When my son Charlie was in the fifth grade, there was a special project at his school, Cypress Elementary in Cedar Park, Texas 78613, on the importance of “Law Abidingness” as a virtue. I did volunteer teaching in the school in biology, geography, American history, natural history, world history, Spanish and French from time-to-time, and so I thought it was probably OK for me to have an opinion on such things. So, naturally, as was my custom, I immediately went in to see the principal to inform her that there was, in none of five major hard-bound English dictionaries I just happened to keep by my bed at night, any such word as “Abidingness”–for Law or anything else. I also suggested that any valid school discussion of the importance of—what I would call—“conformity” with the law should be accompanied by a discussion of “when is it acceptable to break a rule, violate a law?” I also suggested a discussion of whether law was made for man or man for the law… I know that she was annoyed, but listened politely, and as was HER custom, pretty much ignored everything I said, except to circulate a memorandum to the teachers that “Law-Abidingness” was not a word in the dictionaries and should be explained in other terms to the students. I guess I’d chalk that up as a 24% victory.
In any case, this episode from the Palaeolithic, possibly the Palaeozoic, past came to my mind when I listened to Medina Valley ISD School Superintendent Chris Martinez and Texas Attorney General Greg Abbott discussing the “Graduation Prayer Crisis” brewing near Castroville west of San Antonio in the Good Old Western District of Texas: https://www.oag.state.tx.us/oagnews/release.php?id=374; https://www.oag.state.tx.us/media/videos/play.php?060211schoolruling&id=435
Chris Medina promised to obey the Honorable Fred Biery’s Amended Order (Judge Biery’s Amended Order of June 1 2011) and his promise contained these telling words, “As Educators, we are the Ultimate-Rule Followers.” I have for a long-time been debating whether there are any possible virtues or benefits remaining in public education, and I think that Medina ISD Superintendent Chris Martinez may just have convinced me that there are none.
I idolize Thomas Jefferson in many ways, and Thomas Jefferson advocated public schools (but not necessarily “compulsory” public education), but even the Gods are sometimes wrong, and I can forgive Thomas Jefferson one or two errors or even downright disgraceful conduct (including his affair with his slavegirl, Sally Hemings) in a life which otherwise changed history for the better.
Yea, verily, the Fifth Circuit let the Medina Valley ISD off the hook at the last minute, but Judge Fred Biery’s threat of incarceration for prayer needs to be publicized everywhere—it needs to become a rallying call for advocates of free speech all over the world, not just in Texas and the United States. I wish the Fifth Circuit had allowed Judge Biery’s order to stand and that teachers and students alike had been forced to defy the order—
“Blessed are ye when they shall revile you, and persecute you, and speak all that is evil against you, untruly, for my sake:” Darby Bible Translation …
But, aside from whether Chris Martinez should not have aroused his students to stand up and risk Fred Biery’s threat of “Jail for Public Prayer at Graduation”—because it would have been healthy and salubrious to the national soul if he had, I have an issue or two I’d like to discuss with both Greg Abbott and Chris Martinez arising from this case. I can see the headlines now: “Jail for Prayer? Praying Students & Speakers Taken in Shackles by US Marshals for Deportation to Guantanamo Bay and/or FEMA camps”—it would have been a glorious day. The FIfth Circuit, naturally, weaseled out of making any hard decisions, dissolving the Temporary Restraining Order at the last minute before graduation on the grounds that they were not convinced official school conduct was involved. But see the Schultz’ application for TRO here: Schultz Application for TRO—to Judge Fred Biery re MEDINA VALLEY
At implicit issue in Greg Abbott’s commentary on the Medina Valley ISD situation is an almost inevitable tension between two clauses of the First Amendment to the United States Constitution: the Free Speech/Freedom of the Press clause, on the one hand, and the Free Exercise/Anti-establishment clause on the other.
Looking through the two versions of Judge Biery’s Orders and the impressive list of citations contained therein, it is easy to see how the Judge found that the Schultz’ might have shown a “likelihood of success on the merits.” Judge Biery’s Original June 1 2011 Order in Schultz v Medina Valley.
This case has only just begun, and once it reaches trial, en banc review in New Orleans, and finally the Supreme Court, it seems inevitable that Shultz v. Medina Valley ISD and Judge Briery’s threat of incarceration to disobedient “prayers” will be revived as periodically, politically, necessary or expedient to distract the ignorant masses from really important points. Schultz v Medina Judge Fred Biery WDTEX Docket Report as of June 3 2011. And talking of ignorant masses, I wonder just how Michael P. Davis, Jana Duty, Laurie J. Nowlin, and James Carlton Todd are doing these days, and whom they are persecuting this week in Williamson County?
As an aside: I cannot escape the feeling that there is a depressing real-politik (“zeitgeist-“ly?) association between the Indian Subcontinental-Indian Ocean sounding name of the Schultz’ lawyer, “Ayesha N. Khan”, and the fact that our current sitting, de facto President appears to have been born close to the waters of the Indian Ocean in Mombasa, in the Coastal Province of British East Africa, a subject of her Majesty Queen Elizabeth, II, whom I admire greatly, even if I cannot say the same either for her late uncle the Duke of Windsor or the even more absurd marital exploits of her children and grandchildren—not much in the way of royal role models I fear.
What I need to discuss and possibly debate with Chris Martinez is simple: is it REALLY a good idea to teach students to obey unjust laws? “As Educators, we are the Ultimate Rule-Followers.” THIS PHRASE ALONE, to my mind, justifies the complete abolition of public schools everywhere—at least the abolition of MANDATORY or COMPULSORY public education—because in this phrase alone, THE SPIRIT OF THOMAS JEFFERSON HAS DIED.
Rather, if these were Jeffersonian Schools, we should teach students that this country was BUILT on revolution, that it falls to each generation to move the revolution farther along, or at least to restore lost freedoms. And we should, in particular, that freedom and democracy can only survive if revolution be continued—not “institutionalized” as they tried to do in Mexico—the Partido de la Revolucion Institucional” was a failure, at least as far as revolutionary spirit goes—but actually continued and renewed (as Jefferson suggested, in each succeeding revolution) by a constant state of something which can only be called “revolution = rapid evolution” or perhaps even “self-controlled anarchy.” The government should exist ONLY to minimize bloodshed and maximize freedom in this process—not to prevent it by enforcing unjust and anti-Constitutional rules. Mr. Martinez, or any other school educator, I await your call….notify me through Peyton at 512-968-2666—“Fear Not the Devil or his Mark—the Coward Flees from all who call out his name to Fight.”
To Greg Abbott—I have a much more personal, and yet much more politically sensitive—bone to pick with you. Throughout the five and a half years 2003-2008, you and your office persecuted me in Texas (along with anyone who worked with me, including but not limited to Francis Wayne Williams-Montenegro, Valorie Wells Davenport, Rhonda Moe and her family, Dan Simon, John Henry Franks, etc.). This all culminated with a March 25, 2008 injunction against me for entered by Judge Walter S. Smith, U.S. District Judge and then Chief Judge of that same Western District of Texas, preventing me from making any further filings against the constitutionality of the Texas Family Code or Texas Family Courts, until and unless I pay $150,000.00 (payee unspecified).
But Mr. Abbott, I find myself moved by and in agreement with your words concerning Judicial overreaching and the war on morality and decency being fought in the Courts. What I want to know is: if you believe that Judges should not have the right to restrain freedom of speech under the First Amendment, why did you and your office, especially Deputy Texas Attorney General James Carlton Todd, fight me in action after action starting in June 2003 in both State and Federal Court in Austin and Georgetown, Texas when I asserted exactly the same thing?
Judge Michael Jergins had no lengthy list of case citations comparable to Judge Biery’s when he, on September 18, 2001, enjoined me NOT from discussing religion with my son, although that was implicit, but from discussing my son’s health and happiness with my son after he was return to a woman who, at that time, seemed very vengeful and intent on harming our son?
Why did you assign your Deputy Attorney General James Carlton Todd to fight me, almost non-stop, for those five and a half years to prevent us from obtaining any limitation on a Family Court Judge’s power to invade our home and inquire what we discussed over breakfast or dinner or at night after homework before bed? Why did you allow Laurie J. Nowlin, as Jergins’ appointed Guardian ad Litem, to challenge my fitness as a Father when I started training to become a scoutmaster in my son’s Boy Scout Troop? Why did you defend the position that State Court Judges can enter orders violating fundamental civil rights by entering “gag” orders (injunctions against freedom of speech—prior restraint censorship), backed by threats of incarceration without following the procedural safeguards outlined by both the United States Supreme Court: Nebraska_Press_Association_v_Stuart_1976 or the Texas Supreme Court: Davenport v Garcia 834_S_W_2d_4 (Texas June 17 1992).
Davenport v. Garcia is really and truly one of the great pro Freedom of Speech (and anti-Judicial abuse) decisions in U.S. History I think. I was privileged, later on, to work with Valorie Wells Davenport, the Plaintiff in this case, who ran and almost unseated Nathan Hecht, one of the most repressive and reactionary of all Texas Supreme Court Judges, in 2000. It shames me to think how unaware I was in 1992 of everything that was going on in the United States of America—1992 is the year I finished Law School at the University of Chicago, took and passed my first Bar Exam (in Florida), started working for the Honorable Kenneth L. Ryskamp, United States District Judge for the Southern District of Florida, and was offered a job at the Law School of the University of Miami, Coral Gables, which at my wife’s urging I did not take—she wanted me to move to Cadwalader, Wickersham, & Taft (although she didn’t know that my destiny involved Securitized Mortgages—first creating them, then fighting them). That year, 1992, I thought, “I had a life” even though I didn’t realize just how fast my world was dying….
But, returning to Nebraska Press Association v. Stuart and Davenport v. Garcia, the bottom line is that No Judge May EVER enter any order of prior restraint on Freedom of Speech without following certain procedural safeguards to determine that such restraints are, after careful reflection, both necessary and proper to their intended purpose—this is now generally called “strict scrutiny review” of any law or order restricting the exercise of fundamental freedoms guaranteed by the Bill of Rights.
So Greg Abbott: I challenge you to come out and fight me on the field of honor by debate—my glove is on your doorstep—will you dare to open it up and fight like a man? Because of your words regarding Judge Briery I believe you are a worthy opponent. In challenging you today I am not threatening a battle of wits with an unarmed opponent I do not this—you have at least some wits about you.
I challenge you to explain why Judges should be absolutely immune from suit for infringing upon fundamental, expressly guaranteed constitutional rights. I challenge you to show me that mere political advantage is not the key the difference in your stance on these cases. I challenge you specifically to show me how you can be correct about Schultz v. Medina Valley ISD if I were wrong about Lincoln v. Jergins, Lincoln v. Williamson County, and yes, Simon v. Abbott….in which your office approved entry of draconian sanctions against me in a case to which I was neither a party nor witness.
Mr. Greg Abbott, I ask you: Would it be beneath your dignity to debate a disbarred and sanctioned attorney? Would it be stepping too far down off your perch to debate publicly with me: a fellow-“natural born” citizen of your state whom you and your office, the United States District Courts in the Western and Southern Districts of Texas, and more than one Texas State District Court in your state have “hated, rejected, despised” trying your best to make me into a man of sorrows and acquainted with grief?
This is not just a matter of honor, this is a matter of Truth, Justice, and the American Way. Do those words mean anything to you? Or are they just a dream, flickering shadows in the walls of a cave lit only by torches, where the light of day is never seen?
(I have sent this letter to Messrs. Greg Abbott and James Carlton Todd by e-mail as follows: Gregg Abbott <email@example.com>; James Carlton Todd <firstname.lastname@example.org>; these are their on-line published e-mail addresses).