That's what the Ninth Circuit holds today, as to student speech in K-12 schools, in a remarkable -- and in my view deeply unsound -- decision (Harper v. Poway Unified School Dist.).
Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.
Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."
This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).
Rather, any T-shirt that condemns homosexuality is apparently unprotected. So are "display[s of the] Confederate Flag," and T-shirts that say "All Muslims Are Evil Doers."
So presumably would be T-shirts that depict some of the Mohammed Cartoons, as the dissent quite plausibly suggests -- note that the majority's confederate flag example makes clear that even ambiguous statements are stripped of protection if they can be seen as insulting based on race, religion, or sexual orientation. So perhaps might be T-shirts that condemn illegal aliens, since those too are directed at "minority status such as race, religion, and sexual orientation" (the "such as" makes clear that race, religion, and sexual orientation needn't be the only "minority status[es]" that would get special protection from offensive viewpoints).
The majority "reaffirm[s] the importance of preserving student speech about controversial issues generally." But, according to the constitution, this First Amendment principle somehow omits speech about controversial issues having to do with race, religion, or sexual orientation.
The Gay-Straight Alliance has a constitutional right to argue that homosexuality is quite proper, that same-sex marriages should be recognized, that discrimination based on sexual orientation should be banned, and that antigay bigotry is an abomination. But when the other side of this debate "about controversial issues" wants to express its views, which will often have to rest on the theory that homosexuality is wrong, sorry, apparently it's not important to preserve student speech that expresses that view.
"[T]here is an equality of status in the field of ideas," the Supreme Court has said. "Under the First Amendment there is no such thing as a false idea." "The government must abstain from regulating speech when the specific motivating ideology or the opinion or perspective of the speaker is the rationale for the restriction." And yet according to Judge Reinhardt, the First Amendment itself discriminates against viewpoints that express hostility to minority races, religions, and sexual orientations.
The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it's likely to substantially disrupt the educational process. And sometimes speech that's hostile based on race, religion, or sexual orientation -- as well as speech that offends people for a wide variety of other reasons -- might indeed lead to substantial disruption.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn't categorically cast out certain student viewpoints from First Amendment protection. While the standard isn't without its problems, it is at least basically consistent with the First Amendment principle of "equality of status in the field of ideas."
Yet the majority specifically refrains from relying on this principle (and Judge Kozinski's dissent points out that on the facts of this case, there wasn't enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment's not protecting student speech that "intrudes upon . . . the rights of other students," and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).
This is a very bad ruling, I think. It's a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It's an opening to a First Amendment limited by rights to be free from offensive viewpoints. It's a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
Maybe the government needs more flexibility in controlling student speech than Tinker provides. As the close of Judge Kozinski's opinion, he suggests that, "Perhaps school authorities should have greater latitude to control student speech than allowed them by Justice Fortas’s Vietnam-era opinion in Tinker. Perhaps Justice Black’s concerns, expressed in his Tinker dissent, should have been given more weight. . . . Perhaps the narrow exceptions of Tinker should be broadened and multiplied. Perhaps Tinker should be overruled." But even if this is so, whatever rule is adopted should be a rule that the First Amendment applies -- or doesn't apply -- to all viewpoints equally, not that views that the court system finds "derogatory and injurious" are specially stripped of constitutional protection.
Related Posts (on one page):
- An Appellate Procedure Perspective on the High School Anti-Homosexuality T-Shirt Case:
- Supreme Court Vacates Reinhardt Anti-Homosexual T-Shirt Decision:
- High School Anti-Homosexuality T-Shirt Case Vacated as Moot:
- Harper v. Poway Unified School District and the Supreme Court:
- 4 Votes 4 Bong Hits 4 Jesus:
- "Hate Speech":
- Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
- Sorry, Your Viewpoint Is Excluded from First Amendment Protection:
I think I will sue the president the next time I hear him say something about God.
He's been full of "wonderful" "legal" "thought" this week. Hopefully he'll be on the receiving and of yet another 9-0 "benchslap" from this one.
Reinhardt seems to have no problem giving school administrators authority to do just about anything, does he? I guess rights, insofar as they benefit non-liberals, stop at the schoolhouse door for Reinhardt.
When I was in junior high school, students were barred from wearing t-shirts that "advertised" alcohol, firearms, etc. Girls were prohibited from wearing anything that "bared their midriff" (we must protect junior high school boys from the distraction of seeing a girl's navel, I guess), and so on.
I don't know what I think about the merits of the opinion, but is it really that far outside the mainstream?
Schools have the right to completely control their charges but only if they're private. When you guys decided to have government schools, you gave up certain rights of control. Hence all the due-process hearings, litigation, etc. that government schools deal with. You gotta take the bitter with the better.
I'll love to see the 9th Circuit courts deal with the christians vs queers problem since both sides are protected by this decision but the protections are in conflict.
This was, with minor modifications, the problem presented for our journal tryouts this year.
As long as it's in school, and it's targeting comments which directly insult other people (which I think this comment does), then I don't see the problem.
2. Eugene, it strikes me that you're a free speech absolutist. You seem to have little respect for a school's decision, which is presumably majoritarian, to decide what is appropriate behavior in school. At the same time, you seem to be very pragmatic when it comes to interpreting the establishment clause. A little establishment here and there doesn't seem to really bother you. You seem to have more respect for a school's majoritarian decision to do something religious.
It strikes me, in a way, as inconsistent. I assume that you are an absolutist on the free speech for policy reasons, rather than strict interpretation of the Constitution. You seem to really have slippery slopes at the front of your mind. Is there a reason you don't fear slippery slopes in regard to small infractions on the establishment clause (assuming you agree that this is a small infraction)?
I'm sure there are many distinctions, but my suspicion is that it comes down to a respect for free speech, and not much respect for a freedom from establishment. Just a thought.
I'm kidding, I think.
Homosexuals are not an ethnic group. Moreover it’s the acts of homosexuals that some people find shameful, not the mere existence of people with such urges. “Some religious people would say: “hate the sin, but love the sinner.” Nevertheless to make homosexuals into a “group” we need to define this group by its behavior, or at least its proclivity towards a certain behavior. Now it’s true that homosexuality might be an innate trait, but we don’t know for sure it is. I find it curious that homosexual behavior is the one kind of behavior that liberals think is inborn. They are aghast at the suggestion that someone could be born a criminal.
Now it's true that this decision's logic, such as it is, doesn't rely on Tinker. But its reasoning is of a piece with Tinker's: That restricting troublesome speech is viewpoint neutral. The underlying standard is that people with views radical enough to cause some sort of bad effect -- disruption or offense -- must restrict their speech more than people with unremarkable views. Such a standard is the opposite of neutral.
In particular it would obviously be wrong for the courts to hold that shirts critisizing democrats were protected under the first ammendment but shirts critisizing republicans were not. At least in practice it is hard to see how this deciscion isn't similarly biased against certain sorts of viewpoints.
Basically it comes down to the question of what happens when a gay student wants to protest his schools deciscion not to have a gay pride day and wears a T-shirt that says, "Be Ashamed our school has given in to the crazy fundamentalists." Apart from the difference in content such a shirt is exactly analagous to the one worn in this case. Both of them implicitly (but not explicitly) disparage a certain group because of their beliefs/actions (yes proclivity to homosexuality is probably genetic but there are studies that suggest proclivity to religiousity is as well). There simply seems to be no content neutral way to enforce this ruling which doesn't almost entierly strip students of the ability to critisize any group.
I'm a strong supporter of gay rights and I think the religious fundamentalists are bigots hiding behind the shield of faith. However, any speech that is critical of anything disparages some group or suggests that some group is doing something shameful. The fact that people have choosen to view some positions (homosexuality, religion etc..) as central to their personal identity can't be allowed to give them extra power to stop critical speech.
Of course, on day-to-day matters, when I was in public schools, they routinely engaged in unconstitutional speech suppression (I clearly remember when my 7th grade English teacher lectured me - in front of the class - on the importance of becoming a christian.). I imagine not much has changed.
This strikes me as a sort of creeping problem that is important to smack on the nose every so often, to keep the 1st where it rightly should be.
If that makes me a "free speech absolutist", then so be it - that isn't true, of course; I generally mostly agree with much of the distinctions that have been made over time (and I note that I haven't given this anywhere near the amount of thought that Eugene has); The fundamental remedy to bad speech is, indeed, more speech, and certainly not a local school administrator's judgement as to nuances about antidiscrimination law.
And this is from someone who is often accused of being a "liberal" these days, although I can't pass for one yet.
Kozinski-Reinhardt dialogue in these opinions is always high-level discourse. I wonder if Judge Thomas thought the issue merited almost 100 pages of writing...
PI is a high bar to clear, and I have some sympathy for Reinhardt's suggestion that maybe the student will win on the merits, but for the moment there isn't enough for a preliminary injunction.
Something tells me that I'm missing something, but I'm not sure what it is.
Oh, and in a school with an African-American majority, the protection should favor the white kids, and we should protect their feelings from being hurt by FUBU shirts. But the confederate flag would be OK.
The only alternative would be that Reinhardt is imposing his own content-based filtering of good and bad speech, and we know that couldn't happen, could it?
By and large, though, I agree the opinion is unsound: by and large this is a viewpoint-motivated restriction on speech. Pro-gay is OK, anti-gay is not....at least in schools. Hanging one's hat on the educational aspect of the case is slicing the onion of expression pretty thin.
>Marcus, what precisely do you mean by "a little establishment here and there" with respect to EV?<
Oh, just a general impression I've gotten from reading the blog and occasional articles. I concede he wouldn't probably put it in those terms. At the same time though, I think he would acknowledge that he's not an establishment clause absolutist, as he seems to be a free speech absolutist.
I'd accept if he said he is in fact an establishment clause absolutist, but that he simply doesn't think it means what many secularists think.
I actually believe schools should have the sort of authority to censor views which are disruptive or disrespectful, even when they err in their judgment or are conspicuously heavy-handed or one-sided. I believe schools are better at determining what is best for the educational enviroment than judges, but that's not how the Constitution has been interpreted (which is not to say this decision's reasoning is consistent with precedent either).
With respect to your example, it's really not analogous. The student did not wear a shirt that said "Faggots suck." How would you feel if a student wore a "Bush is a terrorist" shirt and was ordered to remove it? How about a shirt insulting the military? These could both be perceived as "denigrating" other students, particular those who are Republican or who have members of their family in the military.
Anyway, the problem is precisely as Logicnazi stated:
As noted, there were previous scuffles over this very issue at the school - including fights and resulting suspensions. This fact is not present in Tinker. Kozinski found the prior altercations not persuasive, but whether it's an abuse of discretion... that's a close call. (I, too, am disturbed by the language indicating the "antidiscrimination" exception to the first amendment.)
I'd say that whether saying disparaging things about homosexuality is similar to making disparaging comments about an ethnic group could fairly be described as a factual question, which ordinarily, the School should be given deference to decide.
Personally, I wouldn't give them that much deference, but basically here I agree. I think a school is well within its authority to say that such a shirt is inappropriate for school. It pushes, and in my opinion crosses, the boundary from making substantive criticism into making personal attacks against other individuals. I think there is a boundary. I don't think schools should have to tolerate that kind of incitement.
What if a student wore a shirt saying something like "AIDS is deserved"? Do we need to protect that kind of speech in school? I guess Eugene thinks we do; I think he's out of touch.
I agree with you. But what if a student wears a "BUSH IS A TERRORIST" shirt? Protected or not?
It's like when you're cross exmaning, sometimes you're allowed to ask a question, but then you have to accept whatever the witness says, because you're not supposed to derail the trial :) I could try to establish EV's views, but I prefered just to ask the question. I don't think I could prove any inconsistency in any case.
>I agree with you. But what if a student wears a "BUSH IS A TERRORIST" shirt? Protected or not?<
Not, in my mind, without further information. It's school. You don't have a right to be inflammatory in school. Giving kids the right to be inflammatory, I think, is really a terrible idea.
Now, if the shirt said "Bush is the worst president in history," I think a kid has the right to wear it. "Bush Sucks," I say fine, unless there is a rule against saying "sucks." Basically, I think EV's attempt to set a hard-line rule for what's ok in school is misguided. A hardline view doesn't work. You have to ask, are they simply teaching standards of conduct, or are they discriminating against viewpoints? To me, saying "homosexuality is shameful" is inflammatory, inciteful and inappropriate for school. The First Amendment doesn't prohibit that kind of evaluation.
I'm in the process of reading this and I see some problems. The Court did not rely, like you and I think they should, on the disruptive nature of the shirt. I think if they did, the decision would be much stronger.
"The Tenth Circuit has held that the “display of the Confederate flag might . . . interfere with the rights of other students to be secure and let alone,” even though there was no indication that any student was physically accosted with the flag, aside from its general display"
"Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."
"Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."
"Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn"
"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong."
"Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury."
Lots of things people say are inflammatory. Are we supposed to make school an absolutely benign environment where no one ever says something that might cause offense or inflame a passion? That sounds like a pretty dull school experience to me. Besides life is not like that. Of course if something were so inflammatory that it would cause a fistfight or a major disruption to the workings of the school, that’s a different matter. What’s happening here is clear. The Ninth Circuit is taking sides in the culture wars. They think it’s more important to protect the feelings of homosexuals than Christians, and if they have to engage in results-based jurisprudence, then that’s just what they will do.
Suppose a student thinks too much money is spent on AIDS research. After all if we spend money on one disease, we spend less on another in a world of finite resources. A student might feel our medical research dollars are not being used efficiently. Should the school gag him, and shut off debate because the homosexual students might be offended? This is a very slippery slope we have here.
"Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation."
"Similarly, T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the “rights of others” Tinker prong."
How about if a student wore an armband to signify that the war is wrong? Do we need to protect that kind of speech in school?
"wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school"
Once a school stages a forum on a subject how does it obtain authority to silence one side under 1st Amendment?
Each participant starts off with say 1000 credits. You win by predicting procedural and final outcomes in ongoing parimutuel wagering. Bettors on each "race" could be identified or unidentified; interesting choice there.
The first race: Will there be a petition to rehear en banc?
Second race: If such petition is granted, what will be the judgment?
And so on. Point standings of all should be available somewhere on the blog, with the top however many on the sidebar.
(Do you not know that the wicked will not inherit the kingdom of God? Do not be deceived: Neither the sexually immoral nor idolaters nor adulterers nor male prostitutes nor homosexual offenders . . . will inherit the kingdom of God.) would have no First Amendment protection. What a shame.
In this case, absent a showing of disruption, the petitioner is likely to win on the merits because that's the Tinker standard for suppressing student speech. Just on that basis, I think Kozinski is right and Reinhardt is wrong. The harm to the speaker outweighs the interest of the school in suppressing the shirt, particularly given the viewpoint discrimination they are apparently engaged in.
I think the TRO should have been granted, or at least the case ought to have been remanded for a better record on disruption (of which the only evidence was the one teacher saying some students were off-task, which would describe 90% of students at any given point in time, I would think, and Judge Kozinski has a great footnote to Ferris Beuller's Day off, among others). Kozinski is clearly right on the law as it is (and I'll leave it to others whether Tinker ought to be revisited). I'm not sure that a facial challenge to the school's policy wouldn't win on the merits either, given the likely vagueness and overbreadth thereof (because it's just impossible to craft one that wouldn't abridge protected speech unless it's confined to obscenity, etc.). So, no, the fact that it's a TRO doesn't make it easier, in fact the standard cuts in favor of the kid here, I think.
1. "Benchslap" is a quality word. nice going, GMUSL.
2. I'm with Chris. I want schools to eliminate all writing on clothing. That way, my high fashion line of blank t-shirts will sell like hotcakes, allowing me to make millions! *Insert evil laugh here*
3. In all honesty, i'm not sure 2 isn't a viable solution to this. I say that for the simple fact that censorship doesn't work. You either have to allow it all, or ban it all. Its just wrong to allow a homosexual kid to wear a pro-homosexuality t-shirt to school (which is likely patently offensive to a fundamentalist christian), and not allow a christian kid to wear a an anti-homosexuality t-shirt. And really, i could care less about the actual wording on the shirt. Unless its just completely obscene, I think the shirt must stand, no matter its opinion. And personally, i have a very high tollerance for obsecenity, so yes, i would allow a kid to wear a "niggers suck" t-shirt. However, i don't think i would vigorously defend him from the beatdown he would likely get for wearing it.
The simple fact is this: If you wear a shirt that espouses a controversial message, expect a response. If you wear a pro-homosexual t-shirt in a place where anti-homosexual people are, expect them to protest in some manner. If you wear a "niggers suck" t-shirt, expect a response from black people, and likely expect a the solid ass kicking you would so richly deserve. The courts cannot and should not protect citizens, be they kids or adults, from hearing opinions they don't like. In fact, the courts should promote people hearing opinions they don't like. because thats how you learn.
4. Yeah, i'm happy about no clayton too.
5. where can i get a "Save the world and nail a christian!" t-shirt? (I go to school in the South. its fun to tweak brittle people. and lets face it, fundamentalist christians tend to be pretty brittle. my current favorite T-shirt: a cartoon jesus hangliding, while giving a thumbs up. Caption: "What wouldn't Jesus do?"
I too would be troubled by being a "First Amendment Absolutist" as some have mentioned. Indeed, many here discuss various "what if" scenarios. Yet that make the strongest argument for upholding the student's right to wear the shirt. Once you do what the school has done, you open a Pandora's Box or the proverbial can of worms. The room for abuse then is monumental depending on what agenda you wish to promote. Sadly it seems the Ninth has shown again its agenda. And I am not one to casually throw around the term "liberal agenda".
Question to the posters: What is necessary for Congress to disband a Circuit Court? Is it time to disband the Ninth?
That's just wildly illogical. But it's the 9th.
As for commenter asking for parimutuel wagers on items like whether there will be an en banc petition... 100% guarantee that they'll petition for en banc. 99% guarantee that it'll be granted. If the decision gets to the USSC, 100% chance of cert being granted. I mean, seriously, this is a steak and seafood buffet laid out for Scalia. I actually really hope that it does go to USSC just so that Scalia can be mercilessly cruel to the respondents and the 9th circuit for their inability to read Tinker and previous USSC 1st amendment jurisprudence.
Too bad for the plaintiff though.
Another quote: "Bad ideas should be countered by good ones, not banned by the court."
Stark departure in Harper today, no?
In this decision he references "Broke Back Mountain" in the foot notes.
Anyone that defends the "reasoning" of this robed tyrant is a straight up fool.
How about this -- my wife is Chinese. Her father and grandfather defected from Communist China, narrowly escaping death. My wife sees the color red and she feels "threatened" because of family history associated with Communist mass murder. Does she have a case? After all, a shirt of a certain hue may move her "off task." Point is -- since when does the Constitution require that one's expression be stifled based on the feelings others may experience?
I guess all one needs to do is throw a fit because the standard seems to be that if you scream and holler about what someone else is wearing, the person screaming red-faced hasn't caused the "disruption," rather the person that quietly wore the shirt. This is sick.
I'd LOVE to claim it, though.
As Fraser notes: "A school need not tolerate student speech that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school."
In this case, there's a reasonable argument that the text of the shirt was "plainly offensive" and could be regulated by the school under Fraser.
Perhaps Mr. Harper would be better off elevating the level of his discourse.
Liberalism includes, among other things, the idea that you should think and reason for yourself not merely accept arguments by authority. Granted, parents usually exercise this self-thought on behalf of their child, but public school operates at another level entirely.
Given that children are heavily shaped by their environment, they must be taught many rules of polite conduct. It just doesn't seem possible for this to be done in the context of a public school and maintain basic liberal notions.
The shirt in question is pretty close to the line. It's not obviously disruptive, but it's not obviously innocuous either. In that sort of case, it makes sense to leave it to the school. Imagine if the kid won the case, printed up 1000 of the shirts, and suddenly it became a school fad? Now it's constitutionally protected, and you have half the school wearing anti-gay shirts. That seems like a problematic outcome.
Normally I'm 100% yay free-speech, and I wouldn't have minded this case going the other way in terms of having my ideology stroked. But probably it's good policy. I'm not sure where the idea that the First Amendment applies strongly in secondary school comes from. Why should it?
The argument seems to be that it's fine to restrict the First Amendment in schools as long as it's viewpoint-neutral. I don't think that gives the best result. If you want to minimize disruption and be totally viewpoint neutral, you have to ban pretty much all viewpoints. That can't be right.
So, from a policy perspective, I think it came out well. It'd be dangerous to give affirmative constitutional protection to any specific student speech - it'll backfire. Ultimately, administrators need a fair amount of flexibility.
One last thing - the alleged distinction between homosexual acts versus proclivities is 100% FUD and herring. When you go and beat up the fag, you don't ask him first whether he's actually done it. You just kick his ass. And if you're gay, you don't take offence to anti-gay remarks only if you've had sex recently.
If "Bush sucks" is ok, is "MLK sucks" ok?
Would a "Celebrate Homosexuality" shirt be ok? What about "Celebrate Heterosexuality" or "Celebrate AIDS"?
How about "Celebrate MLK"? Why not "Celebrate Robert E. Lee" then?
Frankly, if any one of these is ok, I have a hard time seeing why all of them aren't. I doubt, however, this school or Judge Reinhardt would agree. And that's the problem with this case.
That said, it's still fair (and constitutionally protected) to argue that the kid is a bigot and a jerk for wearing an offensive (but constitutionally protected) shirt.
Let the schools and their people have some standards, public or not. They are closest to the situation, and I am certain despite the hyperbole here, that anti-homosexual students (and parents) could find other forums to express their opinions than a public classroom. If there is part of the public ed curriculum parents don't agree with (sex ed or discussing homosexuality) they can either pull their child out or work to gather enough other parents to revise the curriculum.
No activist judges needed to protect Harper; no macroeconomic school-managing from others with outside agendas. Why not let the decisionmaking rest with those closest to the decision? Don't they know their school best? Leave the schoolkids alone and find someone else to shame, or do it on your own time. That shirt does not belong in a school classroom, and I think a "no offensive clothing" policy -- with local standards and school officials and parent boards determining what is offensive and can't be worn in their dress code -- is common.
"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful," Reinhardt.
"There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools," Reinhardt added
Depends. What's the topic and subject? Is the student "off topic" and trying to steer discussion into his pet anti-homosexuality topics? Shut off his ability to define the debate then. Let him organize outside of school hours and work to influence there, instead of seizing the lesson plan for his own religious/moral beliefs.
Suppose a student wants to discuss his deep beliefs in creationism during a biology lecture. It's not a matter of "protecting" viewpoints. It doesn't belong there. If the above example about funding medical research is really what's being discussed in a public middle or high school, then of course a student could express such an opinion. I would take about a minute. Others could disagree or agree, nothing shameful about that.
No equality trees, no statues of equality, no equality song, no equality bell.
Where are the great Americans stressing freedom? Like John of Randolph.
Seriously, how old are these guys? How much longer is this circuit going to be the biggest joke in the judiciary?
>Are we supposed to make school an absolutely benign environment where no one ever says something that might cause offense or inflame a passion?<
See, where I went to school (a public school in Alaska), I had no expectation that I could wear a shirt saying something like "Teachers are jerks," Or "I hate people who listen to rap music," or "Gays are evil." If a teacher would have made me take it off, I had no expectation that I could have gone to the principle and said "But sir, the slippery slope." I have never thought, or been given a reason to believe, that school children should have the right to say any which offensive thing they want.
EV seems to think schools are incapable of distinguishing effectively between rules aimed to enforce standards of conduct and rules aimed to target specific viewpoints. I think he's out of touch. Of course, schools will make stupid decisions and some Republican teacher will tell a kid he can't wear an anti-Bush shirt, or some Democratic teacher will say the kids can't wear an anti-Hillary shirt. But if they are targetting viewpoints, then everybody agrees that it violates the first amendment. Such decisions can be challenged and overturned, and 95% of us will agree.
I don't think the decision in this case targets a viewpoint, unless that viewpoint is "I should be able to say derogatory things about other people." I have no problem with curbing the right to say derogatory things about other people. Moreover, I think the school should be able to decide that homosexuality is innate, and thus that homosexual students are entitled to protection from open hostility. Or simply that anybody is entitled to protection from open hostility.
The goal of school isn't to emulate life after school. It's to teach things which we well recognize many people in real life don't know. I, as an adult, certainly have the right to spout off in pretty much any way I want. I don't think school children should have the right to spout off. What a weird idea!
Government employees generally are not accountable for the quality or consequences of their official actions. Nothing can be done about this except to point out, when such a one mentions the responsibilities of his position, that he has no responsibilities at all.
The only difference is that Reinhardt has someone looking over his shoulder.
The Supreme Court does not sit to make error corrections. It takes a handful of cases, and although it does reverse a fair number from the 9th Circuit, it does so mainly in cases of a Circuit split, where the issues have percolated sufficiently, etc. etc. Simple incorrectness is not enough.
Of course, that doesn't mean that the Circuit of Texas (tm) can get away with quoting the dissent on remand, *they'll* still get smacked down, GVR'ed, per curiam.
But as another commenter recently said, Reinhardt knows that they can't reverse everything he writes.
If you want error-correction, look to reconsideration or rehearing en banc. And even then, not likely.
No, SCOTUS isn't in the job of fixing merely bad law - its own or anybody else's.
Any suggestions what its job actually is, currently? With some basis in political theory?
I don't see the problem. They're not saying other cases won't pass muster, simply that those cases should be decided as they come.
I agree with each of the stated quotes.
Absolutely. I should not be able to wear a shirt in school that says "Christians are depraved," or that "Chinese people are depraved" any more than I should be able to wear a shirt saying "Homosexuals are depraved." As far as I'm concerned, the focus on disruption is misplaced, due to the "hecklers' veto."
The idea that we shouldn't attack people for their race, religion, national origin, sex, sexuality, I think this is a social norm which schools are entitled to enforce. This isn't about whether a shirt is disruptive. The fact that other kids get their panties in a bundle should decidedly not be the test. The test, or at least the applicable test in this instance, should be whether one student is verbally assaulting another. Now, the court says they're narrowing the ruling to only apply when a student is verbally assaulting another on the basis of a core identifying characteristic. Fair enough. Students in school should not be allowed to verbally assault eachother, on their shirts, or otherwise. Does this make for tough decisions in certain circumstances? Sure, but that's pretty much democracy.
Does the First Amendment really ban schools from making that kind of decision? Is that really the requirement of the First Amendment? Does the First Amendment require that courts set hardline rules allowing any kind of insulting speech in schools?
But somewhere along the line people have to face that neither extreme is appropriate. What is missing from American education -- and apparently the legal system as well -- is that while one may have the freedom to affront others, that does not imply the necessity to do so.
No matter how much you may like Reinhardt, he consciously wrote an opinion here that pushed a new PC "hate speech" exception to the 1st Amendment. He was pushing his personal view unnecessarily, just as Kennedy did in Lawrence (when he could have gotten he same immediate result on equal protection grounds, as O'Connor noted). If that's what you want, fine, go to Congress and 50 states and re-write it to match your wishes. Otherwise, knock it off and live with the Constitution as it is.
>How about if a student wore an armband to signify that the war is wrong? Do we need to protect that kind of speech in school?<
Yes, I don't think that verbally assaults other students. Which raises the important objection: "Yes, but they'll be offended," to which I say, that's their problem. The question should not be whether something is "offensive," which is very vague. The question of whether students are verbally assaulting others, however, I think is appropriate. I.e., "Homosexuality is wrong," I think the kid has a right to wear it, as a general matter. "Homosexuality is shameful," I think not. Tough line? Sure, but someone has to draw the line in school.
What if kids start wearing shirts saying "slavery was great" or "we love the holocaust" or whatever other extremely offensive thing? I don't know, maybe the school will have to impose uniforms. I think the school should at least have some deference, though, for deciding what is allowable in schools. If the school imposed a ban on advocating slavery or genocide, I wouldn't have a problem with that either. As I said, I simply don't think kids have a right to spout off in school.
The chances of cert. on this one, either now or after a trial on the merits, is close to zero, IMHO. This case is too much at the edge of our cultural divide (what's better than homosexuals vs. Christians?) for SCOTUS to step in. The ACLU could make a difference, but they won't touch this one with a ten-foot pole. And without the ACLU involved on the side to the plaintiff, Ginsburg, Stevens, Souter, and Breyer will have no political cover (remember, they are not judges, just politicians in robes), Kennedy's too uncertain, and the four conservatives will be afraid to risk it.
Here's a snip from Citizens for a Responsible Curriculum v. Montgomery County Public Schools:
"The Court is extremely troubled by the willingness of Defendants to venture-or perhaps more correctly bound-into the crossroads of controversy where religion, morality, and homosexuality converge. The Court does not understand why it is necessary, in attempting to achieve the goals of advocating tolerance and providing health-related information, Defendants must offer up their opinion on such controversial topics as whether homosexuality is a sin, whether AIDS is God's judgment on homosexuals, and whether churches that condemn homosexuality are on theologically solid ground. As such, the Court is highly skeptical that the Revised Curriculum is narrowly tailored to serve a compelling government interest, and finds that Plaintiffs' Establishment Clause claim certainly merits future and further investigation."
Well, when *I* was in junior high school, students were barred from wearing *any* t-shirts, whether or not they carried political, religious, or commercial messages. I have a hard time understanding why students in school should be allowed to use their clothing as billboards at all. Wouldn't an outright ban be acceptable as a content-neutral regulation?
Now, when I was in high school, Tinker was decided, and it struck me as a reasonable application of the first amendment to the school situation. I am shocked to read in the Harper decision that some courts have actually been citing Tinker to justify bans on the display of the Confederate flag. I can only guess that those courts didn't read Justice Fortas's decision very closely. In it, Fortas cited with approval the Fifth Circuit's decision in Burnside v. Byars, which held that a school could not ban the display of "black power" emblems in the absence of a showing that the display would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." I would think that the Confederate flag should enjoy as much protection as the emblems in Burnside.
Then again, Tinker has been whittled back so far over the past decades that I'm a bit surprised to find the Ninth Circuit acknowledging that it's still good law.
Seems to me like an extension of shouting fire in a crowded theatre.
That train left the station decades ago. In fact, it was a large part of the basis for Justice Black's dissent in Tinker.
You don't need to present such a far-fetched hypothetical; a Che Guevara t-shirt is one your wife is actually likely to see in a school, and one that would, I expect, rightly make her angry.
It's a common distortion, one I've noticed EV is also prone to, to fail to distinguish between something which verbally assaults someone, and something which a person merely finds offensive. Anything can be considered offensive, but nobody is saying that should be the test. What they said is that a test baring verbal assault based on core characteristics is an appropriate test.
So, no, saying you're anti-gay, anti-Christian, anti-black, is not the same as saying you're pro-gay, pro-Christian, pro-black. It's the difference between a compliment and an insult. In school, compliments are ok. Insults are not. Only a bunch of silly lawyers could have any problem telling the difference...
Although I generally agree with Prof. Volokh's post and Judge Kozinski's excellent dissent, what makes this opinion absolutely indefensible in my opinion is the nonsense about restricting the holding to speech targeted at "minority" groups.
Tinker reflected the strong antiwar sentiments held by liberals at the time, and rather than admit that public schools and students are not equivalent--or even close--to an adult standing in a public park, the Supreme Court decided to create this situation where the First Amendment somewhat applies--but not entirely. Tinker was wrongly decided; if the students wanted to wear black armbands to protest the war in Vietnam, they could just as easily have done that outside of school.
A public school should not have unlimited discretion as to what constitutes a disruptive message. The remarks of some commenters here justifying why this particular T-shirt should not have been allowed are a reminder that many liberals only believe in free speech when they agree with it. Reinhardt's decision--making a distinction based on minority status and oppression--is one of the reasons that I think so little of the organization that Reinhardt sleeps with--they are constantly prepared to twist the law to suit their political ends, with no concern for consistency.
There needs to be either a consistent policy that says, "Nothing controversial or commercial on T-shirts" (and then, a detailed list of what constitutes these categories), or no restrictions at all. If gay students want to wear T-shirts that make them feel good with pro-gay messages, then T-shirts that express disapproval of homosexuality need to be allowed as well--or homosexuals should just admit that they have so little confidence in the strength of their position that they can't tolerate any debate about it.
Yes, the latter is bad. But censoring the former, which I doubt it can be denied our society effectively does, is just as bad. Why have I never seen (in my admittedly limited experience) any blogs to that effect?
I would never castigate someone for standing up for free speech. But I think I and others are entitled to castigate for the seemingly particular modes of speech that this blog deems fit to defend...and I do. When a site or a person stick up only or at least particularly for the rights of others to express negative views about a community, while basically ignoring the expressive issues attached to that community itself, it certainly lends the impression that augmenting the defense of speech is an assertion of the legitimacy of these views. Not only are they illegitimate (and can be demonstrated so through a marketplace of ideas), but the decision to defend these- _as if they were the most significant speech issue facing our society_- is really utterly appalling.
Apparently I'm missing something. When did "sexual orientation" become a protected class? What the hell is sexual orientation anyway? Does polygamy qualify? Does incest qualify? This is apparently just another way of giving another group preferential treatment denied the majority.
If those two words were meant for me, they prove woefully insufficient. Is the US military state action (DADT)? How about the FBI (Padula v. Webster) or the Georgia DA (Shahar v. Bowers)? The first particularly, "Don't Ask, Don't Tell," is a clear first amendment issue that I have seen virtually undiscussed in this forum.
Thus, we, the heirs of George Mason and Thomas Jefferson do interpret the First Amendment to the Constitution of the United States as parsing the ridiculously non-existent distinction between something being merely "wrong" as opposed to "shameful."
That makes less sense than the majority opinion.
There are two relevant sections. First is all posters, brochures, etc have to be approved before displaying or distributing. If a student use school supplies, the teacher has approval rights. If you use non-school supplies or if it comes from a non-student, it has to be approved by the principle first. This seems to be to be content neutral, though if the principle had a history of accepting one speech and not another, I could imagine a case could be made based not on the rule, but on its implementation.
The other bands clothing with messages that advertise alcohol, tobacco or message of a sexual or other inappropriate nature. Also no display of weapons, messages and/or pictures that depict violence. These include messages that could be associated with cults or gangs.
This would seem to me to be based on content. It is not all advertising (which would presumably include NFL, NBA or Nike logos), but only specific kinds. And the "other inappropriate nature" would seem to cover a lot of ground.
On the violence, I could imagine an anti-war shirt refering to the dead in Iraq or a pro-war shirt refering to the dead in the WTC as being banned.
At a minimum, it would seem to me that the schoold district should be forced to explicitly state before hand if it was going to ban a message based on content.
Wait. Does that make me a homophobeophobeophobe? My head hurts.
To me, the main distinction is the shirt contains what amounts to a personal attack on other students. It's not a question of whether it's "offensive", per se, but rather whether it's directed at others at the school.
Similar to the difference between a "Bush is stupid" T-shirt and a "Bush supporters are stupid" T-shirt.
OTOH, like some of the other commenters, I'm unconfortable with the limitation to minority status--and the Court's somewhat lukewarm explanation in Note 28 as to how a personal attack based on a majority status would be handled.
--Philistine
I think that it's within the public school's discretion to decide that students are not always mature enough to appreciate the hurt they can inflict, and that a viewpoint-neutral test could be devised for any T-shirt message *condemning* others' beliefs. No "Christianity Sucks" or "Gays Are Stupid" shirts. You can declare your own beliefs proudly but don't need to dump on others.
That may not be what Tinker says, but hey, that's how new law gets made. Kozinski may be right, but all the bashing of the other judges because they're pushing on the bounds of a 30-year-old opinion is out of place.
Care to back up the statement that he was or may have been "born" a homophobe? Are you suggesting that homosexuals are natural? If not, how can someone be born, rather than made to hate or fear them?
DADT is another story. Clearly it DOES restrict speech. Unfortunatly, I think the reason no one's challenging this aspect of the policy is that it will probably lead back to having homosexuals excluded from the military entirely. Also, I'm sure the government would argue that maintaining order in the military is a compelling interest.
My only point--and I think still a valid one--is that the coverage of infringements on anti-gay speech seems to far exceed coverage of infringements on pro-gay speech. You can say it's a "state action requirement"; I think I've already poo-poo'd that notion. After that, what is it besides an ideological preference much akin to the precise accusation lobbied against "liberals" and their protection of free speech?
Perhaps it's called the Anti-Christian Litigation Unit because a bunch of Christians are simply more impassioned about their speech than others. Perhaps that's why we hear more about pro-homophobia speech than anti-homophobia speech as well.
Perhaps the reason there is more concern for government restrictions on anti-homosexual speech is because there is more government restriction of anti-homosexual speech. You pointed to DADT and two cases I've never heard of... I can point to HUNDREDS of cases at public schools and universities across the country in the other direction.
Besides... the bloggers here can talk about what they like. We got free speech, remember? Go look around the net... I'm sure you can find people complaining about what you want to hear.
Personally, I wouldn't feel attacked by a t-shirt about not saying the pledge. On the other hand--I'm not a child in public school who doesn't say the pledge.
Does your advice to "grow a thicker hide" apply to the 8 year-old Jehovah's Witness? Or even, if he were 15 or 16 (like the plaintiff in this case).
I don't see a distinction between general attacks on identifiable students and specific verbal attacks on students.
If Harper had gone up to a gay member of the Gay-Straight Alliance and said what the back of his T-shirt said, should the administration have told him not to say it again? If he did say it again, would they have been in their rights to discipline him?
What is the distinction between a t-shirt saying homosexuality is shameful" and one saying "Johnny Smith's homosexuality is shameful." Would your answer change if Johnny Smith were the only open homosexual in the school? If there were two? Five? Ten?
--Philistine
The statements made by the Gay-Straight Alliance are offensive to Harper. They violate his beliefs as much as the Pledge does the JW. Both of them can handle being in the minority, with a majority that's hostile to their beliefs. Why is it that the gay kid can't handle the T-shirt that disagrees with his?
Just as I can poo-poo all I like, you can bold nonsense until the cows come home. The idea that there is "more" governmental restriction of anti-homosexual speech is pretty ludi