The head bone’s connected to the [CENSORED]

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Thanks to the reader who passed on this very interesting opinion of the Attorney General of Tennessee. It turns out that in that state,

There shall be no public exhibition or display of Native American Indian human remains, except as evidence in a judicial proceeding.

Tenn. Code Ann. § 11-6-117. According to the definition section of the law, "remains" means "the bodies of deceased persons, in whatever stage of decomposition. . .." Tenn Code Ann. § 11-6-102 (7) (emphasis added).

The Attorney General's opinion (which, of course, is not a binding judicial determination, but still carries persuasive force) discusses, among other things, whether the broadcast of video images of such remains is against this law, and whether the display of remains in a classroom violates the law. It concludes that the broadcast of images of such remains is not illegal because

the legislative history indicates a focus on actual human remains.... In contrast, legislative discussions of the prohibition contain no references to displays of photographs or video images.... Evaluating the prohibition in light of this legislative purpose, it is reasonable to conclude that the prohibition is aimed at the exhibition or display of actual human remains....

Op. of Att. Gen. at 4.

Notice what's missing: any reference to the fact that such a prohibition would be a blatant violation of the freedom of the press provision of the First Amendment! States may prohibit the broadcast of images only where those images are obscene--which images of skeletal remains are not. When an image is not obscene, it can be banned from the airwaves only in the rarest of circumstances, and those circumstances are not present here.

The First Amendment's free speech clause, of course, applies just as much to teachers as to broadcasters, so what does the Attorney General say about the display of Indian remains in the classroom?

There is...nothing in the plain language or the legislative history...to suggest the existence of some type of "educational purpose" or "classroom setting" exception to the prohibition against exhibiting or displaying Indian remains.... [It] makes only one exception, namely as evidence in a judicial proceeding. It is therefore the opinion of this Office that the use of actual human remains in a classroom setting does contravene the dictates of section 11-6-117.

Id.

So if you're a teacher or college professor, teaching students about American Indians or archaeology, it is illegal for you to display the actual bones, no matter how old, of an Indian.

It is not clear to me what the penalty is; the law does not say whether displaying bones in a classroom is a misdemeanor or a felony. I think that means that showing these bones to students in a classroom would be a class A misdemeanor, see Tenn. Code Ann. § 39-11-114, which is punishable by up to 11 months 29 days imprisonment and fines up to $2,500. Tenn. Code Ann. § 40-35-111(e)(1). But it's possible that a violation is a class B felony § 11-6-112(b), which would mean eight years imprisonment and a fine of $25,000. Tenn. Code Ann. § 40-35-111(b)(2).

I think this is a clear violation of the First Amendment. The Supreme Court has held that the First Amendment protects the academic freedom of teachers. "‘[I]n view of the nature of the teacher's relation to the effective exercise of the rights which are safeguarded by the Bill of Rights and by the Fourteenth Amendment, inhibition of freedom of thought, and of action upon thought, in the case of teachers brings the safeguards of those amendments vividly into operation,'" the Court has said. Shelton v. Tucker, 364 U.S. 479, 487 (1960) (quoting Wieman v. Updegraff, 344 U.S. 183, 195 (1952) (Frankfurter and Douglas, JJ., concurring). See also Keyishian v. Board of Regents, 385 U.S. 589, 602-03 (1967).

The state does not have the authority to appease certain religious views, by prohibiting a teacher from discussing matters in a classroom. In Epperson v. Arkansas, 393 U.S. 97 (1968), the Supreme Court struck down an Arkansas law which prohibited teachers from teaching evolution. The Supreme Court struck this law down as a violation of the teacher's First Amendment right to teach:

Our courts, however, have not failed to apply the First Amendment's mandate [of free speech] in our educational system where essential to safeguard the fundamental values of freedom of speech and inquiry and of belief. By and large, public education in our Nation is committed to the control of state and local authorities. Courts do not and cannot intervene in the resolution of conflicts which arise in the daily operation of school systems and which do not directly and sharply implicate basic constitutional values. On the other hand, "(t)he vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools."

Id. at 104 (quoting Shelton, 364 U.S. at 487). Briefly put, "the First Amendment does not permit the State to require that teaching and learning must be tailored to the principles or prohibitions of any religious sect or dogma." Id. at 106.

It's worth emphasizing that Epperson was not primarily an Establishment Clause case. Although the Court did address that issue, and although the law was clearly a violation of the Establishment Clause, the Court relied primarily on the teacher's right to teach, as protected by the expression clauses of the First Amendment: "It is much too late to argue that the State may impose upon the teachers in its schools any conditions that it chooses, however restrictive they may be of constitutional guarantees." Id. at 107. See also Meyer v. Nebraska, 262 U.S. 390 (1923) (striking down law forbidding German language instruction as, inter alia, "interfer[ence] with the calling of modern language teachers." Id. at 401).

As one respected First Amendment scholar notes, when discussing Everson and similar cases,

In each, political decisions were at work deliberately to "contract the spectrum of available knowledge" within the public school. In each instance, the restriction was ought in order to insulate the ideological status quo from the distress that is always at risk when academic freedom is tolerated at any level of education. . . "Academic freedom embodies the principal that individual instructors are at liberty to teach that which they deem to be appropriate in the exercise of their professional judgment. . .." [A]cademic freedom. . .[includes] access to and the benefit of each teacher's best professional, good faith judgment, understanding, and skills.

William W. Van Alstyne, Academic Freedom And The First Amendment in The Supreme Court of The United States: An Unhurried Historical Review, 53 Law & Contemp. Probs. 79, 150-53 (1990).

The Tennessee law violates the First Amendment rights of teachers by forbidding them from displaying relevant, important material to students in an appropriate setting. Although some might argue that it is not very restrictive, because it permits the display of photographs in a classroom, this does not save the law, because the actual inspection of actual bones is an irreplaceable method of research for many legitimate scientific purposes. Just as it would be improper for the state to prohibit the display of, say, an American flag, or a Christian cross in the classroom, even if it permitted the teacher to draw American flags or to describe crosses, so it is improper for the state to prohibit the display of actual (legitimately obtained) human remains.

13 Comments

But the implication of that wording would also be that you couldn’t display Indian bones in a museum. They don’t have museums with bones in them in Tennessee?

The prohibition does apply to museums as well. As the Opinion of the Attorney General notes,

[T]he legislative history…reveals discussion specifically concerning the prohibition against the public exhibition or display of Indian remains. This discussion confirmed the understanding that the 1990 amendments prohibited exhibition of “bones, skulls, and so forth.” In testing the limits of the prohibition, a question arose as to whether the 1990 amendments would prohibit exhibition of skeletal remains “wrapped like a mummy,” apparently out of concern that the Tennessee State Museum exhibited a mully of some kind.… Senator Henry responded that the bill was intended to prohibit such a display.

Id. at 3 (citations omitted, emphasis added).

Hard to believe, but this law was actually written specifically to prohibit museum displays of scientifically important archaeological finds, solely to placate the religious sensibilities of some American Indians.

Does anyone know what actually prompted the passing of this law? Or is this simply a case of an attorney general who cannot stand the thought of ‘displayed remains’.

Does anyone know what actually prompted the passing of this law?

The unethical way that anthropologists used to get their remains.

Well, not specifically, but these sorts of laws are generally passed out of concern for the religious sensibilities of some American Indian activists, just like NAGPRA and the Campbell Amendment to NAGPRA.

Keep in mind that the Attorney General’s opinion in no way constitutes an endorsement of the law as policy; the Attorney General may think the law is stupid; he was just asked what the law requires. It’s the legislature that “cannot stand the thought of ‘displayed remains.’”

Reed Cartwright is correct that Indian skeletons were frequently taken in ways modern scientists regard as unethical. But the objectionable nature of the law as a prior restraint that I’ve discussed in no way affects that sort of behavior. Other sections of the law regulate the manner in which excavations take place (which might also be problematic, but I won’t dwell on them here). This section of the law forbids display, and is therefore too distant from the concerns about the manner of getting remains to satisfy the strict tests required by the First Amendment.

Now, there are also many people who are offended by what they consider the unethical manner of displaying remains in the past, but such offense cannot have any greater legitimacy than the offense taken by Christians against art they consider blasphemous. If people are outraged against a museum displaying human remains, their proper recourse is to picket the museum, not to send people to jail for displaying those remains.

A reader just emailed me to point out that the plain language of the law would seem to also forbid open casket funerals for American Indians who happen to wish them. That does appear to be true. Although the Attorney General’s opinion strongly ties the interpretation of the law to the legislative intent, legislative intent is only properly consulted when the language is ambiguous, and the language here is not ambiguous. While prosecutors would probably not act against an Indian (or a descendant of them–to what degree of remoteness, the statute does not say), I see no reason that such funerals would be beyond the reach of this law!

What ancestry does someone have to have, to qualify as an “Indian”? This sounds a bit like being defined as “negro” - is it 1/8 or 1/16 or whatever? If somone has a 100% Indian parent and a 0% Indian parent, how do we decide which half of the body can be displayed?

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…”the bodies of deceased persons, in whatever stage of decomposition . …”

Does that also mean it is illegal to display carnivores who may have eaten ‘deceased persons’?

If the bones of the eaten person are visible in the display, yes. If the person has been digested, so that only the remains of the carnivore are visible, then I think that would be too extreme a reading of the law.

Tenn. Code Ann. § 11-6-117. According to the definition section of the law, “remains” means “the bodies of deceased persons, in whatever stage of decomposition . …” Tenn Code Ann. § 11-6-102 (7) (emphasis added).

Do they define “decomposition”? What about displaying predators or parasites who may have eaten humans?

No, the law doesn’t define decomposition. I think displaying predators would not be prohibited.

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This page contains a single entry by Timothy Sandefur published on January 8, 2005 2:45 PM.

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