Thursday, April 30, 2009
Silence, Prayer and Other Activities
“All I want out of you is silence, and damn little of that.”
— A Whaler’s Captain addressing a crew member. Zephaniah W. Pease, The History of New Bedford
It is time for an update on silence. It’s back. A quiet subject, it nonetheless leads to raucous debate and seems reluctant to be what its name suggests. Silence, it turns out, is sinister. To those fearing prayer in the public schools, a threat-to prayer’s supporters, a boon.
One of silence’s early appearances in the courtroom as a legal principle rather than a matter of decorum came about in the early 1980s. It was brought to the courthouse by the ACLU. In 1982 the ACLU sued the New Jersey State legislature, a body that in its wisdom (and lacking other worthwhile activities) legislatively decreed that all children in school should be silent one minute each day. The ACLU thought this a bad idea and brought suit. I applauded its actions since, having four children, I thought it absurd to legislatively decree only one minute of silence from the young. It seemed to me a law imposing silence on the young should at the very least prescribe one hour of silence each day (during waking hours) at a time to be determined by the parents. The ACLU, however, not having any children of its own and not sensitive to the noise produced by them, sued, not to extend the time as I had hoped but to eliminate the legislatively proscribed silence.
The grounds for the ACLU’s suit (grounds that could only be asserted by the childless) is that one minute of silence in the school room can lead to one minute of prayer, an activity that is proscribed in the school room. Ignored by the ACLU and the courts that have considered the issue, is that one minute of silence in the average school room is not enough for the children to get their thoughts organized enough from the chaos that preceded it to enable them to get even one quick prayer off to heaven. (The plaintiffs in the Texas case also faulted the statute saying it caused excessive government entanglement with religion by requiring that teachers regulate student behavior to ensure silence and no distractions during the moment of silence. Presumably the plaintiffs would not object to teachers telling the children to be quiet if they were not limiting the silence to the feared “one-minute.”)
Accepting the position of the ACLU, the U.S. Court of Appeals for the Third Circuit struck down the “minute of silence” statute. In so doing it was following the example of the U.S. Supreme Court that had struck down a “minute of silence” statute that came from the state of Alabama. In both cases the “minutes of silence” were stricken for, among other reasons, the fact that the statutes lacked a secular purpose. Notwithstanding these dual defeats, silence continued to proclaim its right to be heard in a variety of lawsuits, the most recent of which came from Texas.
On March 19, 2009, the Fifth Circuit Court of Appeals affirmed a lower court decision finding that Texas’s most recent statutory amendment pertaining to quiet in the schools passed constitutional muster and in so doing gave some good guidelines to those seeking to introduce silence to the classroom even if only by the thimble full. The guidelines mandate putting in the kinds of things children can do when quiet in addition to sending thoughts heavenward. In this case the statute provided that: “ During the one-minute period, each student may, as the student chooses, reflect, pray, meditate or engage in any other silent activity that is not likely to interfere with or distract another student. Each teacher or other school employee in charge of students during that period shall ensure that each of those students remains silent and does not act in a manner that is likely to interfere with or distract another student.” That is a really nifty statute since it gives the student options. It would have been an even better statute if it had added other things like suggesting that during the minute of silence the kids could practice their “times tables” or their “less thans” or “more thans” or worked on recalling the names and birthdates of the kings and queens of England. Although inclusion of the purposes to which the minute can be put is inserted to satisfy the courts, it has a useful purpose as far as the student is concerned.
The typical child would view an imposed undefined moment of silence as simply an interruption in his or her daily routine similar to the interruption the child is accustomed to on television and would assume the moment should be filled with commercials, which is what one-minute interruptions are usually for. Once informed of all the great things that can be accomplished in a minute of silence children and parents alike will welcome its introduction into the classroom. Silence will be grateful that it has been permitted to return to its natural state.
Wednesday, April 15, 2009
Beauty and the Vegetable
Beauty is truth, truth beauty,-that is all
Ye know on earth, and all ye need to know.
— John Keats, Ode on a Grecian Urn
It is refreshing to have a bit of silliness introduced into a world consumed by weighty problems seeking resolution. For our examples we turn to West Virginia and the European Union. West Virginia is concerned with beauty and the European Union is concerned with ugly.
The voice for West Virginians concerned with beauty belongs to Jeff Eldridge of West Virginia, a member of the House of Representatives of that fair state.
On March 3, 2009, Mr. Eldridge introduced House Bill 2918. The summary of the Bill says it is a bill banning “the sale of ‘Barbie’ dolls and other dolls that influence girls to be beautiful.” The bill provides that “It shall be unlawful in the state to sell “Barbie Dolls” and other similar dolls that cause girls to place an undue importance on physical beauty to the detriment of their intellectual and emotional development.” The Bill has been assigned to the Judiciary Committee where, as of this writing, it resides, if not languishes.
Mr. Eldridge’s goal, apparently, is to give Barbie a birthday present she’ll not forget-banishment from the state. On March 9 she celebrated her 50th birthday. Mr. Eldridge believes that even though during Barbie’s lifetime women have achieved much many would not have believed possible on Barbie’s birthday, they would, nonetheless, have gone to greater heights but for Barbie’s pernicious influence.
Springing full blown from Mattel’s womb, Barbie did not have to wait until she grew up to wield her evil influence on girls. She started the minute she saw the light of day. And a devastating influence it’s been. As Mr. Eldridge explained: “Basically, I introduced legislation because the Barbie doll, I think, gives emphasis on if you’re beautiful, you don’t have to be smart.” If any beautiful woman happens upon this column she can decide for herself whether or not she has forsaken brains for beauty. All that said, it’s clear Mr. Eldridge would applaud the recent actions of the European Union. Beginning in July 2009 “ugly” will be in and “beauty” will be out. It started one year ago.
For many years the European Union has enforced strict rules not only on the quality of fruits and vegetables but on their appearance. The rules dictate the acceptable colors of leeks, the angle of repose of cucumbers as well as carrot’s shapes. The rules apply to cherries, onions, peas, plums and countless other vegetables. According to a report in the Times on Line tons of fruits and vegetables are discarded each year due to absence of beauty or ideal size. Tim Down, a Bristol UK fruit and vegetable wholesaler experienced the consequences of these rules first hand. He “was forced to throw away 520 Chilean kiwis after being told by the Rural Payments Agency that they did not meet “industry standards.” Some of the kiwis were 4 grams less than the prescribed weight. Talking to Food Navigator Mr. Down said standards should be implemented in sensible ways. “How anyone ever sat down in an office in Brussels and got paid an enormous amount of money to decide on the correct curvature of a cucumber beggars belief.” Mr. Down was referring to Commission Regulation No. 1677/88 of June 15, 1988.
Commission Regulation No. 1677/88 sets the beauty contest rules for cucumbers. Addressing Class I cucumbers and their beauty, the Regulation specifies that they must “be reasonably well shaped and practically straight (maximum height of the arc: 10 mm per 10 cm of the length of cucumber)”. If they are slightly crooked (also defined by reference to their arc) they may be sold if otherwise “cosmetically perfect.” If they fail that test they must be destroyed or shipped off for processing where beauty is not an issue. Carrots may not be forked and must be free from secondary roots. According to a report from the BBC magazine as a result of the focus on beauty in the fruit and vegetable world “tones of perfectly-edible produce across the EU is thrown away so that when you walk into the supermarket all you see is rank after serried rank of cosmetically perfect fruit and vegetables.” Thanks to the actions of the EU a significant number of members of the fruit and vegetable kingdom will no long depend on their beauty to find acceptance on grocers’ shelves.
In November 2008 the European Commission decreed that effective July 1, 2009, consumers “will be able to purchase 26 items including onions, apricots, Brussel sprouts, watermelons and cauliflowers with as many knobs, bumps and curves “as they like”:http://www.foodanddrinkeurope.com/Retail/EU-scraps-regulations-on-forbidden-fruit.” Bananas, however, will still be regulated and must be “free from abnormal curvature of the fingers.” Acknowledging that beauty contests for bananas might also warrant revisiting, Michael Mann, the EC’s agriculture spokesperson told FoodNavigator: “Perhaps we will come back to bananas in the future.” While applauding the actions of the EC in permitting the sale of fruits with offensive bumps and curves, Mr. Eldridge no doubt hopes his legislature will ban Barbie because of what he perceives to be her offensive bumps and curves.
Wednesday, April 8, 2009
Cigarettes and Reporters and a U.S. Senator
All successful newspapers are ceaselessly querulous and bellicose. They never defend anyone or anything if they can help it; if the job is forced upon them, they tackle it by denouncing some one or something else.
—H.L. Mencken, Prejudices, First Series
If they don’t get a Pulitzer it won’t be for want of trying. Raymond Hernandez and David Kocieniewski (RADA)of the New York Times did a brilliant job of letting the public see the dark side of Kirsten Rutnik , now known as Senator Kirsten Gillibrand, when she was a baby lawyer in a large law firm. We can only be sad that RADA were unable to complete their journalistic voyage into the early days of her legal career before she ran for any office, much less was appointed to the United States Senate by New York’s Governor David Paterson. If they had been able to do that she would probably still be laboring in a law office assisting those who offend society instead of offending RADA by her presence in the United States Senate.
What RADA discovered (and reported on in a manner worthy of a PhD dissertation) was that Ms. Rutnik represented, zealously, a tobacco company. Not just any tobacco company-Philip Morris, a company recently in the news when the United States Supreme Court refused to consider the company’s appeal of a $150 million punitive damage award won by an Oregon woman against the company.
In the second paragraph of their report RADA set the stage. They report that in 1996 the Justice Department believed tobacco industry officials had lied to it and wanted to obtain company research to prove that. Instead of assisting the prosecution by telling Philip Morris to confess the error of its ways, Kirsten Rutnik, lawyer, represented her client. She took the position that the government was not entitled to the documents it was seeking and helped the company resist the government’s efforts. Although RADA are offended by her diligence they cut her a bit of slack later in the report when they observe that notwithstanding her efforts on behalf of her clients: “there is no indication that Ms. Gillibrand ever discussed the case with . . . the Philip Morris president and chief executive who was among the subjects of the perjury inquiry.” (Since she was a relatively young lawyer that may surprise some less than it surprised RADA.) Lest anyone think that gets her off the hook, however, they add: “But Philip Morris internal records show that the company’s top lawyers entrusted her with several essential elements of the case.”
Ultimately the companies were successful and, according to RADA’s report “beat back the federal perjury investigation, a significant legal victory at the time” but, and here is the bit that gives us insight into the nefarious character of the Senator, “not one Ms. Gillibrand is eager to discuss.”
RADA do not stop there. They observe that Ms. Gillibrand “plays down her work as a lawyer representing Philip Morris, saying she was a junior associate with little control over the cases she was handed and limited involvement in defending the tobacco maker.” RADA have examined thousands of documents and interviewed dozens of lawyers and write that as a result of that work they can see that she was involved in some of the “most sensitive matters related to the defense of the tobacco giant. . . .”
Some might assume that this is a conclusively damning indictment of the Senator since we all know that cigarette companies are per se evil and anyone who tries to block the waiter who is serving them their just desserts is like the client, per se evil. Having said that, however, we have to acknowledge that murderers are entitled to zealous representation even when the murderer’s lawyer knows that the client is guilty. The criminal is entitled to a defense. We are, therefore, relieved to learn that RADA are not insensitive to this professional obligation. They observe that lots of U.S. senators who were once lawyers, defended unpopular clients in the course of their careers. However, and here is where they catch Senator Gillibrand out, RADA were told by one of her former colleagues that lawyers at her law firm “were permitted to decline work on the tobacco cases if they had a moral or ethical objection to the work”. Had the Senator been a decent young lawyer, RADA’s reporting suggests, she would have said to her superiors that she would have nothing to do with a company as scurrilous as Philip Morris. Confident of her ability, she would have been confident that declining to undertake the assigned task would have no effect on her future in the firm.
Pursuing their inquiry further, RADA asked Matt Canter, the Senator’s spokesman, whether the Senator had any misgivings about representing the tobacco companies. He responded, noncommittally, that she “worked for the clients that were assigned to her.”
I’d say RADA gave her the benefit of all possible doubts. Their case is, nonetheless, overwhelming. The Senator is not qualified to hold public office. But for RADA we’d never have known.