Pro Bono Work Just Doesn’t Pay

For more than three years now, I’ve been working on a pro bono case arguing a point of Constitutional law. I’ve been working hard on it because I believed in the correctness of my client’s cause, I was outraged by the facts underlying the case, and because I wanted the satisfaction of arguing Constitutional law at a high level — playing with the really big boys, so to speak. I took two days out of my life here to fly to California specifically to give the oral arguments in the case back in June; a big deal for me.

Yesterday, my position was soundly rejected by the Ninth Circuit Court of Appeals. Go ahead, read the opinion — and then tell me if there is anything keeping a school from showing porno flicks to third-graders and asking them questions about it later if someone in that school thinks it ought to be part of the curriculum. What if your kid came home with a permission slip requesting your consent to give a generalized survey and you found out later that the school had shown your kid porno flicks first, and then asked how they felt about it? According to the Ninth Circuit, that’s not a violation of your Constitutional rights.

No, parents should not be able to dictate the curriculum of a school based on personal objections to some of the material being taught, but that doesn’t mean that they have to put up with someone lying to them about what’s going to happen in a non-curricular activity. Although the test was not pornographic, it was pretty strong stuff for an eight-year-old, and it was outside of the curriculum altogether.

Ah, but there I go arguing the case again. That didn’t work the first time around; why should it work now? It seems that a parent’s only constitutional right in directing the raising of his or her child is selecting public or private school — and after that, the parent’s ability to control what the kid is exposed to is checked at the door. For parents who can’t afford private school, that means that they have effectively no right at all to control what their kids are exposed to, whether it’s in class, after school, or in a private research project that has no educational purpose whatsoever.

As Bad Attitude Paralegal put it, when she read the opinion, “That’s bullshit.”

News reports of my abject defeat before the Ninth Circuit have appeared in the Los Angeles Daily News (with an accurate quote from me), the AP Newswire (with a misleading paraphrase of my statement, which was the same given to the source that fed the Daily News), Reuters, and the San Francisco Chronicle (with no quote from me). I’m also told that the story ran on NPR and that the case was discussed on Tucker Carlson’s show The Situation on MSNBC, but I haven’t found any links of that yet.

I’ve turned down the opportunity to appear on the Today Show and talk about it. (I know, you’re saying, “TL — you fool! With the prospect of being sandwiched between hard-hitting stories like this and this, how could I possibly make such a short-sighted decision?” And yet I still don’t want to do it.) The Tucker Carlson thing has apparently helped launch the story into the right-wing Outrage of the Week, and I’ve been told that talk radio is all abuzz about it. I’m a believer in the power of the courts and the value of having the courts participate in our national decision-making, so I have zero desire to provide ammunition to those who would short-sightedly defang our courts and deprive our nation of one of its most powerful butresses of individual liberties — even though I disagree with this particular decision.

My former law partner in California, who helped out a lot with the briefs and putting together the arguments, said it best when he opined that we lost because the Ninth Circuit thought that we were religious-right activists and therefore wanted to stomp us. The decision seems kind of arrogant (it was written by Stephen Reinhardt, after all) but that may just be a sour grapes emotional attitude on my part, having lost so badly.

So, all I got out of that bothersome trip to California back in June was the chance to very briefly hang out with some friends, a few packets of wild rice (that The Wife won’t eat) and a few bottles of salad dressing. I certainly didn’t come back with a trophy for my wall of honor.