that standing on a desk could lead to sitting on a plane? Three weeks later we fly to San Francisco to go before the Ninth Circuit Court of Appeals.
It almost didn’t happen. When Mr. Kalman found out it would take 180 days and Alistair finger-counted all the way to summer, we practically gave up. Mr. Kalman said he wasn’t sure he would even live that long. And we couldn’t appeal without our lawyer.
Catalina calculated our odds of winning the appeal at a hundred to one against, so we were all willing to let it go.
Not Sadie. “There’s got to be a way we can move to the front of the line,” she said.
Sean suggested a hunger strike because that’s what Gandhi would have done.
“Only as a last resort, please,” said Alistair.
Then I remembered learning about Rosa Parks, how she was tired after a long day at work and refused to give up her seat on the bus for a white passenger. The bus driver said, “I’ll have you arrested,” and Rosa Parks said, “You may have me arrested.” And then Martin Luther King Jr. and another minister named Ralph Abernathy organized a boycott of the buses in Montgomery. “Don’t ride the bus,” they said. And the people all told their friends, “Don’t ride the bus.”
“For a long time almost no black people, and not very many white people, rode the bus,” I told Sadie and Sean, Alistair, Jaesang, Catalina, and Mr. Kalman. “That’s what got the attention of the Supreme Court. And in 1956 they ruled you can’t separate people based on the color of their skin. So by sitting down, Rosa Parks stood up for her rights.”
Which is a paradox, if you think about it.
“Just like you, Sam!” Alistair said. “Only you stood up to stand up for our rights.”
“Boycott,” Sean said. “Brilliant. We stop going to school until the appeals court takes our case.”
We all looked at Mr. Kalman.
“It’s bold,” he said. “But if you incite a boycott of the schools, you could get suspended.”
“Wouldn’t be the first time,” I said.
“I suppose if you got enough kids all over the state to stay home, just for a few days . . . the appeals court would notice.” Then he turned to Sean and said, “It’s time for a new video on the Interweb.”
We went to work on a new video urging kids to stay home.
“Don’t get out of bed.
“Don’t get on the bus.
“Don’t set foot in school.
“Until our appeal to stop homework gets heard.”
The video went viral. The next day, forty thousand kids stayed home. The day after that, three hundred thousand more. By Thursday, 90 percent of all public school kids in California had the “flu.” The state superintendent made a phone call.
Not to the Centers for Disease Control in Atlanta.
Not to Mr. Kalman.
Not to me.
Not to the governor.
He called the clerk at the Ninth Circuit Court of Appeals. He begged him to put us on the docket right away.
And that’s how our case got to the front of the line.
On the plane to San Francisco, Alistair asks the flight attendant for a napkin. Then he asks her for a pen. Then he asks me for my autograph because he thinks our homework case is going to make me famous.
“Shut up,” I say.
“No, really. The boy who took on homework. I want your autograph while you’re still flying coach.”
“I am not autographing a napkin for you, Alistair,” I say. “You’ll use it to wipe Sriracha from your face.”
“Okay,” he says, “then sign this.”
He lifts his shirt. “Make the bellybutton the a in Sam.”
He holds the pen out to me, but I don’t take it. I don’t want to jinx our case.
“Tell you what,” I say. “I’ll give you my autograph if we win.”
Alistair puts the napkin on his tray but pockets the pen.
Behind us, through the crack made by Alistair’s fully reclined seat, I can hear the sweet whisperings of Sadie and Sean. He’s quizzing her on her SAT vocab.
“Clandestine.”
“Secretive.”
“Exonerate.”
“Free from guilt.”
“Neophyte.”
“Beginner.”
“Inveigh.”
“Protest.”
“Surfeit.”
“Excess.”
“Kiss me.”
“On a plane?”
Then it goes quiet.
Across the aisle, Jaesang and Catalina are thumb wrestling. Alistair flips through the in-flight magazine, tearing out restaurant reviews and recipes. Meanwhile, Mr. Kalman reads the LA Times. I see him fold it over, then fold it over again, then fold it a third time, as if he’s trying to make a giant paper football, which is odd because Mr. Kalman doesn’t seem like a paper football kind of guy. But when it’s one-eighth of its original size, he leans over and hands it to me. His bony finger taps a headline:
NINTH CIRCUIT TO HEAR BOY’S PLEA FOR HOMEWORK HELP
I read the article and when I get to my name, it feels like there’s a hummingbird trapped in my stomach: Eleven-year-old Sam Warren was suspended for refusing to do homework over the Columbus Day holiday.
A few sentences later, it says: His attorney, Mr. Avi Kalman, is no neophyte—hey, I know that word!—to constitutional law. A longtime advocate of children’s rights, Mr. Kalman argued for the plaintiff in Lee v. Oklahoma School District before the US Supreme Court.
I look over at Mr. Kalman. I know he wanted me to see my name in the paper, and that’s why he folded it up for me, but I’m glad I saw the part about him, too.
“Mr. Kalman,” I say after folding up the article. “I was thinking about what the judge said, how if it had been just me suing and not the whole class, he might’ve ruled with us. We need to find a way to show that homework is bad for all kids, not just one.”
“What do you have in mind?”
“Backpacks.”
“Backpacks?”
“We should weigh them. Not just ours, but all of them. If we got kids across the country to weigh their backpacks and we kept a running total on the website, that could be a pretty huge number.”
“I like the way you’re thinking, Sam. Like an attorney. We’ll have Sean add it to the site.”
When we land in San Francisco, Mr. Kalman tells the cab driver, “The Ninth Circuit Court of Appeals, please.”
That’s all he has to say. He doesn’t have to give an address because every cab driver in the city knows where the Ninth Circuit Court of Appeals is. On the way, Mr. Kalman tells us about some of the famous cases that were heard there.
One was a lawsuit brought by Vanna White of Wheel of Fortune. An electronics company made an ad that had a robot turning over letters the way Vanna White does. She thought they were making fun of her, or worse—copying her. “It’s not fair if they make money off the thing I made famous,” she said.
The Ninth Circuit Court of Appeals agreed with Vanna White. The robot had to stop turning over letters.
Should the police be allowed to slap a GPS tracking device on a suspect’s car, then watch where it goes, even if they don’t have a warrant?
The Ninth Circuit said yes, they can. Following a suspect isn’t the same as searching them.
The court also said that California’s Proposition 8 banning gay marriage was unconstitutional. The Equal Protection Clause says you should be able to marry the person you love, even if they are the same sex as you.
The other side appealed to the US Supreme Court. The Supreme Court upheld the Ninth Circuit’s decision. Now everybody who wants to, gay or straight, can marry.
And when the president tried to stop people from just seven countries from entering the US, the Ninth Circuit said no, you can’t do that. Not without proving why those countries’ citizens are a greater threat than all the other countries’ citizens.
So the Ninth Circuit Court of Appeals decides some big issues. Their next big issue: homework.
We get out of the cab and have to make our way through a crowd. It’s mostly kids playing hooky on a Monday and holding up signs that read:
STOP HOMEWORK NOW.
SAVE OUR CHILDHOOD.
WELCOME TO SAM FRANCISCO.
That last one makes me smile.
Inside, it’s a crowded courtroom like last time, only now Mr. Kalman and Livingston Gulch go at it in front of three judges instead of one.
Mr. Kalman leads with the child labor argument. You might not know this, but in the old days—we’re talking before the 1900s—kids didn’t have to go to school. They went to work instead. Farm work. Factory work. Or as helpers, called apprentices, in a trade. Some people took advantage of the kids, making them work twelve-hour days and paying them way less than they would adults. Congress passed a law to stop this.
“The Fair Labor Standards Act prohibits minors under fourteen from working more than four hours a day while school is in session. Yet millions of children are doing just that on homework.”
“The child labor laws apply only to minors who work for other people,” Gulch says. “Kids doing homework are working for themselves. For their own benefit.”
“Moreover,” Mr. Kalman continues, “pediatricians are recommending that children between the ages of five and ten get ten hours of sleep per night. Teenagers should be getting nine and a quarter.”
It was Sean’s idea to bring up the health angle. He did all this research on the brain and found out that most teenagers are getting between six and seven hours of sleep a night, which, if you ask me, accounts for their nasty moods at dinnertime.
“So sue for naptime in the high schools,” Gulch says. “But don’t get rid of homework.”
Mr. Kalman tries the Fourteenth Amendment argument. “When learning takes place in school, students have equal access to the teacher. When you send work home, learning becomes separate and unequal. Rich kids get tutors and technology. The poor struggle on their own.”
Alistair, Jaesang, Catalina, and I do fist bumps in our seats.
Livingston Gulch raises his hand.
“Yes, Mr. Gulch?”
“Two kids attend the same school,” he says. “One arrives with lunch from home: grilled salmon with miso sauce and a side of lobster sushi. The other is on the district’s lunch program: a burrito and a packet of hot sauce. By no measure is that fair. But our schools are here to educate children, not equalize them.”
Mr. Kalman holds up a bar graph. “I have here a copy of a graph from the CDC that we submitted. It shows the number of ADHD and GAD diagnoses among school-age children between 2003 and 2017. The CDC report shows a steady increase of five percent a year.”
Jaesang and Catalina fist bump each other. They found those statistics!
Mr. Kalman pulls a second graph from his briefcase. “And this chart shows the average amount of homework done per night, from the updated Cooper Study completed just this year. Note the same five percent a year increase in the number of minutes per night students at all levels are spending on homework. Side by side, these charts tell the story of the growing pressure we put on children and its impact on their mental health.”
There’s a long silence in the courtroom. The three judges on the Ninth Circuit Court of Appeals wait patiently while Gulch thinks of something to say.
And for a minute I feel like this is it. We’ve won. What can he possibly say to that? The more homework kids get, the more stressed they are. It’s right there in those two charts.
But just as a cobra’s head comes up when it’s about to strike, here comes Gulch’s hand.
“Your Honors,” he says, glancing at Sadie, “if I may suggest a flaw in my opponent’s logic. There may be a correlation between the increase in homework and the spike in ADHD and anxiety diagnoses among school-age children, but as any high school debater will tell you, that does not mean there’s a cause. Perhaps school has grown more stressful because there’s more to learn in each precious day. All the more reason why we shouldn’t constrain our teachers by telling them not to give homework.”
“We have testimony from over thirty thousand school-age children—” Mr. Kalman starts to say.
But one of the judges interrupts with, “If they had so much homework, when did they find the time to complain?”
I can see Mr. Kalman starting to wear out. I look at Sadie. She’s worried.
Another judge asks, “And what’s the constitutional violation?”
“The constitutional violation? Well, Your Honors, in Griswold the court established the sanctity of the bedroom. The same exclusion of the government from our nation’s living rooms, dining rooms, and kids’ rooms has to be applied. After four it’s family time.”
Mr. Kalman is talking about Griswold v. Connecticut, a case we looked up on PocketJustice. It’s this cool app Sean showed us on his iPad. You can search any Supreme Court decision and read a transcript of the case. You can even listen to an audio of the arguments.
Griswold was about privacy—that married people should be able to do whatever they want behind closed doors. The court ruled that just as the Fourth Amendment won’t let the government search our homes without a reason, it won’t let them tell us what we can and can’t do inside those homes. Mr. Kalman is trying to show that by giving homework, schools are crossing the line that the Fourth Amendment draws at our front doors.
But Livingston Gulch points to another case, Pierce v. Society of Sisters, in which the right to educate children belongs to the states, not the federal government. It’s the same argument he raised the first time we went to court.
Mr. Kalman tries bringing up Brown v. Board of Education to prove that some school-related cases do belong in federal court.
One thing I notice is there’s a Supreme Court case for just about everything, and you’d better know them all if you want to score points.
After about twenty more minutes of arguments, the justices of the Ninth Circuit Court of Appeals signal that time is up. Then they announce that they’ll be going directly into conference. There are too many kids whose lives are affected by this decision. A swift ruling is the best way to restore order in the schools.
I couldn’t agree more—especially if they side with us.