LOVE Group stays out

From the Argus

The Livingston Organization for Values in Education’s political action committee has decided not to endorse any candidate in the campaign for the Howell Public Schools Board of Education.

Vicki Fyke, founding member and spokeswoman for LOVE, said Monday that the group decided not to endorse any of the candidates because “we don’t know any of them.”

Interesting timing. Vicki was at the debate last night, and this release of "no endorsement" is out the day after all the candidates distanced themselves from LOVE. Maybe they did not care for what was said at the debate.

I've also heard rumors of new write in candidates as well, but apparently that was either not the case, or abandoned due to an unlikely chance to win.

Hopefully, whoever wins, the controversies will end with an acceptable solution.

Howell Schools: Case Closed

The Feds and AG Mike Cox are not going to prosecute.

"The material complained of was thoroughly and carefully reviewed by the FBI and this office. We have concluded that the material submitted, nor its inclusion as part of the schools required English curriculum constitutes a violation of federal law," the decision stated.

And on the state level, the decision on the Argus website.
Posted here

That ends the legal fight over this issue.

Morse : Howell Schools didn't break law

From the Argus

Morse: Books don’t break law

County Prosecutor David Morse has ruled that the books causing a controversy at Howell High School do not violate any state law.

He was asked to investigate several books by Vicki Fyke of the Livingston Organization for Values in Education last month. But in a letter to Fyke sent Monday, Morse said the teachers disseminating the books are exempt from laws against distribution of sexually explicit material to minors because the curriculum was approved by the Howell Public Schools Board of Education.

(snip)

I think Dave Morse and his staff handled this well. While the paper, which has a clear agenda on this, will give him hell for waiting a couple of weeks, I'm glad he and his staff took their time to research the facts and did not make a rash decision.

I didn't look at the school code since it would take too much time. Morse believed that the exception covered the law. He also covered the non-exemption and used a standard similar to the legal definition of pornography. He either read the statute different than I did, wanted to use that standard to gain a conviction if he prosecuted, or wanted to make sure it could survive a constitutional challenge. I do not know which. There is no legal case law on the state level that I saw defining "explicit matter." An attorney I know has the following saying to gun owners when there is a unclear law "Don't be a test case". It looked as Morse was cautious here and did not want Howell Schools and Livingston County to be a test case. I agree with him on his decision not to prosecute as I do not believe it would withstand a constitutional challenge. I'll take his word for it on the school code exemption as I was not sure of that and didn't have enough time to find out.

I have not read the federal statutes. If I have extra time, I will.

As for appropiateness of the books themselves for school curriculum - I believe some are and some are not. I do not believe "Bluest Eye" belongs as part of the curriculum. I don't have a problem with "Slaughterhouse 5". My own stance is somewhere in the middle between the LOVE Group and the School Board. My major problem is with the process involved in the approval. All the reviews are from "professionals" and from the ivory towers and there is not the checks and balances from the citizenry. If there was, I doubt we would have the controversey to begin with and we can get back to the meat and potatoes issues facing the schools - budgetary and financial concerns. I also think part of this was due to personal animosity between the Board/Admins and LOVE Group. If all sides got together and sat down and discussed these matters coming to an agreement, I don't think this would have been the media circus it turned out to be. A little leadership, especially by the school, would have gone a long way.

At worst, this was a good learning experience for law school.

As Howell Schools Turn

The Feds are now investigating.

From the Argus

Allegations that Howell Public Schools teachers are violating pornography laws by assigning certain books to high school students have been referred to the FBI.
The office of U.S. Attorney Stephen J. Murphy III has sent the matter to the FBI, spokeswoman Gina Bilaya said, after receiving a letter from Vicki Fyke of the Livingston Organization for Values in Education, or LOVE.

Bilaya said it was a routine move; "We do it with all complaints," she said.

But she also said Fyke was right in assuming that federal prosecutor was taking the issue seriously.
"Absolutely," Bilaya said. "We're going to look into it."

She estimated it would take a couple of weeks or a month to finish the investigation.

An advocacy group is firing some warning shots Here

I haven't checked the Federal Statutes yet. Federal law is different than state law. There's a few things I'd have to look at to see if there's (in my own opinion) a federal case under that statute. A big hoopla is being mentioned about the FBI getting involved. That's a bunch of bluster for nothing. All that is being done is an investigation to see if there is a federal case or not. We want our prosecutors and US Attorneys to make informed decisions on matters, don't we? If there's no case under the law, then I have no objections to a dismissal.

Personally, I am concerned from a 10th amendment (the one everyone disregards due to abuse of the Commerce Clause) standpoint as this should be a state level issue. That's a whole other discussion however. Whether one thinks the law itself is badly written or whether the penalties are appropiate are another discussion as well.

As far as the state issue - there's also a misconception in the papers and elsewhere about state statute 722.675. The statute itself does not mention Obscene matter or Pornography. It mentions explicit material. That's a big difference and needs to be mentioned.

In the end on this legal matter, it doesn't matter what I think, what the public thinks, what the papers think, what the Love Group thinks, or what the School Board thinks. The big key is what the prosecutor thinks, and what the judges and jury - if any - think. This is now a question of law, not a question of policy.

Howell controversey - Is there a case?

Update from Last Howell update

Is there a case of prosecution? From what I have seen, looking at it as objectively as possible, probably not. A surprise to me is that there is little to no precident that I have found. I MAY find some if I did more digging through my Westlaw access, but I don't have ten hours of free time to devote to this.

There are two series of statutes which may fit.

750.142 and 750.143: are one section of statutes

750.142 Furnishing obscene publications or criminal news to minors.

Sec. 142.

A person who sells, gives away or in any way furnishes to a person under the age of 18 years a book, pamphlet, or other printed paper or other thing, containing obscene language, or obscene prints, pictures, figures or descriptions tending to corrupt the morals of youth, or any newspapers, pamphlets or other printed paper devoted to the publication of criminal news, police reports, or criminal deeds, and a person who shall in any manner hire, use or employ a person under the age of 18 years to sell, give away, or in any manner distribute such books, pamphlets or printed papers, and any person having the care, custody or control of a person under the age of 18 years, who permits him or her to engage in any such employment, shall be guilty of a misdemeanor.


History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.142 ;-- Am. 1972, Act 14, Imd. Eff. Feb. 19, 1972


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750.143 Children; exhibition of obscene matter.

Sec. 143.

Exhibition of obscene matter within view of children—Any person who shall exhibit upon any public street or highway, or in any other place within the view of children passing on any public street or highway, any book, pamphlet or other printed paper or thing containing obscene language or obscene prints, figures, or descriptions, tending to the corruption of the morals of youth, or any newspapers, pamphlets, or other printed paper or thing devoted to the publication of criminal news, police reports or criminal deeds, shall on conviction thereof be guilty of a misdemeanor.


History: 1931, Act 328, Eff. Sept. 18, 1931 ;-- CL 1948, 750.143

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There has only been one case I found that covered those two statutes. Butler v. State of Mich. (352 U.S. 380), (77 S.Ct. 524) This was a Supreme Court Case from Feb 25, 1957. Due to copyrights, I can not reprint the whole decision unless it is found in the public record. An individual was convicted under this statute (sold a book to a cop, not a kid) and the conviction was overturned on 14th Amendment and Due Process grounds. It's not an exact precidence, but I suspect that charges under these two statutes would be dismissed based on the only precidence so far - the Butler decision.

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The other statute section refers to 722.675.

However, Section 5 of 722.675 has an exception spelled out in 722.676. The question is this. Does it comply with the the revised school code and is part of a "school program permitted by law?"

While there is precidence of 722.675, not that I have found related to school programs. Cyberspace Communications, Inc. v. Engler however declared the internet and cyberspace portion (1999 amendments) of that statute unconstitutional on 1st Amendment Grounds.

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Disclaimer - I'm not yet an attorney, nor did I spend the night at a Holiday Inn Express. This is not legal advice. However, based on what I have read by statute and precident, as well as common law principles of vagueness in how stautes can be read, I don't expect to see a final conviction against school officials for these books. That said, I'm not the prosecutor, nor a judge or juror. Those three elements make the final decisions on this matter unless there's a change in statute.

Latest from Howell Schools

The fight over the books in Howell Schools (mostly found at Board member Wendy Day's Blog) has taken another twist. Vicki Fyke, leader of the LOVE Group, has asked Prosecutor David Morse investigate whether the law was broken.

From the Argus

Prosecutors still have not responded to Vicki Fyke's initial allegations that the Howell school system's use of several controversial books in a high school class may violate state laws against the distribution of pornography to minors, and now Fyke and her group are raising additional issues about the texts.
Fyke and the Livingston Organization for Values in Education have asked Livingston County Prosecutor David Morse to look into more aspects of the books' assignments in the high school, including whether support staffers — bus drivers or janitors, for example — could be breaking any laws if they give the books to students.

"It's very possible that a student might leave a book on a bus, and they might pick it up and hand it back," Fyke said. "They're actually passing out stuff that no other person could."

Fyke has also asked Morse to see whether any laws on racial slurs or violent material may apply.

I'm glad to hear that Dave Morse is reading the books in question before making a prosecuting decision.

There are five possible scenarios that may happen here.
1. No laws were violated.
2. There's a grey area, and Mr. Morse decides to prosecute.
3. There's a grey area, and Mr. Morse declines to prosecute.
4. Laws were violated, and Mr. Morse decides to prosecute.
5. Laws were violated, and Mr. Morse declines to prosecute.

I'm going to do some digging on any precedent, if there is any. There are two aspects to look at here. The first is statutes. The second is any previous court cases. Criminal law is traditionally narrowly defined. We'll see what happens here.