At times my life expereinces seem to intersect with current events, and I feel compelled to share my ideas in a way that may be relevant to the larger community. Now is one of those times. I was expecting January 6, 2021 to be a rough day. For me that day commemorates one year since my beautiful, brilliant son took his life. It had been a difficult year to grieve without being able to see family and friends because of the pandemic. I had expected that folks would be calling to offer comfort on that day. What I hadn’t expect were texts and phone calls asking, “ Are you watching the news?” And, “Turn on the news, the Capitol is under attack.” So for me, that date, January 6th , will live in infamy for two reasons.
It wpuldn’t be until a couple of days after the impeachment trial began that I would learn that Impeachment Manager Jamie Raskin’s son had taken his own life just days before the insurrection. I marvel that Mr. Raskin is able to do the brilliant job that he has done without having had time to properly grieve for his son. My heart is with him every minute that he stands before us doing the work of the people in what has to be a devastating time for him. I offer my sympathy and empathy.
Another point of intersection — Jamie Raskin talked about free speech today. He mentioned teachers and their free speech rights.He said, “If they are not living up to their duties as a teacher, they can be fired. Everybody knows that.” I want to talk about that a little because I, probably more than anyone, know about that.
REMEMBERING WHEN . . .
It’s been about 12 years since I wrote this diary: I was on the Ed SchultzShow to talk on Obama’s speech to children. I thought it might be a topic worth revisiting in the light of Jamie Raskin’s remarks Thursday during the second impeachment trial of former President Donald Trump. My case, Mayer v. Monroe County Community Schools was referred to as the Honk for Peace case as it winded its way through the courts where finally the U.S. Supreme Court declined to hear it. (The Supreme Court of the United Sates hears only 1 in 8000 cases each year. An excellent argument for more judges on the bench and updating the way we make law.)
From theSevetnCircuit Review:
During a curriculum-specified class discussion of the war in Iraq, a sixth grader asked her teacher, Ms. Mayer, if she would ever march to protest the war. The school dismissed the teacher for answering the student. In Mayer v. Monroe County Community School Corp., the Seventh Circuit ruled that no teacher has the First Amendment right to express an opinion in the classroom. The case inappropriately applied the U.S. Supreme Court's recent Garcetti v. Ceballos decision in a way that overruled previous precedent. This Note will argue that the Seventh Circuit should have followed its earlier decisions by asking the school to show a legitimate pedagogical reason for its decision.
It should are noted that when I filed my first case, There was no Garcetti v. Ceballos. It was only at the SCOTUS level, that the school was able to use that case against me. It was at that time that I became personally acquainted with the term ex post facto. Up until that time ex post facto was an obscure Latin term with no relevance to my life. An ex post facto law, is a law that in some way affects an act committed before that specific law existed (typically by condemning or punishing it). This is only one way our court system is fundamentally broken. By the time I heard about Garcetti, I had spent many tens of thousands of dollars trying to save my job, career, and reputation. Had I known that Garcetti would put new law into play, I would have never filed suit. Coincidentally, I found out about the Garcetti ruling during my last mediation. The school’s lawyer announced to my attorney that the school would offer me a $5,000 settlement. (In case you are wondering if there is a connection between the Garcetti in this case and Los Angeles Mayor Garcetti. There is.) Eric Garcetti is the son of the man who was able to convince the court to pass this ridiculous law that basically says
First Amendment apply only to a public official’s speech in a private context rather the exercise of his duties.
In other words, if you work fo r the government, you can be fired for basically anything you say at work. I wonder how Garcetti would be applied to former President Donald Trump’s speech on June 6th? After all, if I could be fired for saying, “I honk for peace,” before the war in Iraq began, he should be fired (or disciplined) for using speech to incite a riot to kill our government leaders and destroy our democracy. Sounds fair to me.
The effect of Mayer v. Monroe has been to chill speech in classrooms across the country. My attorney frequently gets calls from teachers asking for his help. His reply is always the same. I can’t help because of Mayer. It’s an excruciating burden to bear.
The effect of Garcetti v. Ceballos on government workers is even more profound. Public officials will not raise an issue on matters of public concern for fear of losing their jobs. Garcetti may be the single most corrupting factor in our government to date. My attorney friends tell me there are red flags all over that case, but for now it is the law. Nothing good can come to the individual that challenges it. It’s going to take lots of money and power to change that one, especially with this new court. It is a major reason whistleblowers require anonymity.
One important thing about Judge Frank Easterbrook who wrote the opinion in my case — before we turn to free speech issues regarding teachers talking about Donald Trump. It seems Judge Easterbrook has (had) a problem with evidence. He choses to ignore it as he did in my case. My attorney pleaded with him to consider the evidence, but he would not. Pattern of misstated facts found in opinions of renowned U.S. Judge Easterbrook .
Judge Frank H. Easterbrook of the U.S. Court of Appeals for the Seventh Circuit in Chicago is considered one of the most distinguished of United States judges.
He is among the most cited of federal judges in the country, and the judge whom the late Justice Antonin Scalia once said publicly he hoped would replace him on the Supreme Court.
So it was no small matter when Albert W. Alschuler, himself a highly respected law professor, wrote in a law review, “Judge Easterbrook persistently presents wildly inaccurate, made-up statements as unquestionable statements of fact,” adding, “The truth is not in him.”
To bad for all of us that had cases before him, we don’t get a do over. All that money, all that time, all that effort for a principle worth fighting for. For naught.
Now to the issue at hand.How to protect your free speech rights at school. What if I were still teaching today? How might teachers handle a discussion about the second impeachment of former President Donald Trump? First, make sure two foundational criteria are met. (1) Are you speaking on a matter of public concern and (2) Are you using curriculum provided by the school? If no is the answer to either of these two questions, stay away from the subject. Do not engage. If the answers to both of these questions is yes, as it was in my case, there still could be landmines ahead. Read or watch the provided materials and allow students to ask questions. For example, I can imagine that one of my bright students might say something like this: Ms. Mayer, people are saying that the defense can basically just show up in a clown car and pretend to juggle and Donald Trump will NOT be convicted. He’ll win! How can that be when all the evidence points to his guilt?
You be the teacher. How would you answer that question knowing full well you can be fired for anything, anything you say? Anything.
How would I answer this question?
I might start a discussion in the abstract about the charter of the people who uphold the law. Who are the jurors? What is their responsibility? Who are they responsible to? Is the question about the law itself? Their interpretation of the evidence? Or the allegiance of those who uphold the law? It’s a slippery slope. Keep it as general and abstract as possible. Sorry to say, but your honesty with your students goes straight out the window in this type of discussion if you want to keep your job.This is the world we live in. This is why kids are so confused about so many things. Teachers used to be able to have common sense conversations with kids to make them feel sane and safe. Not anymore. Above all, record everything for your own protection. Be careful out there!
So how is everything turning our for me? I was never able to work again. The ACLU had warned me that suing my employer would make it impossible for me to get another job. I did not believe them at first But it turned out to be true. I now live at the poverty level. If I make any more money than about $13,000 a year, I loose my health insurance which I cannot afford to do. So, I’m floundering. Right now I’m desperately trying to figure out a way to stay in my home when my rent is raised this year. Who would think that saying four innocuous little words, I honk for peace” could so drastically affect one’s life?
In closing, even though the past decade has been really rough for me, I have kept busy advocating for strong public schools. My biggest nemesis is Bill Gates, followed closely by all the Walton brats and Eli Broad — all of whom are hell-bent on destroying public education. I volunteer with several pro-public education grassroots groups to curb the damage done by the Billionaire Boys and Girls. I regret that my career was dashed just when I was starting to take off. What a waste. In 2008, when my case was decided, it was difficult to convince people that I hadn’t done anything wrong, that the court was screwy, and lawyers and judges were playing more dirty tricks than you can imagine. I think this stuff has become so common place these days that no one is surprised.
It’s all been too bad because I’m a really excellent educator.