The Ninth Circuit got it wrong in Harper v. Poway Unified School Dist.. Eugene, as usual, is right about that. The Supreme Court’s decision in Tinker allows public grade schools to suppress student speech (1) when it involves “invasion of the rights of others” or (2) when it reasonably threatens “substantial disruption of or material interference with school activities.” If I were a federal appellate judge, bound by the fairest reading of Tinker, I would have dissented. The problem, as Eugene, David Bernstein, and dissenting Judge Kozinski have noted, is that Tinker itself may be wrong. If the Supreme Court gets this case, it should overrule Tinker or artfully “limit” it. (By the way, Eugene didn’t tell you that Kozinski’s dissent cites Eugene’s own excellent work on the interaction of free speech and harassment law.)
On the first prong of Tinker, I don’t know what the Supreme Court meant by saying that a school could suppress speech to protect the “rights of others.” It probably meant that schools could prohibit things like face-to-face verbal harassment, libel, and threats, which are already examples of largely unprotected speech. If so, I have no quarrel with it. I’m pretty sure, however, Tinker should not be read to allow schools to banish all methods of expressing a whole viewpoint (e.g., against homosexuality). Eugene is right to take the majority to task for this. In what may be a first, the court’s justification for a speech regulation appears to be more troubling than the government’s own justification for it. There’s actually more evidence of viewpoint discrimination in the majority opinion than there is in the actions of school officials.
On the second prong of Tinker, related to “substantial disruption,” if a school can’t bar a student from wearing an anti-war black armband in the midst of a heated national controversy over the Vietnam War, it’s hard to see how a school could bar a student from wearing an anti-gay T-shirt in the midst of a heated national culture war over homosexuality. While the school had some vague evidence that there had been past “altercations” over such messages, and that some students in one class started talking about the T-shirt instead of doing their class work, it’s hard to see how any of this rises to the level of reasonably threatening “substantial disruption of or material interference with school activities” required before such messages can be banned. Here, too, Kozinski is probably right about the best understanding of Tinker. (The majority didn’t even address the sufficiency of the evidence on this point because it decided the case under the first part, above, dealing with invasion of others’ rights.)
But this only illustrates the problem with Tinker. Kozinski argued that “it is not unusual” for high school students to be “off-task” in the classroom, which supports the view that the T-shirt did not disrupt the educational mission of the school more than it is already routinely disrupted. That’s true, and a court faithfully following Tinker should probably agree. But the deeper question is, why should federal judges, rather than on-the-spot school administrators and teachers, make judgments about whether class is too disrupted by off-topic banter and by having to stop everything to bring students back “on-task”?
If schools were free-speech zones, like the public square, we shouldn’t give state censors so much discretion to suppress speech to prevent “disruption” of some social goal. But schools cannot function as fully free-speech zones. Every class is an exercise in content-based speech regulation by teachers, who control discussion in ways that would be unthinkable in the public realm.
One might say that even “viewpoints” expressed in certain ways and at certain times can be banished from classroom discussion. A public school teacher can surely instruct students in classroom discussions to stop referring to blacks as “niggers,” to gays as “faggots,” or to Jews as . . . you get the idea. If teachers can instruct them not to say these things verbally, surely teachers can stop students from saying them on clothing worn all day. And the difference between saying that homosexuality is “shameful” and saying that gays are “faggots” is arguably one of degree, “shame” being a concept with particular closeting power in the lives of homosexuals. I suppose one could argue that using the word "shameful" here is itself the viewpoint being expressed (not just generalized opposition to homosexuality), but that would be akin to saying that using the word "nigger" is the relevant viewpoint (not just generalized opposition to race equality).
Whether to allow the viewpoint that homosexuality is wrong to be expressed in this particular way (“shameful”) and by this particular method (worn all day on a t-shirt, so that the message is never turned “off”) is a judgment best left to school administrators and teachers. They are in a better position than federal judges to determine, in the context of their own schools, whether such expressions distract from the school’s educational mission, either because they lead to general disruption or because they cause gay kids in particular to hide under a rock rather than learn anything.
This last point should not be passed over lightly, as if we’re simply talking about a bunch of whining minorities who want to be free from all criticism in life. This school, like every public school I’ve ever heard of, has a history of harassment of students thought to be gay. A gay student testified that other students “repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and that he heard nasty comments about gays “on a nearly daily basis.” When he and another student sued the school for failing to stop all this, a jury agreed with them.
Of course, a single T-shirt bearing the words “Homosexuality is shameful” isn’t that sort of direct face-to-face harassment and doesn’t, by itself, create a pervasively hostile environment. No single derogatory statement, taken by itself, creates a pervasively hostile environment. The problem is that it's expressed in a context that is already a living hell for gay kids in many public schools, as it probably was in this one, making it difficult for them to concentrate on getting an education.
When you're a closeted gay kid sitting in math class behind that guy wearing that T-shirt staring you in the face the whole time, and you know you have nobody to talk to about how it demeans your most intimate feelings, your whole world starts to look pretty desolate. At the very least, it's hard to focus on hypotenuses. Judge Kozinski put the point well in his dissent, when he said he was sympathetic to the argument that "students in school are a captive audience and should not be forced to endure speech that they find offensive and demeaning." Such messages, he wrote, "may well interfere with the educational experience even if the two students never come to blows or even have words about it."
I would not want to allow schools to banish all ways of expressing certain viewpoints, including the viewpoints that homosexuality is wrong, that blacks are inferior, or that women should remain at home. It should be permissible even to say that homosexuality is "shameful" in the context of, say, a classroom discussion of sexual morality. There should be times and places for expressing political views in schools; but that time is not all day and that place is not in the middle of a classroom on another topic. Schools should be given considerable latitude – certainly more than Tinker seems to give them – to ensure that students focus on the curriculum.