done nothing warranting dismissal. We also demand that you grant Professor Reyes's request for a public meeting regarding her intended dismissal.

[Sign.]

NYPD seizes adorable dog, person too, in retaliation for video-recording in public, attorney-plaintiff alleges

A New York legal aid attorney was arrested, along with her dog, when she started video-recording police, and then she sued for civil rights violation.

Harvey (Compl. ¶ 36)

The NYPD messed with the wrong person. As the complaint tells it, Molly Griffard, an attorney with the Cop Accountability Project of the Legal Aid Society (Equal Justice Works), was walking her dog, Harvey, in the Bedford-Stuyvesant neighborhood of Brooklyn when "she saw police officers remove a young man from a bodega, and drag him around the corner where they lined him up with other young men against a wall."

Griffard began video-recording with her phone. After she crossed the street at an officer's instruction, she started writing down NYPD car plate numbers. An officer refused to give her his business card upon her request, the complaint alleges. Instead, the officer handcuffed Griffard and arrested her, taking her and Harvey into police custody. She was held at the 79th precinct for eight hours, while Harvey, a nine-year-old Yorkie, was held in the kennel.

Admittedly, what caught my attention in the case was not so much the facts, head-shaking inducing as they are, but the story of Harvey. Journalist Frank G. Runyeon, reporting for Law360, and NBC News 4 New York, also were enchanted.

Griffard and her attorney, David B. Rankin, of Beldock Levine & Hoffman LLP, must have been conscious of Harvey's intoxicating adorableness, too, because they included gratuitous glamor shots in the complaint—as I've reproduced here. 

Harvey (Compl. ¶ 20)

At its fringe, the case might be said to implicate animal rights, or at least the rights of owners of domesticated animals. Courts in the United States and elsewhere in the world are coming around to the idea that domesticated animals such as cats and dogs have a value exceeding their market worth as personal property, especially in the area of tort damages when the animals come to harm.

Griffard make no such claim, though, rather using Harvey as evidence to demonstrate her emotional distress at being separated from him and being given no information about his whereabouts while they were held—and, between the lines, to tug at the heartstrings and demonstrate the utter absurdity of her arrest and detainment.

One paragraph of the complaint does allege that seven-pound "Harvey was traumatized by the incident and now takes medication to treat his anxiety disorder." And the count of unreasonable seizure points out that "Harvey missed his dinner."

The case is Griffard v. City of New York, No. 512993/2023 (Sup. Ct. Kings County filed May 2, 2023).

No right to physician aid in dying, Mass. high court holds, rejecting analogy to same-sex marriage right

In 2017, Rep. Eleanor Holmes Norton (D-D.C.) and D.C. residents
protest to protect "death with dignity" law from congressional meddling.
Ted Eytan, MD, via Flickr CC BY-SA 2.0

There is no right to physician aid in dying in the Massachusetts constitution, the commonwealth high court held in December, leaving room for legislators to fill the gap.

A cancer patient and a doctor brought the case. The plaintiff patient, a retired physician with metastatic prostate cancer, wanted counseling on physician aid in dying; the plaintiff doctor wanted to give counsel to his patients struggling with potentially terminal illness. Both plaintiffs argued that they could not get what they want for fear that doctors can be prosecuted for the state common law crime of manslaughter, that is, reckless killing, or worse.

The court opinion refers consistently to "physician-assisted suicide" (PAS), but I'm here using the term "physician aid in dying" (PAD), a difference I'll explain. The medical action at issue here is the ability to "prescri[be] ... barbiturates [with] instructions on the manner in which to administer the medication in a way that will cause death." But the plaintiffs confined their demand to patients facing fatality within six months. 

In a footnote, the court said it used "PAS" because the American Medical Association (AMA) prefers the term. The AMA regards "PAD," or the more modish "medical aid in dying" (MAID), preferred by the plaintiffs, as unfavorably "ambiguous."

Massachusetts remains with majority of states in not recognizing PAD right.
Terrorist96 (upd. Apr. 2021) via Wikimedia Commons CC BY-SA 4.0

Facially, both terms are potentially ambiguous; the quibble over semantic precision faintly masks the policy disagreement. "PAS" implicates suicide in the conventional sense, comprising the intentional ending of one's life for any reason, including the expression of mental illness. That's a bigger ask in terms of constitutional entitlement. The 10 states (plus D.C.) that allow PAD, such as Oregon, require a terminal diagnosis and purport to exclude conventional suicide. "PAD" and "MAID," accordingly, mean to narrow the fact pattern to a patient who is hastening a process of natural death that already is under way, or at best ending an inescapable and intolerable suffering.

I learned about this distinction, and more in this area, only recently, as a student in my Comparative Law class is working on a research paper comparing MAID laws in Oregon and the Netherlands. In her early stage of topic selection, I referred her to, and recommend to everyone, my top This American Life segment of 2022, "Exit Strategy." The heartbreaking segment comprises excerpts of Connecticut writer Amy Bloom reading from her book, In Love: A Memoir of Love and Loss, which documented the figurative and literal journey of her and her husband to end his life in Switzerland after his diagnosis with Alzheimer's. I might one day read the whole book, but I'll need to work up the emotional strength.

The court's thorough opinion by Justice Frank M. Gaziano largely tracked the reasoning of the U.S. Supreme Court in declining to recognize PAD as a fundamental right, because it's supported neither by historical tradition nor widespread acceptance. Insofar as PAD is a reality on the ground for doctors and terminally ill patients, it still carries a stigma, the Massachusetts opinion observed. The medical community itself is divided over PAD, evidenced by amici in the case. In the absence of a fundamental right, state criminal law easily survives rational-basis review for substantive due process.

The Supreme Judicial Court recognized its own power and responsibility, in contrast with the more conservative U.S. Supreme Court, to tend and grow the scope of fundamental rights protected in Massachusetts, adapting the state Declaration of Rights to new social challenges. The Massachusetts court exercised that very power when it approved same-sex marriage in the commonwealth in Goodridge v. Department of Public Health (2003), 12 years before the U.S. Supreme Court did likewise for the nation in Obergefell v. Hodges (2015).

Voters reject the PAD initiative in Massachusetts in 2012.
Emw & Sswonk via Wikimedia Commons CC BY-SA 3.0

But the milieu in Massachusetts is hardly conducive to Goodridge delivering this plaintiff ball across the goal line, the court concluded. To the contrary, the court observed, Massachusetts voters rejected a PAD ("Death with Dignity") ballot initiative in 2012 (51% to 49% in "ferocious political battle"), "over a dozen bills" to legalize PAD have failed in the legislature, and statutes regulating healthcare affirmatively disallow PAD counseling.

The court opinion includes an intriguing discussion of standing. The case was something of a put-on, because local prosecutors did not threaten the plaintiff physician with prosecution. Again, the court acknowledged that doctors engage in PAD now, if quietly, criminal law notwithstanding. In reality, there is not a bright line between PAD and appropriate palliative care, or between "terminal sedation" and "palliative sedation." Prosecutors helped plaintiffs to sustain the case by saying that they would not decline to prosecute.

In the end, the court decided the case only in the matter of the physician. The court rejected the plaintiff patient's claim because he had not been given a six-month prognosis, and his cancer remained susceptible to treatment by multiple options. In the patient's defense, I'm not sure someone with a six-month prognosis would have time to prosecute the case to the high court, nor should be expected to. Justice Dalila Argaez Wendlandt aptly dissented on the point. The patient here submitted that he did not necessarily want PAD, but wanted to have the option to be counseled for it if the need arises. Anyway, the court allowed standing for the doctor on a theory of jus tertii ("third-party right"), when one person is allowed to assert the rights of another upon a close nexus of interests. This notion is implicated on the issue of standing in the mifepristone case now before the U.S. Supreme Court.

In separate opinions, Justices Wendlandt and Elspeth B. Cypher left the door ajar to a rights argument on the right facts. Justice Cypher wrote that some "constitutional zone of liberty and bodily autonomy" should preclude prosecution for "late-stage palliative care." Justice Wendlandt reasoned similarly that as a patient approaches death, the state interest in preserving life by way of criminal law wanes, eventually even as to fail rational-basis review of a "nonfundamental right."

Nothing about the court's opinion precludes the state legislature from reengaging with PAD, which has been legalized in the northeast in New Jersey, Maine, and Massachusetts neighbor Vermont.

The case is Kligler v. Attorney General, No. SJC-13194 (Mass. Dec. 19, 2022), available from the Alliance Defending Freedom, a conservative religious freedom advocacy group that participated as amicus on the side of the Attorney General.

Lawsuit alleges excessive force against federal immigration detainees held near public law school

⚠ Warning: indecent language.

Latino detainees of the Bristol County House of Corrections, which is located just three-quarters of a mile from the University of Massachusetts Law School, sued the county sheriff and Immigration and Customs Enforcement, alleging serious physical abuses.

Filed in April, the complaint, stating Bivens and § 1983 claims for excessive force, is available from the federal district court docket at Court Listener. The factual allegations detail incidents of violence and some not so flattering quotations of officers, such as: "Shut the fuck up. You bitches are a bunch of immigrants without papers. You have no rights."

Sheriff Hodgson shakes hands with former President Trump
at a White House event recognizing sheriffs in 2019.
(Official White House photo by Joyce N. Boghosian via Flickr.)

Named in the lawsuit is Bristol County, Mass., four-term "tough on crime" Sheriff Thomas M. Hodgson. This lawsuit is not his first tangle with unsavory allegations.

A 2020 report by the office of Attorney General Maura Healey determined that authorities employed excessive force in violation of the civil rights of federal immigration detainees (press release). New Bedford, Mass., tort lawyer Betty I. Ussach has written letters to local media complaining of the high cost of defending Hodgson's style of criminal justice (EastBayRI, Dartmouth Week Today).

But in past years, Hodgson's name recognition has seemed to work a no-publicity-is-bad-publicity magic in his reelection bids. Hodgson faces a slate of challengers this year.

I wonder whether the geographic juxtaposition of the Bristol prison and the Immigration Clinic at the state's only public law school is not telling of state conflict-of-interest policy, which would complicate if not prohibit clinic litigation against state and local actors. 

Clinic director Professor Emerita Irene Scharf retired just one one month ago. She exited amid some turbulence over how and even whether the law school would take responsibility for existing clients. It remains to be seen what the clinic will look like under new management. Scharf and sociology and anthropology Professor Lisa Maya Knauer have labored diligently for decades on behalf of the immigrant Latino community in south coast Massachusetts. But university personnel at Dartmouth, Mass., far from the aegis of the "flagship campus" at Amherst, must tread lightly in politically sensitive matters, lest they jeopardize the very existence of the system's less favored locations.

The present lawsuit, Morocho v. Bristol County Sheriff's Office (D. Mass. filed Apr. 29, 2022), was filed by Washington, D.C.-based NGO Rights Behind Bars and signed by its Boston-based litigation director, attorney Oren Nimni. Nimni is a graduate of Northeastern Law and an adjunct professor at Suffolk Law. So let the record reflect that monied Boston private law schools can make grief for public officials, too.

While Pope apologizes in Canada, U.S. reckons with legacy of federal Indian boarding schools

Children at Rehoboth Mission School, New Mexico
(from DOI report p. 39, credited: Hartog, C. (1910).
Rehoboth School [Photograph]. Indian mission sketches:
Descriptions and views of Navajo life, the Rehoboth Mission School
and the Stations Tohatchi and Zuni, 22. Gallup, N.M.: The Author.
Hathi Trust Digital Library)

The Pope's visit to Canada to ask forgiveness for the role of the Church has brought the tragedy of Indian boarding schools to light, but coverage has been thin on the U.S. legacy.

In the United States, Indian boarding schools were government policy and attempted a cultural genocide no less shamefully than the Church effort in Canada. This U.S. angle on the story hasn't been mentioned in my evening news the last few nights. But it was explicated by an Interior Department (DOI) report in May just this year and is being addressed in some media outlets (e.g., NPR).

The DOI report is just volume 1 in the ongoing investigation of the Federal Boarding School Initiative, "a comprehensive review of the troubled legacy of federal boarding school policies," launched in June 2021. A transmittal letter at the front of the report explained:

This report shows for the first time that between 1819 and 1969, the United States operated or supported 408 boarding schools across 37 states (or then-territories), including 21 schools in Alaska and 7 schools in Hawaii. This report identifies each of those schools by name and location, some of which operated across multiple sites.

This report confirms that the United States directly targeted American Indian, Alaska Native, and Native Hawaiian children in the pursuit of a policy of cultural assimilation that coincided with Indian territorial dispossession. It identifies the Federal Indian boarding schools that were used as a means for these ends, along with at least 53 burial sites for children across this system-with more site discoveries and data expected as we continue our research.

When I say "attempted cultural genocide," or "ethnocide," this isn't just me throwing around woke words. The DOI report detailed official policy dating to President Washington to "subdue[] the Indians" by assimilation, "helping the whites acquire desirable land." An 1803 memo by President Jefferson outlined a plan to relocate native Americans and push them into farming with the express aim that they would thereby fall into debt and have to cede their land. (And, I note, today still our corporate overlords are pushing all of us into asset ownership—homes, cars, cell phones—on the debt model rather than the capital model. You don't have to be native American for the strategy to make the rich richer and you poorer.)

Hundreds of thousands of children were taken from their families and sent to boarding schools often distant from their home communities. That generations of people were so traumatized explains a lot about the fragile social and economic state of reservation communities today.

In military school fashion, the children's every 24 hours in the boarding schools were regimented. Using quotes from contemporary accounts (notes and sources omitted here), the report recounted:

"The children are improved rather in their habits than in what they learn from books." For example, to teach them "obedience and cleanliness, and give[] them a better carriage," Department records detail examples of organizing Indian male children "into companies as soldiers, and the best material selected for sergeants and corporals." "They have been uniformed and drilled in many of the movements of army tactics."

The report explained the means and ends of the boarding schools with revealing perspective:

Systematic identity-alteration methodologies employed by Federal Indian boarding schools included renaming Indian children from Indian names to different English names; cutting the hair of Indian children; requiring the use of military or other standard uniforms as clothes; and discouraging or forbidding ... Indian languages, ... cultural practices, and ... religions. "When first brought in they are a hard-looking set. Their long tangled hair is shorn close, and then they are stripped of their Indian garb thoroughly washed, and clad, in civilized clothing. The metamorphosis is wonderful, and the little savage seems quite proud of his appearance."

"No Indian is spoken[:]" "There is not an Indian pupil whose tuition and maintenance is paid for by the United States Government who is permitted to study any other language than our own vernacular—the language of the greatest, most powerful, and enterprising nationalities beneath the sun."

Then there was enforcement for violating the rules, including the prohibitions on language and religious practice. Whipping was the preferred punishment for attempted runaways.

Indian boarding school rules were often enforced through punishment, including corporal punishment, such as solitary confinement, "flogging, withholding food, ... whipping[,]" and "slapping, or cuffing." At times, rule enforcement was a group experience: "for the first offense, unless a serious one, a reprimand before the school is far better than a dozen whippings, because one can teach the whole school that the offender has done something that is wrong, and they all know it and will remember it, while it is humiliating to the offender and answers better than whipping."

Conditions for even compliant children were less than optimal. Citing prior DOI investigations in 1928 and 1969, the 2022 report stated:

The Department has acknowledged "frankly and unequivocally that the provisions for the care of the Indian children in boarding schools are grossly inadequate." Rampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care in Indian boarding schools are well-documented.

Moreover, the children's labor was used to operate the schools, for example, the children's clothes were made by female students as part of their vocational training.

Lest the severity of these conditions be confused with mere norms of less gentle times, we might consider that schools, even in the 19th century, rarely had their own graveyards. DOI found 53 burial sites at Indian boarding schools, at least six unmarked.

U.S. Indian boarding schools have been examined thoughtfully in media outlets: The Atlantic, National Geographic (limited free), NPR, N.Y. Times, and Time (paywall).

There are books, too, of course: Ward Churchill's well regarded Kill the Indian, Save the Man (2004); the first-person Pipestone (2010) by Adam Fortunate Eagle; and the documentary compilation Boarding School Seasons (2000) by Brenda J. Child.

There are online resource collections at The National Native American Boarding School Healing Coalition and the Library of Congress.

My favorite media treatment in this area is a 2015 Radiolab segment, rebroadcast in 2018, "Ghosts of Football Past." Follow it up with a compelling reflection by Professor Justin De Leon.

Judge excoriates city in public records row

Worcester, Mass., City Hall
(Mass. Office of Travel & Tourism CC BY-ND 2.0 via Flickr)

In a remarkable opinion in January 2022, the Massachusetts Superior Court excoriated the city of Worcester, Massachusetts, for failure to comply with a newspaper's public records request investigating police misconduct.

In 2018, GateHouse Media, owner of the Worcester Telegram & Gazette and a subsidiary of Gannett, filed a Massachusetts freedom of information act (FOIA) request for files related to investigations of Worcester police in civil rights matters. The Telegram's interest was spurred by Worcester attorney Hector E. Pineiro, who was upset by police interaction with his son.

The city resisted production of the records because, it argued, they were part of ongoing litigation involving police officers. The Massachusetts FOIA has no litigation exemption per se, but officials shield some records under the deliberative process exemption, relating to policy positions still in development. The city grossly over-relied on that strategy, the court concluded in June 2021 after a rare FOIA trial.

GateHouse Media persisted with its case even after shaking lose the records, demanding that the city be permanently enjoined from similar baseless argument in the future and be charged with punitive damages. In January, the Superior Court, per Justice Janet Kenton-Walker, substantially sided with GateHouse, finding that the city had acted in bad faith and needlessly protracted the litigation and costs for years.

Not only did the city rely erroneously on the text of statute, Justice Kenton-Walker opined, it "cherry-picked certain language from ... cases, taking it out of context." And the city had an ugly history with the same issue. The court explained:

[T]he court cannot ignore that [the city] originally took [its] position in spite of the fact that the city was one of the parties to, and thus aware of, Worcester Telegram & Gazette Corp. v. Chief of Police of Worcester (Mass. App. Ct. 2003). In that case, the Appeals Court held that materials in a "Worcester police department internal affairs file ... compiled during an investigation of a citizen complaint," were public records. That court stated explicitly that "[i]t would be odd, indeed, to shield from the light of public scrutiny as 'personnel [file] or information' the workings and determinations of a process whose quintessential purpose is to inspire public confidence" (emphasis added).

The court declined to award an injunction, reasoning that the threat of litigation should provide sufficient deterrence. "Simply put, the court expects the city to follow the law now and in the future," the judge wrote.

But the court did order the city to pay $5,000 in "punitive damages." That's at the top of a range allowed by state law when public officials act in bad faith. The money goes to the state Public Records Assistance Fund, rather than to the plaintiff.

According to the Telegram in February, Pineiro said that "he believes the city fought 'tooth and nail' to avoid producing the records because it did not want the public to see a police internal disciplinary process he labeled a 'sham.'"

The city wrote in a statement, the Telegram reported, that it would "move on" and not appeal.

The case is GateHouse Media, LLC v. City of Worcester, No. 1885CV1526A (Mass. Super. Ct. Jan. 26, 2022).

Employer may not fire for personnel rebuttal, high court holds, even though statute provides no remedy

Pixy.org CC BY-NC-ND 4.0

Reversing a problematic and divided intermediate appellate court decision, the Massachusetts Supreme Judicial Court held in December that an at-will, private-sector employee may not be terminated for exercising a statutory right to rebut negative information in the employee's personnel file.

I wrote here at The Savory Tort about the intermediate appellate court decision in January 2021:

Plaintiff Terence Meehan, an employee discharged by defendant Medical Information Technology, Inc. (Meditech), availed of a Massachusetts statute that generously empowers an employee to rebut in writing negative information placed into the employee's personnel file.  The purpose behind the statute is to build a record so that a public authority, such as the state anti-discrimination commission, can better investigate any later legal claim of improper adverse action.  But the procedural mechanism of the statute, merely allowing the employee to rebut the record, does not itself articulate a basis in public policy to resist termination, the court held.

The Appeals Court had struggled with the case, deciding it 3-2 on rehearing after an initial 2-1 ruling against Meehan.  I commented then: The outcome was not inconsistent with American courts' general inhospitality to public policy-based claims of wrongful termination.  At the same time, the outcome was discordant with Massachusetts's more liberal disposition on wrongful termination, especially considering the civil rights-protective vein of the rebuttal statute.

The Supreme Judicial Court (SJC) recognized that public-policy constraints on at-will employment termination must be narrowly construed.  But constraint 

has been recognized "for asserting a legally guaranteed right (e.g., filing a worker's compensation claim), for doing what the law requires (e.g., serving on a jury), or for refusing to do that which the law forbids (e.g., committing perjury)" [SJC's added emphasis].... In addition to these three categories, this court subsequently created a fourth category to protect those "performing important public deeds, even though the law does not absolutely require the performance of such a deed." .... Such deeds include, for example, cooperating with an ongoing criminal investigation.

The rebuttal statute fell in the first category, the SJC held.  The trial court and Appeals Court had improperly second-guessed the importance of the statutory right and discounted it for its relation primarily to internal private affairs.  Those considerations bear on the fourth category, the court explained.  The legislative pronouncement is conclusive in the first category.

Even so, the court opined, the right of rebuttal is important, because it facilitates compliance with other workplace laws, "such as workplace safety, the timely payment of wages, and the prevention of discrimination, and nonemployment-related activity, such as those governing the environment and the economy."

While the lower courts were put off by the legislature's seemingly exclusive express remedy of a fine for non-compliance, the SJC regarded the omission of a retaliation remedy as mere failure to anticipate.  "Indeed," the court opined, retaliatory termination "would appear to be sticking a finger in the eye of the Legislature.... We conclude that the Legislature would not have permitted such a flouting of its authority, had it contemplated the possibility."

An employee claiming wrongful termination still has a hard road to recovery.  The court emphasized that causation, connecting rebuttal and termination, may raise a question of fact in such cases, and here on remand.  Moreover, an employee can overstep and forfeit common law protection.  The statute "does not extend to threats of personal violence, abuse, or similarly egregious responses if they are included in the rebuttal."

The case is Meehan v. Medical Information Technology, Inc., No. SJC-13117 (Mass. Dec. 17, 2021).  Justice Scott Kafker wrote the opinion of the unanimous court.

SCOTUS lets stand First Amendment protection of citizen newsgathering via secret recording of police

Pixabay by Bruce Emmerling

Denying review in November 2021, the U.S. Supreme Court let stand court decisions declaring the Massachusetts wiretap statute unconstitutional as applied to recording police in public places.

I wrote about the original U.S. District Court decision here at The Savory Tort in 2019.  As I commented then, the decision and others like it in the federal courts have broader implications for the First Amendment and the right of access to information.  Historically, American courts have been reluctant to locate access rights in the negative command that Congress make no law abridging the freedom of speech.

But developments in media technology have dimmed the once bright line between information acquisition and expression.  In an age in which one can retweet scarce moments after reading a tweet, government regulation of receipt seems to impinge intolerably on transmission.  Layer on as well a realpolitik of demand for accountability in law enforcement, and the mechanical application of a wiretap prohibition to a smartphone recording of police conduct, or misconduct, becomes indefensible.

Accordingly, civil liberties advocates applauded the district court holding "that secret audio recording of government officials, including law enforcement officials, performing their duties in public is protected by the First Amendment, subject only to reasonable time, place, and manner restrictions."  Bipartisan claimants in the case included Boston-based civil rights activists K. Eric Martin and René Perez, supported by the ACLU of Massachusetts, and conservative activist James O'Keefe and his Project Veritas Action Fund.

In December 2020, the First Circuit mostly affirmed.  U.S. Circuit Judge David J. Barron observed for a unanimous panel that also comprised retired Supreme Court Justice David Souter, sitting by designation, and Senior Judge and Rhode Islander Bruce M. Selya, "Massachusetts makes it as much a crime for a civic-minded observer to use a smartphone to record from a safe distance what is said during a police officer's mistreatment of a civilian in a city park as it is for a revenge-seeker to hide a tape recorder under the table at a private home to capture a conversation with an ex-spouse."

The Massachusetts wiretap law, which is restrictive, requiring all-party consent, but not unique in the states, thus offended the First Amendment insofar as it "prohibit[ed] the secret, non-consensual audio recording of police officers discharging their official duties in public spaces."  In the vein of the changing media landscape and advent of citizen journalism, the First Circuit opined: "In sum, a citizen's audio recording of on-duty police officers' treatment of civilians in public spaces while carrying out their official duties, even when conducted without an officer's knowledge, can constitute newsgathering every bit as much as a credentialed reporter's after-the-fact efforts to ascertain what had transpired."

However, ruling that Project Veritas's purported fear of prospective prosecution failed to prevent a controversy ripe for adjudication, the First Circuit vacated the judgment of the district court insofar as it reached the "secret, non-consensual audio recording of government officials discharging their duties in public" (my emphasis).  That's not to say the principle of the ruling cannot extend beyond police, to other public officials, when there is legitimate public interest in accountability.  Precedent suggests such extension.  But the court was skeptical of the potential reach of an unqualified ruling: "[I]f we ... construe the term 'government officials' as broadly as 'officials and civil servants,' that category covers everyone from an elected official to a public school teacher to a city park maintenance worker."

The First Circuit ruling thus nudges the First Amendment forward in the access arena.  Meanwhile, First Amendment problems lurk ever more menacingly in countervailing privacy law.

At the end of November 2021, Twitter announced a new privacy policy allowing any individual pictured in a tweet to demand takedown, regardless of whether the tweet contains information held private.  There are public-figure and public-interest exceptions.  But generally, images of ordinary persons in public places are imbued with a right of privacy akin to that which animates the European (and increasingly rest-of-the-world) right of personal data protection.

The balanced protection of personal privacy in public places is proving difficult to draw in European courts, which have generated rulings not always savory to the American palate.  My Google Nest Doorbell, for example, facing the public street in Rhode Island, would be problematic under European privacy law.  A private company, Twitter does not have to contend with the First Amendment.  But if the same privacy value and takedown policy were embodied in law, well, as they say in New England, a stahm is a-brewin'.

Both district and circuit courts rejected Project Veritas's facial challenge to the wiretap law.  Project Veritas filed a petition for writ of certiorari in May 2021, and the U.S. Supreme Court denied review in Project Veritas Action Fund v. Rollins, No. 20-1598, on November 22, 2021.  Hat tip to Brian Dowling at Law360.  Cf. Family in fatal police shooting demands transparency, The Savory Tort, Jan. 19, 2022.

Justices test Harvard property claims, as civil rights attorney pleads passionately for return of slave images

Lanier's story in a 2020 short by Connecticut Public

This morning the Massachusetts Supreme Judicial Court heard oral arguments in the case of Lanier v. Harvard, in which Tamara Lanier seeks to recover daguerreotypes of her enslaved ancestors, father and daughter Renty and Delia Taylor, taken on a South Carolina plantation in 1850.

The case is mostly about property and procedural law, namely, replevin and laches, though counsel for Lanier described the initial possession of the images as tortious conversion.  The images were taken and "used by the Harvard biologist Louis Agassiz to formulate his now-discredited ideas about racial difference, known as polygenism," the Center for Art Law explained. "Renty and Delia were photographed naked to the waist from the front, side and back without their consent or compensation."

Harvard's position depends on a narrow view of the case as a simple question of property ownership.  As the saying goes, "possession is nine tenths of the law."  Harvard bolsters its position with the argument that has become familiar from museums in our age in which returning artifacts to the once colonized, developing world is increasingly common, that the public will benefit from, and the horrors of slavery will be exposed by, public presentation of the daguerreotypes in a scholarly context.

The Lanier family articulates a broader theory of the case.  Civil rights attorney Ben Crump compared the sought-after return of the daguerreotypes to return of the possessions of Japanese families after World War II internment and Jewish families after the Holocaust, the latter including The Woman in Gold. 

The Lanier side divided its argument between two attorneys.  Crump opened the second half with a powerful statement of what he described as "three historical references" to frame the case from the Lanier perspective.  First, he said:

The fact that I stand before you as a free man and not a slave is a testament to someone's decision to change the course of human history.  It is a testament to our legal system, a testament that was led by the courts here in Massachusetts when Chief Justice William Cushing in 1783 judicially abolished slavery in the Quock Walker case.  And it is the reason why he is so often quoted even 250 years later with ... the idea of slavery as inconsistent with our conduct and our Constitution.

Second, Crump paraphrased Frederick Douglass, that

the genealogical trees of black people do not flourish as a result of slavery.  In essence what he was saying is that what slavery did was destroy the African-American family connection to its ancestral lineage.  But this historical case has the ability not only to recognize such lineage but [to recognize such lineage in] Ms. Linear and her family.

Third, Crump said:

This case presents a case study of Massachusetts's complicated history with slavery.  On one hand it has profited mightily from the cotton trade.  Its most powerful institution, Harvard University, has ties with slavery that date back centuries.  In fact the textile factories that were the largest donors of the university helped to build capitalistic empires on the backs of slave empires.  In fact the institution of Harvard and the institution of slavery were born in this country a mere 17 years apart.  On the other hand, Massachusetts is also the home of John Adams, and it is not lost on me or Ms. Lanier that we are in the John Adams Courthouse.  John Adams said slavery is the great and foul stain upon the North American Union.

Justices Kafker, Wendlandt, and Cypher actively and almost exclusively interrogated the advocates.  Based on the colloquy, the smart money in the case is on Lanier.  Kafker and Wendlandt tied up Harvard advocate Anton Metlitsky mostly in civil procedure.  The justices seemed to be testing out how they might navigate procedural challenges to reach a ruling in Lanier's favor.

The justices did challenge Crump and co-counsel Joshua Koskoff on First Amendment issues.  In an amicus brief in the case, the Massachusetts Newspaper Publishers Association warned against a ruling that would give the subjects of photos an ownership interest in the images, for fear that First Amendment-protected news coverage would be jeopardized.  It's interesting to see that concern raised in this context, because the point also marks division between the United States and Europe over data privacy rights in photographs of persons in public places.

The probing revealed that counsel for Lanier would render the case large or small, depending on their needs.  Taming the case back to mere property dispute, Koskoff called "First Amendment implications" in the case "a strawman."  The First Amendment is not implicated in a case of conversion, he argued, any more than the Second Amendment is implicated when someone is shot and killed.

Justice Kafker challenged Koskoff on whether return of the pictures would make them inaccessible to scholars and, as Harvard contends, thus unable to educate the public in the way that Holocaust images have.  Koskoff stuck to his guns, responding that it was up to Renty and Delia, and thus up to the Lanier family, whether the images would be used for public education.  The ends don't justify the means, he said.

In a related vein, Justice Wendlandt questioned Crump whether the outcome would be the same if the images had been discovered "in a drawer of the Boston Globe."  Crump ducked the question.  "This was a scientific experiment with black people being used as lab rats," he responded potently but inappositely, a "crime against humanity" and a crime under Massachusetts law.

Wendlandt reiterated her question, and still Crump ducked it, arguing that the hypothetical was not the facts of the case.  Wendlandt then restated Crump's response back to him as a "yes," that it makes no difference who claims ownership of the daguerreotypes today.  Crump picked up the thread, arguing analogy to the removal of The Woman in Gold from public display in Austria.

"This court has the ability to finally free Renty and Delia from bondage," Crump concluded.  "We are beseeching this court not to condemn them in death to the property of Harvard for all eternity."

The case is Lanier v. President and Fellows of Harvard College, No. SJC-13138 (argued Nov. 1, 2021).  Briefs are posted on the docket.  The oral argument will be posted at the Suffolk Law archive.  The Harvard Crimson published a thorough piece on the case in March.  A retired probation officer in Connecticut, Tamara Lanier tells her story at the website of the "Harvard Coalition to Free Renty"; there also is a documentary film by David Grubin.

[UPDATE, Nov. 3:] 

The oral argument is now posted in the Suffolk archive.  Also, Tamara Lanier posted a 15-minute clip of Crump's argument on her YouTube page today (below).

I add that Crump's argument, while quotable, was not as substantively important as Koskoff's.  I rewatched the oral argument today.  It remains clear to me that the justices, at least those who participated in the colloquy, are searching for a way to have Lanier win, but are struggling to find a legal rationale that matches the policy rationale.

In a telling exchange out of the gate, the justices pressed Koskoff for a rationale to convert his theory of tortious conversion in 1850, a premise the justices seemed willing to accept, into a property right in 2021.  Koskoff responded by describing tort law as an umbrella and property law within it, reasoning that a tortfeasor is not allowed to keep the proceeds of a tort.

I find the reasoning sound, notwithstanding the doctrine of laches, but I'm not sure the semantics and metaphor were quite right.  I have never understood tort law to dictate the outcome Koskoff describes; rather, I regard the proceeds of a tort as forfeit in equity.  Well recognizing how easy it is to Monday morning quarterback, I wonder that Koskoff might have prepared a better argument grounded in equity rather than tort law.

Anyway, it will take some legal gymnastics for the court to reach the result that at least three justices seemed to desire.

Student comment calls on police unions to do their part for accountability reform, revelation of truth

Michelle M.K. Hatfield, an alum of my Torts I-II classes, has published a comment, Can Police Unions Help Change American Policing?  

This comment nicely links the need for police accountability with the right to truth, a theme better known in post-apartheid South Africa than in American policing, and suggests that police unions could do more to stimulate socially constructive reform.  Here is the abstract:

Police unions are part of the problem in American policing. Could police unions also be part of the solution? This Comment begins by putting into practice the dialectic we must achieve at a societal level by detailing the ways in which police and Black Americans have been positioned to be in conflict from the seventeenth century to the present, and by discussing the formation of police unions. American society needs truth-telling about the history and present context that drives police officers into deadly conflict with Black Americans to heal, trust, and effectuate a more perfect system for public safety. This Comment wrestles with the need to understand several truths at once: that police organized into unions in part to protect the rank-and-file from managerial abuse; that the American policing system is in many ways designed and implemented against Black Americans; that police unions organized in the Civil Rights Era to protect police officers from discipline for following orders; and that deep, structural change should include police unions. Less fundamental changes that leave in place the core of American policing, without examining its racist foundations and incentives toward brutality and lethal force, will not serve to bring about lasting reconciliation. This Comment reviews several ways to improve the management of police departments put forth by labor and policing scholars and suggests that the promise of such reforms could motivate participation in a truth process. The conversation about policing reform in the United States has expanded and deepened tremendously in the past year, and it continues to evolve and take on new dimensions. This Comment urges policymakers to create a truth process as part of police reform and suggests that the process be implemented via the police unions because the voices of police organizations that represent rank-and-file officers are a critical ingredient for meaningful change.

Needless to say, police accountability has become a recurring theme and point of student interest in my courses, including Torts and Freedom of Information Law.  Ms. Hatfield gave me and my law-librarian-extraordinaire spouse Misty Peltz-Steele the privilege of feeding back on this article prior to submission for publication, but that's me riding coattails.  Ms. Hatfield prepared this superb paper principally upon her own impressive initiative and in ample fulfillment of the paper requirement of a popular course in labor law taught by my colleague in public policy, Professor Mark Paige.

The comment appears in the UCLA Criminal Justice Law Review, 2021:211.

FOIA committee ponders access amid privatization

I had the great privilege last week to speak to the U.S. Freedom of Information Act (FOIA) Advisory Committee, working under the aegis of the Office of Government Information Services (OGIS) in the National Archives and Records Administration (NARA) on the subject of access to the private sector in the public interest.

The OPEN the Government Act of 2007 augmented FOIA to follow public records into the hands of government contractors.  But the federal FOIA's reach into the private sector remains extremely limited relative to other access-to-information (ATI) systems in the United States and the world.  U.S. states vary widely in approach; the vast majority of state open records acts reaches into the private sector upon some test of state delegation, whether public funding, function, or power.  The same approach predominates in Europe.

The lack of such a mechanism at the federal level in the United States has resulted in a marked deficit of accountability in privatization.  The problem is especially pronounced in areas in which civil rights are prone to abuse, such as privatized prison services, over which the FOIA Advisory Committee and Congress have expressed concern.  By executive order, President Biden is ending the federal outsourcing of incarceration.  But access policy questions remain in questions about the past, in waning contracts, and in persistent privatization in some states.

As I have written in recent years, and examined relative to ATI in the United States, Europe, and India, an emerging model of ATI in Africa advances a novel theory of private-sector access in the interest of human-rights accountability.  I was privileged to share this model, and the theory behind it, with the committee.  I thank the committee for its indulgence, especially OGIS Director Alina Semo for her leadership and Villanova Law Professor Tuan Samahon for his interest in my work now and in the past.

Netflix's 'The Chair' satirizes academic politics with troubling truths of contemporary campus culture

Netflix's The Chair is an enjoyable six-episode sit com on the absurdity of academic politics in American higher education today.  The show was created and written by Amanda Peet and stars Sandra Oh (Grey's Anatomy, Killing Eve) as the perpetually embattled chair of the English department at a small elite college.

In one storyline, reminiscent of Scott Johnston's Campusland (2019), well meaning professor Bill Dobson (Jay Duplass) is pilloried for a mock Nazi salute, turned into a social media meme, in a class lesson on fascism and absurdism.

Comedic parody derives its beauty, of course, from its grain of truth.  Dobson's predicament is precisely one reason I have resisted routine video lecture capture.  Humor has pedagogical value, but one remark out of context is a brewing tempest in a teapot.  The risk might be worthwhile if teachers could have confidence in academic freedom.  But they can't and don't.

As depicted in the show, university administrators obsessed with appearances and virtue signaling to the near exclusion of educational mission and pedagogical merit relish any opportunity to sacrifice an iconoclastic academic to the maw of groupthink.  No shackles of investigation or professional integrity can be permitted to slow the rush to condemnation.

Jay Duplass (Peabody Awards photo CC BY 2.0) 

Fictional Professor Dobson defends himself to the dean: "I’m tenured.  You can’t constrain my actions in my own classroom or my speech on this campus unless I’m in violation of the faculty code of conduct.  Which I’m not."

But there's the rub: arguably, he is.  An administrator at my university has enforced against faculty the university system's "Principles of Employee Conduct." The vague principles require faculty to "accord respect" to all persons and "to accept full responsibility for their actions."

If those terms were read in accordance with others—"foster forthright expression of opinion and tolerance for the views of others"—then no problem.  But if administrators are willing to read dissent, whistle-blowing, and classroom provocation as disrespect, which they are, faculty have no real recourse.  As I wrote more than a decade ago, and others periodically observe, tenure protection grounded in procedural due process is an empty promise in practice, and courts routinely abstain from recognition of any substantive academic freedom.

Faced with dismissal proceedings, Dobson reluctantly resorts to a lawyer in the final episode of the first season.  No spoilers.

The Chair is enjoyable mostly for the comedy.  But it delivers as well periodic gems of thought-provoking truth, besides the sad state of academic freedom: the need for critical reexamination of historical subject matter and diversification of faculty perspectives, without sacrificing academic integrity; the fate of classical studies in the age of impatience; university budget cuts to unremunerative liberal arts; the personal and professional challenges of growing old amid fast-paced social evolution; and what can or should be done today to remedy past social and economic injustices of race and gender.

When the father of our protagonist Ji-Yoon Kim criticizes her work-life imbalance, an aggravated Kim retorts, "What promotion means you don't have to work as much?!"

A story for our times.

Also among the outstanding cast are Nana Mensah (Queen of Glory, King of Staten Island) and the ageless Holland Taylor.  Sophie Gilbert at The Atlantic liked it too.  HT @ Prof. Irene Scharf.

Remembering journalist Paul Greenberg, 1937-2021

pxhere CC0 1.0

In April, our world lost a great American writer: Paul Greenberg died at age 84.

Long a nationally syndicated columnist writing from "small town" Arkansas, Greenberg won the Pulitzer Prize in 1969 for editorials on civil rights.  In D.C. Beltway circles, he is maybe best known for having given Bill Clinton the moniker "Slick Willie."  But Greenberg was no dogmatic partisan.  He described himself aptly as an "ideologically unreliable conservative."

Greenberg's politics were difficult to pin down, because he resisted labels and simply called the world as he saw it.  His parents immigrated from eastern Europe early in the 20th century, and their experience infused his morality and writing with a libertarian savor.  The same 20th-century-immigrant experience forged me, so I identify with the motivation.  An embrace of liberal immigration policy alongside a relentless insistence on conservative work ethic strikes some in America as a vulgar inconsistency, but, to me, strikes a sonorous chord.

Notwithstanding his famous wariness of Clinton politics, Greenberg was so much more than a political pundit.  A Jew from Shreveport, Louisiana (near my wife's home town), growing up during and after World War II, he was stocked with ample source material to inform comment on the American condition from a peculiar perch of simultaneous detachment and investment.  His writing exuded cultural fluency, from ancient wisdom to contemporary "fadtalk," as he termed it.  A Greenberg column could invoke the prophet Isaiah, philosopher Foucault, and Leonardo the mutant ninja turtle in one incisive analysis and scarce recognition of any juxtaposition.  Greenberg lionized early 20th-century editorialist William Allen White, whom he credited as having said, "A great editorial is one that says something everybody knows but nobody has said before."

A writer's writer, Greenberg wrote thoughtfully and lovingly, but always with profound humility, about the craft of editorializing.  In a column on the legacy of H.L. Mencken, Greenberg wrote of writing:

The first steps in the writing process may be painful as one watches what seemed a great idea fail the test of words, or turn into something entirely different.  But it is satisfying to watch something of form and substance emerge from the inchoate mass.  When it's well done, the writer feels like a sculptor chiseling away deftly at a block of stone.  If done poorly day after day, stroke after stroke, the effect on both writer and reader is more like that of the Chinese water torture.

Library of Congress Gottscho-Schleisner Collection (1950)

Greenberg lamented the gradual disintegration of journalism in the late 20th century and, as a student of Marshall McLuhan, fretted irascibly about the corrosive effects of ephemeral television.  He railed against the anti-intellectual condescension of the bullet point.  He wrote columns to a thousand-plus-word length that felt cordially readable, though a blog adviser today would animadvert as excessive.  (You're 450 words into this blog now; am I not tiresome?)  He insisted, "I remain convinced that anyone will read an editorial if it's irresistibly written."

I knew Paul Greenberg only by reputation and a degree of separation.  To me, mostly, he was a visage of halftone dots gazing into the world from the top of a broadsheet.  Greenberg's son, Dan, is a friend of mine, and a lawyer with whom I've been privileged to collaborate on many projects over the years.  Dan is possessed of obstinate integrity, humble yet profuse intellect, and earnest devotion to family.  So I always have appraised him as an apple that fell close to the tree.

When the news came that Paul Greenberg had died, I had a yearning to read more of his work, especially work that was not tied to the messy milieu of politics.  So I borrowed from the library a 1992 collection aptly titled, Entirely Personal.  The book compiled some of Greenberg's more intimate writings in chapters such as "family," "religion," "the writer," and "the small town."  These works predated my familiarity with Greenberg, so they were all new to me.  They were a treasure to unwrap.

I asked for, and Dan gave me, permission to share one his father's works from the book.  I had trouble choosing which.  I've read Entirely Personal twice now, and I've been struck time and again by how prescient the writings were, and how salient they remain.  There are superficial tells of their place in time—Ronald Reagan, Russians in Afghanistan, and appointment TV—yet, from these circumstances, Greenberg derived timeless observations that are equally meaningful in a world of Donald Trump, Americans in Afghanistan, and mass media overload.  There are surprisingly poignant pieces on family that speak eternal truths.  But, at this time of loss, they make me sad and seem intrusive—too personal. 

I was captivated especially by Greenberg's chapter on religion.  In the introduction, he recounted, "Someone once asked me how much of my writing was influenced by my being Jewish.  The immediate, spontaneous response that formed in my mind was: 'Every word, including and and the.'"  Besides his Jewish heritage and parents' immigrant experience, Greenberg grew up contemporaneously with the Holocaust.  Consistently with his proclivity for self-definition, his views were shaped invariably by witness.  He was, at once, spiritually conscious in his personal life and fervidly committed to the exclusion of religion from public life.

Thus, though it might be an unconventional choice, I found my favorite writing in the book in a column imitative in style.  In 1990, the Supreme Court issued a pair of key decisions on the religion clauses of the First Amendment.  In a case on the Establishment Clause, the Court permitted a Christian student club to meet in a public school over the objection of the school board.  One might expect a "conservative" and staunch advocate for the freedom of religion to applaud the decision.  To the contrary, Greenberg saw the decision as a threat to religion, specifically, to the freedom of church from state, an underlying theory of the Anti-Establishment Clause.  With devilish ingenuity, he wrote a cheeky retort as an addendum to The Screwtape Letters.

In memory of Paul Greenberg, great American writer, here is, "Letter from Below (With Apologies to C.S. Lewis)," published in June of 1990, and reprinted in Entirely Personal in 1992.  I'm not certain I agree entirely with Greenberg's absolutist stance on separationism.  But I understand and deeply appreciate the reckoning of his conviction.  Just as importantly, and characteristically, his witty observations speak also generally, and still today saliently, to the danger of majoritarian usurpation of individual self-determination.

Please note that this republication is made possible by special permission of Dan Greenberg.  The work is copyrighted by Paul Greenberg and is not covered by the Creative Commons license to this blog.

Enjoy.

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Letter from Below

(With Apologies to C.S. Lewis)

June 4, 1990

My dear Wormwood,

The best of news. On the first anniversary of another of our great victories, the one in Tiananmen Square, your affectionate uncle happened to be glancing through the public prints, which are second only to television in promoting our cause, when my eye fell on the latest decision of the U.S. Supreme Court concerning church and state, both of which have been our province from time to time. It seems the distinguished justices have been busying themselves blurring the distinction between the two—a work that would be most dear to my heart if I had one.

This time the justices aren't deciding just when a religious symbol has become sufficiently irreligious to be displayed on public property (may they never tire of such work!) but rather how to make religion an extracurricular activity, which of course is what it should have been all along. What better way to keep it from being essential?

It shouldn't be long before the happy impression spreads that religion requires the support of the state, or at least the occasional use of a classroom. It's a start. Experience has shown that the more official a creed, the less appealing. See the paltry interest in the established churches of Western Europe. Or note the disaster that has befallen that most established of pseudo-religions, Communism, in the eastern part of the continent. It's enough to make you weep. 

I loved Sandra Day O'Connor's formulation for the majority of the court: "A school that permits a student-initiated and student-led religious club to meet after school, just as it permits any other student group to do, does not convey a message of state approval or endorsement of the particular religion." Do you think she has any inkling of what it does convey—namely, state approval of religion in general? And a state that can approve religion can disapprove it, too. Indeed, I think approval is much the more effective way to stifle the thing.

Religion-in-general, my dear Wormwood, is our great ally. It should be encouraged at every turn. I can just see the kiddies sitting around homeroom now, deciding which after-school clubs to join. ("I just can't make a choice, can you, Rebecca Jo? Chess, scuba diving or religion, they all sound like fun. Maybe I'll take religion. They say it improves your communications skills. ") It shouldn't be long before faith is treated as a nice, constructive after-school activity.

Religion, the real thing, can't be practiced in general—any more than language can be spoken in general. You have to choose a specific one. Religion-in-general has all the moral authority and emotional impact of Esperanto. Our mission is to replace belief with some safe, state-approved substitute. Once we extend a veneer of religiosity over the schools, the genuine article can be expected to fade away. Better to have the little suckers pray in school than in church or, even more dangerous, at home. Civil religion, that's the ticket, my dear nephew.

John Paul Stevens may represent something of a problem. Thank hell, he was the only dissenter from this lovely little ruling. Only he recognized that it comes "perilously close to an outright command to allow organized prayer … on school premises." Do you think he's on to our game, namely more and more organization, less and less personal prayer? We have to reduce prayer to something else—an extra-curricular activity, another government benefit, an opening ceremony, a public convenience … anything but an intimate experience. That's when it's dangerous.

Only when prayer and Bible study are officially recognized as wholesome activities conducive to better grades and order in the halls will we have defanged the saving thing. The trick is to make it an instrument—a technique, an extra-curricular activity, never a state of being, or all our subjects will be left open to the Enemy. We'll know we're succeeding when school Prayer Clubs start having their own letter jackets. What a great day it'll be when we make religion utterly dependent on peer pressure.

Justice O'Connor says a school can still ban disruptive groups. That's precisely the kind of prayer we want to encourage, Wormwood, the kind that doesn't disrupt anything, especially not our stock in trade: ordinary, routinely accepted, unnoticeable evil. Real prayer can be a powerfully disruptive influence. It can revolutionize the most stable society; never forget what befell poor Nineveh when its people unaccountably listened to that Jonah person against all reason. Yet prayer can also be the one thing that holds people together when everything else has collapsed around them. Perverse, unpredictable thing, prayer. It needs to be put in the care of the proper authorities, namely the state.

Isn't the name of the law that the court upheld perfect? The Equal Access Act of 1984. I love it. The great problem with the First Amendment, which so long has stood in our way, is precisely that it does not provide equal access to religion. Government is explicitly barred from passing any law having to do with its establishment. Religion is set apart, as if it were something holy. Government is told not to touch it or even come close to it. This is intolerable, Wormwood. Only by bringing religion under the state's authority, by rendering unto Caesar what isn't his, can we blur the essence of religion, which is the separation of the holy and the profane. This decision should help.

The great challenge facing religion is not equal access to the world but how to retain enough integrity to stay distinguishable from the world. My fellow demon Glittercut did a good night's work when he invented Success Theology. Our job, my young protege, is to make religion indistinguishable from the world, one more extra-curricular activity. The last temptation—mastery of the powers and principalities—is still the most effective. As the world giveth, so give we.

What we've got to do is get people thinking of religion as something educational, beneficial, a means to some greater social end, an institution wholly worthy of a little government support—a tuition grant here and there, or a place to meet in the schools. We've got to get it on the dole. That way it won't go off on its own with unpredictable results. It needs to be woven smoothly into the social fabric so it can be corrupted with everything else. Left alone, there's no telling where it may spread. The Enemy can be dangerous when left to His own strange devices. Be warned, young demon, He is never stronger than when He appears weak in the eyes of the world.

Have you noticed the enthusiasm this ruling has kindled among many of the faithful? It's an inspiring sight. They've been handed a stone and think it's bread. Delicious.

That's about all the news from down under. I'm still vying with my old rival Gallclaws for the next GS-16 rating in the bureaucracy. The competition here is, of course, hellish. But news like this cheers me.

Your affectionate uncle,

Screwtape

© 1992 Paul Greenberg

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Read more from Paul Greenberg at Jewish World Review, in one of his books, or in your preferred news archive.  The Greenberg family plans to archive his papers.