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Right result under a bad precedent:

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.

M. Simon (mail) (www):
Vouchers
4.21.2006 9:55pm
jrose:
Dale,

Is it your argument that a T-shirt which says "Judaism is shameful" - worn by a high-school student on religious-tolerance day - should not be protected speech, but is under Tinker?
4.21.2006 10:32pm
Mike Lief (www):
When people ask me what's the most aggravating aspect of being a lawyer -- expecting me to say "dealing with opposing counsel," or some such stereotypical response -- they're usually surprised when I answer, "Judges."

Judicial monkey business is merely aggravating at the trial-court level, but it's positively dangerous when you reach the courts of appeal. The appellate courts drive me crazy, from the local state Court of Appeals, to the Ninth Circuit (my home turf), to the U.S. Supremes; it seems like a never-ending litany of judicial arrogance, legislating from the bench and banishing all semblance of common sense from the law.

This is merely the latest example of the madness we are subjected to via the legal rulings of Judge Ripston Reinhardt. I wish the politicians -- as reprehensible as they are -- would reassert their primacy over the lawmaking function and rein in these would-be pols in black robes.
4.21.2006 10:49pm
JB:
Once you establish that dress can be regulated on content (which may be different from regulated on shape and size--if a girl's bellybutton can be analogized to the "content" of her shirt, or lack thereof, the two issues may rise and fall together), how far will you allow this to go? I recall when shirts of various solid colors were banned, because those shirts were in "gang colors." Is that an OK content ban based on the distraction-from-studying grounds? Is there any reasonable and fair middle ground between school uniforms and total deregulation? If so, where?
4.21.2006 11:08pm
Duncan Frissell (mail):
Why should homosexuals have protection from a hostile environment? I never did. School - particularly government school - is by nature a hostile environment. That's why you shouldn't send your kids to one.
4.21.2006 11:13pm
JRL:
Is there a difference in the logic contained in the following 2 statements?

"That student disrupted the educational process of others by wearing a t-shirt that said 'homosexuality is shameful.'"

"That woman provoked her own rape by wearing those tight jeans and that low-cut shirt."

It seems to me that we're looking to place blame on the wrong party in each instance.
4.21.2006 11:31pm
Shangui (mail):
The logic in the first instance is that the shirt is a direct attack on an aspect of one's person that is inherent to that person, like skin color, and that directly insulting that person disrupts his educational process and thus his rights. (Note that I'm not saying I agree with this, but that seems to be the basic idea.)

The logic of the second is that the clothes she wore 1) constituted an explicit expression of consent for sexual activity that overrules any other verbal or physical refusals she might have made or 2)so affected the man in question that he could not control himself and essentially was forced to force her to have sex against HIS will.

I don't agree with the logic of the t-shirt case, but it's certainly far less absurd than the logic of the skimpy-clothes-means-you-can't-claim-rape case senarios.

While I think the kid SHOULD have been allowed to wear his idiotic shirt, I don't the analogy with blaming the victim for rape. If the kid was beaten up for wearing the shirt then the analogy would work better. But he wasn't, right?
4.21.2006 11:56pm
SMSgt Mac (mail) (www):
Actually, the Kozinski point seems pretty lame to me, because it was not the authorities who were imposing views upon a captive audience in the case that was before the court. If the case had been about suing over the school sanctioning of a 'Big Gay Event' with the resultant imposition upon the children/others who feel homosexuality is wrong, then there might have been some logic to it. As it is, it looks like we are just one step closer to only certain segments of the population having "divine right to never be offended", at least until the ruling gets overturned (which I believe will happen).
4.22.2006 12:01am
Jam (mail):
Separation of schooling and government NOW!
4.22.2006 12:13am
Tony (mail):
I wasn't sure what to think about this, but one point you made provoked a strong reaction:

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.

Yes. But it goes further. Although I was a good student who never got into trouble, I am pretty sure that if I sat behind that shirt for an hour, the minute the bell rang, I would have attacked him - full force, with intent to harm, no matter what the consequences. I'd probably have been expelled, and my life would have turned out very differently. Such is the emotion that this image generates.

Thanks, by the way, for using the term "gay kids" without hesitation. There are those who would deny that "gay kids" even exist.
4.22.2006 12:25am
Daniel Chapman (mail):
Out of curiosity, what sort of anti-homosexuality message would you consider appropriate, Mr. Carpenter? If "shameful" is beyond the pale, I'm guessing that the "appropriate expression" argument will turn into a de facto ban on all expression of the belief that homosexuality is morally wrong.
4.22.2006 12:38am
therut:
Why have our Junior and High Schools become so political? Is it the same reason our Courts and Universities have? No wonder kids of all stripes have so many problems today. Schools have turned into Zoo's run by the government Keeper. Home School, private school and demand VOUCHERS NOW. Separate Government and Schools and give the power back to the people espically parents. This is what is going to happen.
4.22.2006 12:47am
KAJ:
Are you serious, JRL? Those two cases would only be analogous if it were the woman raping the man by wearing the tight jeans and low cut shirt, or if the kid wearing the shirt condemning homosexuality were somehow the one being wronged. In the one case, the student offends (wrongs? harms? victimizes?) others, and in the other, the woman is the one who is vicitimized. Frankly, it strikes me as perverse to suggest that these cases are at all similar.
4.22.2006 12:59am
wrightflyer:
Sorry I do not follow the logic of (a) separating schools from government or (b) wanting vouchers. Do you want more restriction on students? Do vouchers equal less restriction or just permission only for your point of view?

After reading the opinion, one cannot avoid comparing the way the school handled the issue - very gentle and with kid gloves - compared to the ham-fisted way many schools treat students that advocate an opinion with which the school disagrees.

Looking at the issue with some logic (not necessarily based on case law), my position is that under the first amendment, one has the right to say whatever one wants. Implied, it seems to me, is the right not to hear or see what others say or show. (Tinker and others.)

In public, I can walk away from someone saying something I do not like; not look at a sign with a message that disgusts me or with which I do not agree. In school, students do not have such a choice. Students are forced to endure speech - by teachers and students. (See, Tony's statement above.)

Tell me, those who disagree with the holding, in a public school, where would you really draw the line? Consider the following t-shirt slogans: "Hitler was right." "George Bush is wrong." "All Moslims should die because of 9/11." "The principal sucks." Make up your own, just tell me explicitly where you would draw the line.

Outside of school, my line is drawn where you can say anything you want; but I cannot be forced or required to listen. Any situation where one is required or forced to be present changes the rules. Tinker and other cases have tried to draw that line - a very blurry line. Given the facts stated in the case, the decision, however reached, is right for the situation in the school on that day.
4.22.2006 1:14am
Anon Y. Mous:

"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.
...
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.


So what about the kid that belives homosexuality is shameful, and is stuck sitting in math class behind someone wearing a Gay Pride t-shirt? He can't turn off the message that homosexuality is not shameful, but rather it is something to be proud of. Are you willing to ban the "Gay Pride" t-shirt so he can concentrate on his studies?
4.22.2006 1:15am
Ex-Fed (mail) (www):
I see that the Ninth Circuit has now ruled, as a matter of federal law, that you cannot oppose homosexuality without opposing homosexuals. I've argued that any number of times in debates and am pleased to have a cite. I await the Ninth Circuit's ruling on Godwin's law and whether or not abortion opponents are allowed to support the death penalty.
4.22.2006 1:20am
Daniel Chapman (mail):
Just out of curiosity... if I define my entire identity by my opposition to abortion, can I have "pro-life" declared a protected minority and silence all criticism? You can't oppose my views without opposing me personally, right?

(I apologize if that was sarcasm, ex-fed...)
4.22.2006 1:44am
212 (mail):
Well, somebody has to quote the Blackmun dissent:

"Cohen's absurd and immature antic, in my view, was mainly conduct and little speech."
4.22.2006 1:55am
Cornellian (mail):
Personally, I'm a fan of mandatory school uniforms.
4.22.2006 1:58am
Guest poster (mail):
There is no moral equivalence between saying homosexuality is shameful and homosexuality is ok, just like there is no moral equivalence between saying that hating niggers is shameful and equality towards African-Americans is okay. I always find it amazing how conservatives, who purport to be the moral leaders in elections, advocate such moral nihilism. It is nice to have absolute moral clarity, to know that in the gay rights debate, one side is right and one side is wrong. (Obviously the free speech question in schools is much more ambiguous, as Dale Carpenter correctly states.)
4.22.2006 2:01am
Cornellian (mail):
This is merely the latest example of the madness we are subjected to via the legal rulings of Judge Ripston Reinhardt. I wish the politicians -- as reprehensible as they are -- would reassert their primacy over the lawmaking function and rein in these would-be pols in black robes.

Umm, isn't that exactly what happened here? The Court deferred to the (elected) executive branch's decision to prohibit the T-shirt. If you want elected branch primacy, you got it with this decision.
4.22.2006 2:01am
Guest poster (mail):
Umm, yeah, I meant "there is no moral equivalence between saying that hating niggers is okay and equality towards African-Americans is okay."
4.22.2006 2:02am
MR (mail):
I think a lot of these comments lose sight of the purpose of school: education. The problem with trying to shoehorn this case into Tinker is that the black armbands did not constitute an "attack" that might affect the ability of a segment of the student population to have a more difficult time learning. This is just a different paradigm.

Is it so irrational for a school to ban shirts that say: "Jews suck", "gays suck", "Christians suck", etc. but allow shirts that say: "Jews are great", "gays are great", "Christians are great", etc.? Black armbands, government protests, etc. are not relevant at all to whether a t-shirt will cause a negative impact on the educational atmosphere.

It seems like schools can have special areas for groups or individuals to rally, for or against certain viewpoints (including "homosexuality is shamefule) while at the same time saying that signs on t-shirts cannot be worn through the halls.

The courts have recognized that schools are special when it comes to religion, why can't the same be true for speech targeted at a specific group?

Finally, for those who say government should be separated from schools, I don't get it. I'm pretty certain that they don't allow t-shirts that say homosexuality is shameful on Catholic school uniforms. If you're for free speech, moving your child to a private school is no way to get it - I'm certain that private school principals understand the affect that walking signs disparaging groups can have on education and wouldn't allow it either.
4.22.2006 2:05am
Cornellian (mail):
Is it really impossible to make a viewpoint distinction? Does allowing an "I'm proud to be Jewish" T-Shirt necessarily entail having to permit a "Jews are the scum of the Earth" T-Shirt?
4.22.2006 2:06am
SLS 1L:
Daniel:
if I define my entire identity by my opposition to abortion, can I have "pro-life" declared a protected minority and silence all criticism?
As I read Harper, you'd need to meet the following criteria:

(1) Pro-lifeness would have to be a "core identifying characteristic such as race, religion, or sexual orientation," which it probably isn't. It looks to me like the court's test for this is objective, not subjective, though of course who can tell, so your personal idiosyncracies probably don't matter.

(2) Pro-lifers would have to be "particularly vulnerable students." This one's probably also a no, although they might be if the particular school or area were so virulently pro-choice that pro-life students were regularly harassed, beaten up, etc., simply for being pro-life.

(3) The criticisms would have to be "demeaning," possibly at the level of stating or implying that pro-life students are "inferior or evil" rather than simply wrong. Some, but not all, pro-abortion and anti-pro-life arguments would fall into this category. "Anti-choicers suck" is probably out, but "I support abortion rights," or "My body, my choice" are probably OK.

So the answer is no.
4.22.2006 2:10am
Mike Lief (www):
Cornellian --

Your point is well taken, and understandable, given my lack of a paragraph break.

This decision is not an example of judicial legislating; I conflated my frustration with this ruling -- which I believe to be wrongheaded and clearly not viewpoint neutral -- and my general aggravation over the tendency of the courts to engage in policymaking.

Oh, for the want of a carriage return.
4.22.2006 2:12am
212 (mail):
So it's true! "Legislating from the bench" really is just a code word for "letting the gays win"!

Judicial restraint was once a liberal cause celebre, too, you know. And it came to bite the New Deal judges in the ass too when the elected branches turned. No doubt conservatives will go running to the Justices when the pendulum swings back. You can see it starting already in the push to give the "takings" clause more teeth. It seems Substantive Due Process has a right wing heir after all.

And what a weeder case for wanks who only pay lip service to their ideals. Sort of separates the wheat from the chaff among the wingers. Those who instrumentally endorse jurisprudential attitudes only when they produce desired social policy will certainly dislike this decision.
4.22.2006 2:57am
Ciarand Denlane (mail):
1. "Finally, for those who say government should be separated from schools, I don't get it. I'm pretty certain that they don't allow t-shirts that say homosexuality is shameful on Catholic school uniforms. If you're for free speech, moving your child to a private school is no way to get it - I'm certain that private school principals understand the affect that walking signs disparaging groups can have on education and wouldn't allow it either."

I can't speak for others who have been advocating separation of school and state in this thread, but my point (on the comment thread under Eugene's post), argued for such separation position precisely because private schools are in a better position to restrict speech than public ones subject to the First Amendment. I suppose one could argue that public schools also ought not be subject to the First Amendment or ought to be subject only to a more (than already) watered down version. IMHO, the First Amendment has a role to play even in the public educational context -- perhaps especially in the educational context -since the government ought not be molding the people rather than vice versa. It is an unrealistically optimistic assumption to think that government can educate -- teach people how to think -- without all too often also telling that what they should think.

2. A lot, though not all, of the comments both in this thread and Eugene's seem to be talking past each other. Many of those who support the CA9 decision see homosexuality as innate and unchosen, as being black is innate and unchosen, and therefore liken (appropriately given that assumption) the homosexuality-is-shameful t-shirt to t-shirts saying that, say, blacks are shameful. Many of those who challenge the decision see homosexuality as chosen in much the same sense that a religion, or being in the mafia, or picking one's nose, or being anti-abortion (four examples I seem to recall) are chosen. [Yes, there's a sense in which none of those are chosen either, especially if one is a thoroughgoing philosphical determinist; but in the practical world, there's some choice.) Indeed, the t-shirt could itself be understood as making a statement on the question not only whether homosexuality is good or bad, but also on whether it is (more or less) freely chosen. (A gay youngster with more maturity and thicker skin than we have any reason to require or expect might well be less offended by the t-shirt given an understanding that it's normative expression is based on a mistaken factual premise.)

If it matters whether homosexuality is or is not chosen for purposes of the First Amendment analysis (as it does to some, but by no means all, of the commenters), whose view counts? Almost surely not the critized audience, else the mafia, nosepickers, religious groups, whatever, could define themselves as protected. But probably also not the speaker in this kind of instance. Some sort of objective test is called for (though -- see point 1 -- I am very leery of being forced into this conclusion because of the government's decision to get into the education business in the first place), and on that test, well, it's innate.

Although it seems to matter to some commenters whether this case is like "blacks are shameful" or like "people who choose to believe X are shameful," at the end of the day, it's a tough case even if that issue is resolved.
4.22.2006 3:00am
Ex-Fed (mail) (www):
David, what's sarcasm?

By the way, does anyone read this ruling as restricted only to direct and explicit attacks on protected group status? In other words, can schools ban "affirmative action is wrong" and "enforce immigration laws" messages because some people interpret those as attacks on protected group status? How about "homosexual conduct is wrong?"

And would I be wrong to understand that under this decision, in the absence of proof of actual disruption, a school could ban a t-shirt that says "homosexuality is wrong" but not a shirt that says "Christian opposition to homosexuality is wrong"?
4.22.2006 3:04am
Ex-Fed (mail) (www):
One other thing that bothers me -- well, rather, one more of many. The majority pretty clearly thinks there was adequate evidence of likely disruption to satisfy that prong of Tinker, though they declined to decide on that ground. The dissent may have disagreed on whether there was enough evidence, but it certainly didn't disagree that Tinker allows limitation of disruptive speech. They could have ruled very cleanly on that ground. No need to find a right not to be offended. No need to wave a red flag at the Supremes.

Now, if SCOTUS takes it, the issues they have chosen to raise will be left to the tender mercies of Mssrs. Scalia, Thomas, Alito, Roberts, et al.

Foolishness.
4.22.2006 3:38am
SLS 1L:
Ex-Fed: I've never read Tinker, so I may be missing some critical piece of background, but I think your interpretation of Harper is correct. The 9th Circuit says it's limiting its holding to "instances of derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation," and says elsewhere that the students have to be "particularly vulnerable" and the speech needs to have the potential for "significant injury." There's also language in footnote 28 about how members of "a group that has always enjoyed a preferred social, economic and political status" need less protection from nasty speech directed at them.

Christians are a majority who have always enjoyed preferred status in this country, Christian students are not particularly vulnerable, and the "Christian opposition to homosexuality is wrong" t-shirt doesn't have the potential to cause them significant injury, so it probably can't be banned under Harper. Personally, I would let the schools ban it too, but that seems not to be the view of the Harper court.
4.22.2006 3:47am
Kevin Murphy:
This argument seems rather out of context. The shirt was worn in dissent to a school-sponsored event promoting acceptance of gays. The school opened the issue, not the student. If the *state* school can speak to a topic and then ban contrary views, there is no first amendment whatsoever. Political dissent to the actions of authority used to be the core of the speech right. If we give that up...
4.22.2006 3:48am
Ex-Fed (mail) (www):
Ah, someone pointed this out to me:

"Homosexuality is shameful" -- may be banned
"Christian opposition to homosexuality is shameful" -- may NOT be banned
But what about -- "Muslim opposition to homosexuality is shameful?"

Would we need a ruling from Stephen Reinhardt about whether Muslims or homosexuals are more oppressed? Might not that calculus change month-to-month, depending on the war on terror and NBC's Fall lineup? Maybe Reinhardt could maintain some sort of web page with the oppression rankings, and you could have a Firefox plugin to keep track of it for you, like the "Is Abe Vigoda alive?" plugin.

Really, the T-shirt kid is vile and I look foward to the day when a vastly greater percentage of Americans find his views contemptible. But this decision is lunacy.
4.22.2006 3:57am
SLS 1L:
Ex-Fed: I don't see anything in the decision that says you'd need to balance the competing claims of different minority groups. The test is entirely about the rights of the student who might be injured, not the rights of the student whose speech is being suppressed.
4.22.2006 4:04am
Nathan Hall (mail):
Mr. Carpenter ignores the fact that the school is engaging in viewpoint oriented discrimination here. A strong case can be made that the school should have discresion to choose between allowing and limiting political speech. But the notion that a state school can restrict only one side of what is indisputably a political debate between students cuts against the very core of the First Amendment, and smacks of indoctrination.
4.22.2006 4:30am
212 (mail):
Kevin, you are funny. It's not as if they're stopping the kid from wearing the t-shirt at all. He just can't wear it when it's disruptive or whatnot. The policy is pretty mucy your standard Constitutionally-kosher Time/Place/Manner restriction, even if you somehow concluded that every school function is magically transformed into a limited public forum for student speech.

That kid was still free to wear insults on his chest all he wants, so long as it's outside of the school's event. Any speech value the little rascal might lose is trivial compared to the way, for example, you can't peacefully march past the Republican National Convention when they hijack your city for blatent political purposes (and completely ruin your commute for a week, too).

Cf. kicking out Cindy Sheehan (Sp?) from the State of the Union Address. See generally "first amendment zones" . . . If you're in favor of this kid for the reasons you claim, I'm sure you are also offended to the core of your being by the five years of tax-payer dollars going to fund so-called town-hall meetings where the President takes supposedly open questions from an audience carefully screened for any deviation from his political ideology.

------------------

Nathan, it's a school. Indoctrination is just a synonym for what they do all day long. Besides, all that "viewpoint discrimination" mumbo-jumbo just comes down to how you define the terms. If it's a "positive identification forum," then the kid could have promoted whatever he was, so long as it did not reference others negatively. And again, all of that is assuming that a school event is some sort of forum, rather than, say, government speech or something similar.

And besides, unless you're infavor of judicial activism, you should support the elected and accountable school's ability to impose whatever constraints it wants.

------------------

Alot of what's out here sounds like post-hoc rationalization. But then, I think that's par for the course in any hot-button case. What would be more interesting, and frankly more credible, is why someone who disagrees with the underlying social outcome might agree with the result, and vice versa.

I'd like to think people of such integrity actually exist. But then, I really doubt that even Scalia would be true enough to his rhetoric as to permit a prohibition wine with no exception for the sacraments, if such a law were adopted by an elected majority.
4.22.2006 6:09am
Just Sayin:
"Schools should be given considerable latitude -- certainly more than Tinker seems to give them -- to ensure that students focus on the curriculum."

Well written, Dale. I agree.
(Glad Eugene hired you.)
4.22.2006 7:33am
Just Sayin:
"Schools should be given considerable latitude -- certainly more than Tinker seems to give them -- to ensure that students focus on the curriculum."

Well written, Dale. I agree.
(Glad Eugene hired you.)
4.22.2006 7:33am
anonymous22:
To even care about the psychological harm suffered by the "gay kid" requires an assumption that homosexuality is appropriate or justified in some way-- which takes us right back to the beginning of the discussion. To take the offense/psychological harm suffered into account as an important factor in the decision is basically to decide the outcome of the case.

P.S. It's not a time, place, and manner restriction because it amounts to a total ban on wearing the shirt in school-- not a declaration that the student may wear the shirt in math class but not english class.
4.22.2006 7:43am
anonymous22:
Also, the position taken by Carpenter on this is so incredibly opportunistic: "Schools should be given considerable latitude -- certainly more than Tinker seems to give them -- to ensure that students focus on the curriculum." That sound awful— as if Carpenter is advocating that schools should be transformed into reeducation camps.
4.22.2006 7:46am
Cornellian (mail):
To even care about the psychological harm suffered by the "gay kid" requires an assumption that homosexuality is appropriate or justified in some way-- which takes us right back to the beginning of the discussion.

One could say the same about, for example, Judaism. Lots of evangelicals believe Jews are going to Hell for not believing that Jesus is the son of God so how could being Jewish possibly be "appropriate or justified in some way?"
4.22.2006 9:31am
Cornellian (mail):
"Homosexuality is shameful" -- may be banned
"Christian opposition to homosexuality is shameful" -- may NOT be banned
But what about -- "Muslim opposition to homosexuality is shameful?"


Is there any difference between "Opposition to homosexuality is shameful" and "Christian opposition to homosexuality is shameful?" Does adding the word "Christian" on the front give you any more free speech rights?

I would think the corresponding ban would be on "Being Christian is shameful" which presumably can be banned on the reasoning of this decision.
4.22.2006 9:37am
JohnO (mail):
It seems to me that this is exactly why schools really should stick to an academic curriculum instead of a social curriculum. I know that's a hard line to draw, with debates over the teaching of evolution, etc., but when aschool start taking viewpoint positions on matters that are at allo socially or politically controversial, it rings a little hollow for the school to trumpet its right to suppress opposing speech to keep the kids focused on the curriculum.
4.22.2006 9:58am
Chris Lansdown (mail) (www):
"...is a judgment best left to school administrators and teachers."

I'm no fan of judicial activism, but all of my experience with public schools suggest that trusting the judgement of school administrators and teachers is just silly. A great many of them, though of course not all, are frustrated petty dictators. To trust their judgment is to ensure a great deal of abuse.

And it's not like anyone actually remembers what they've learned in high school anyway. Oh, sure, the top 10% might — maybe. But I've been a calculus TA teaching freshman at a decent university — I had a hard time believing that any of the people had graduated high school. Before we give school administrators and teachers the right to silence students at their whim, shouldn't we at least require some evidence that they're actually teaching their students something? I mean something on the order of test all of the students 4 years after they've graduated, and only schools whose student body passes then have the right to supress speech on the ground of disruption.

It's not like schools are actually hotbeds of learning, and it seems a bit extreme to forcibly supress speech because of what schools are in theory, rather than what they are in practice.
4.22.2006 10:15am
MDJD2B (mail):
Sorry I do not follow the logic of (a) separating schools from government or (b) wanting vouchers. Do you want more restriction on students? Do vouchers equal less restriction or just permission only for your point of view?

Neither. Vouchers remove schools from the constitutional constriants that restrict the way in which governmental institutions may limit free speech. A private school may limit pro-gay expression, anti-gay expression, both, or neither.
4.22.2006 10:50am
Ex-Fed (mail) (www):
"I would think the corresponding ban would be on "Being Christian is shameful" which presumably can be banned on the reasoning of this decision."

Footnote 28 would suggest otherwise, at least in the absence of a showing of disruptiveness.
4.22.2006 11:15am
Ken Arromdee:
In the one case, the student offends (wrongs? harms? victimizes?) others, and in the other, the woman is the one who is vicitimized. Frankly, it strikes me as perverse to suggest that these cases are at all similar.

In the one case, the woman wears skimpy clothing, and the rapist acts based on that. In another case, the student wears a T-shirt, and the other student gets offended by the message.

We don't blame the woman for how people react to her clothing; why should we blame a student for how someone reacts to his clothing?
4.22.2006 12:44pm
logicnazi (mail) (www):
I may say more later but I hardly think the fact that a gay student was picked on to some degree in and of itself shows anything special about the status of gays.

In particular my experience in school was that TONS of people were picked on for TONS of different reasons. For instance I was very much picked on despite belonging to no identifiable minority group. Now of course I think that picking on people is quite horrible and the harm is often underestimated but we only further distort the situation when we pretend that special groups are somehow hurt orders of magnitude more by children's cruelty.

I don't want to diminish the pain suffered by members of these minority groups. Rather I wish to point out that what is bad about being harrassed is feeling isolated, disliked, and excluded and all the time this happens to people not in identifiable minority groups. Therefore the history of harrasment for gay students seems only relevant to this case if a history of harrasment for students with bad style is relevant to wearing shirts mocking people for style.
4.22.2006 1:11pm
Russ (mail):
Kevin Murphy has hit the nail on the head here. The shirt was worn in response to a school sponsored event. If the event in question was about sentence diagrams or American history, the shirt would not have been worn. But a social agenda prompts social dispute, regardless of whether you agree with the message.

What if the school had sponsored a rally in support of Operation Iraqi Freedom and a student then wore a shirt that said, "Militarism is shameful." Would the child of a soldier have been justified in claiming such a shirt was disruptive?

The most troubling part of the decision is Reinhardt's focus on protecting minorities as historically oppressed, instead of focusing on the school's authority over all students. That's the PC part of this that's troubling. What happens when the pendulum swings inevitably to the other side? In 50 years, will courts say that shirts that say "Celebrate Homosexual Adoption" disrupt Christian children?

Schools should be about education, not politics. If the state brings it up, it should not be able to shut down opposing viewpoints.
4.22.2006 2:39pm
logicnazi (mail) (www):
JRL, Shangui,

I know you were not actually advocating this but merely explaining the idea Shangui but the following justification just doesn't fly.


The logic in the first instance is that the shirt is a direct attack on an aspect of one's person that is inherent to that person, like skin color, and that directly insulting that person disrupts his educational process and thus his rights. (Note that I'm not saying I agree with this, but that seems to be the basic idea.)


Now I understand the motivation for equating homosexuality to immutable characteristics and even agree with it in most cases. When we are evaluating statements on content there is a serious difference between statements of the form one shouldn't be religious, vote republican and one shouldn't engage in homosexual activities. In terms of our personal disapproval we shouldn't treat the choice to be homosexual in the same way we treat the choice to be vegetarian.

However, our justification for treating the choice to engage in homosexual activity (and it is the activity not the desire that is at issue here) differently than the choice to be vegetarian is because we are making the moral judgment that having homosexual inclinations justifies/warrants that person to homosexual behavior. The situation is analogous to the question of whether it is okay to criticize african american youth fashion. So long as we think there is no inherent harm in any particular fashion we view someone who criticizes the black youth fashions as really attacking the immutable characteristic of skin color. However, should we think that there is something inherently bad or problematic about black youth fashions (I'm thinking of the older black people who complain about the baggy pants) we treat it as a criticism of a choice.

In particular the fact that a moral/social judgment is being made when we view criticism of homosexual acts is most apparent when we contrast the situation with kleptomania. In both cases we have a behavior that is strongly determined by what we believe are inherent (genetic?) predispositions yet we don't view criticism of compulsive shoplifting as criticism of an immutable characteristic while we do with the criticism of homosexual acts. The difference being that we think it is unfair/wrong to ask someone who is homosexual not to engage in that activity while we don't feel the same about theft.

However, as much as I believe that criticizing homosexual behavior should be treated like criticizing race in the discourse of private citizens the very conclusion that an immutable characteristic is being attacked is a substantive moral claim, a claim which is very much under debate in this country. Thus legal decisions about first amendment grounds should no more assume criticism of homosexual behavior counts as a criticism of an immutable characteristic than it should assume Calvinism and conclude doing good acts is an immutable characteristic.

Having said this the situation is clearly different than that of criticizing the rape victim. The disanalogy is almost too obvious to state but one huge difference is the lack of any extremely harmful crime. Disrupting class may even be something the shirt wearer wishes to happen.

However, the underlying point is a valid one. This rule lets groups control debate by being sensitive about more issues and suffers from the same problems doing so in the Muslim situation did (encourages groups to be more sensitive or in this case even to start fights over shirts they don't like). Even worse it turns the first amendment on it's head by protecting majority views but not protecting minority views. Small enough minorities just won't have enough people to cause a disruption while views that offend the majority will always have enough people (think racism versus tolerance and compare how this rules protects the two messages).

Because of considerations like this I tend to end up believing that schools shouldn't be allowed to make almost any distinctions of this kind (racist T-shirts have to be okay if tolerance ones are). I think the right solution is merely to allow the school to ban all T-shirts with slogans as I think the harm from non-content neutral speech rules is much greater than the harm about not having any speech in a limited environment.
4.22.2006 3:15pm
212 (mail):
anonymous22, but this isn't a total ban. It's just a ban at the school, when the administrator thinks it's disruptive. There's a time and place for that kid's t-shirt: after class and outside school. If you disagree, please let me know how you square this with the T-shirt issue at the State of the Union Address, or our President's sham town-hall meetings. Also, how you condemned those practices at the time. (Or are those among the unenumerated Commander-in-Chief powers?)

Seems to me that opposing views are suppressed all the time. We don't allow political graffitti either. If he and his friends wanted to celebrate their straightness without reference to gays, I'm sure they would have been free to do so. Just happens that's not what they did in prior years, when it led to physical fights.

But he wanted to insult, not just be offensive. Refusing to acknowledge the difference here just creates a whiff of bad faith argument. It's not about the offense-taking (which might be countered with "thick skin," or cured with psychological help), it's about the insult-making (which is just poor child-rearing, but is also quite suitable to administrative regulation).

Considering that the constitution (though not some local laws) allows a random administrator to beat the kid for wearing the t-shirt, I don't see how making him take off the T is some kind of constitutional offense.
4.22.2006 5:34pm
MR (mail):
I think the whole immutable characteristic thing is a red herring if you approach this from a viewpoint that "attacks on groups are bad for education" point of view (which I think, by the way, survives the strictest of scrutiny - we shouldn't have schools where any group feels attacked in the hallways on a regular basis - whether by t-shirts or spoken word).

Whether homosexuality is immutable is irrelevant. Religion is not immutable - people convert all the time.

If you ban attack speech - attacks on religion, sex, clothing styles ("it's shameful to have long hair"), wealth ("poor people suck"), intelligence ("geeks are losers") then you are for the most part viewpoint neutral - it doesn't matter who you are putting down, you aren't allowed to do it - that doesn't belong in the hallways of a school. Wear the t-shirt to the legislature, the courthouse, or even the after school assembly, but not in the halls during class.
4.22.2006 6:54pm
Hans Bader (mail):
The Ninth Circuit's decision was bad for many reasons, including its hypocrisy. As the posts above largely concede, it was inconsistent with the Supreme Court's First Amendment ruling in Tinker.

It also squarely conflicts with the unanimous, bipartisan opinion of the Third Circuit in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001) holding similar speech to be protected.

Incidentally, Tinker did not open the floodgates to litigation, or undermine school discipline, the way many of the above posters contend. A very tiny percentage of lawsuits against schools are brought under the First Amendment.

Most challenges to school discipline are brought not under the First Amendment but under the Individuals with Disabilities Education Act, which creates an unqualified right in students with learning, behavioral, or physical disabilities to receive a free public education regardless of any misconduct they engage in, and makes it very difficult to suspend dangerous troublemakers who claim to have learning disabilities. The bulk of the remainder are brought under state law or the due process clause.

Very few suits against school officials are brought under the First Amendment, which demonstrates how little free speech principles conflict with ordinary rules of school administration and the need for order in the schools.

The Ninth Circuit was also dead wrong to suggest in a footnote that California state harassment law might actually require the school to ban the T-shirt, even though it was not directed at any particular gay student.

The limited reach of California harassment law was illustrated by a decision issued the same day as the Ninth Circuit's decision, Lyle v. Warner Brothers, in which the California Supreme Court rejected a harassment claim despite repeated offensive statements because they were not aimed at the plaintiff in particular and not, for the most part, at women in general. Lyle shows that banning the passive wearing of a T-shirt taking part in the debate over gay rights does not, as the Ninth Circuit claims, implicate the state's discriminatory harassment law.

The Ninth Circuit was biased and not evenhanded in suggesting in a footnote that speech that offends Muslims can be suppressed, while speech that offends whites or Christians might be protected. While whites certainly have not faced the kind of discrimination that blacks historically did, it makes little sense to treat Muslims as a protected class, when owing to affirmative action, being white is a disadvantage in college admissions or government contracts, and being Muslim, even a radical Muslim, is not -- as Yale's bending over backwards to admit a former Taliban official demonstrates.

Perhaps the bad reasoning of the Ninth Circuit's opinion can be traced in part to the fact that the author of the Ninth Circuit's opinion, Stephen Reinhardt, has close links to the ACLU and is married to the longtime head of the Southern California ACLU, Ramona Ripston.

The ACLU views the war on terror as being an imperialist, anti-Muslim crusade that is racist and discriminatory against Muslims. Thus, Reinhardt and the ACLU view Muslims as a protected class oppressed by wicked America.

And since abandoning their prior commitment to free speech on campus in 1993, many ACLU chapters have endorsed campus speech codes selectively prohibiting speech that denigrates "historically oppressed minorities" as "harassment."

The result of Reinhardt's opinion, which gives groups the Ninth Circuit deems historically oppressed a heckler's veto over speech that offends them, may be to ban from schools even mild depictions of the prophet Mohammed, such as those censored on South Park.

Yet Reinhardt hypocritically pats himself on the back as a self-proclaimed defender of the First Amendment.
4.22.2006 7:34pm
anonymous22:
212, decorum for the State of the Union address is governed by internal House rules, and the SC has always deferred on issues involving internal Congressional decorum. A Presidential "town hall" meeting is a quasi-public forum, like a debate, where the organizers have freedom to control the content of the event. In short, neither of these are actually "time, place, and manner" restrictions. TPM restrictions involve allowing the speech to occur in a slightly different form or at a different time, but are not total bans on speech.
4.22.2006 8:39pm
randal (mail):
The situation is analogous to the question of whether it is okay to criticize african american youth fashion.

Are you serious? Ok first off, being black doesn't inherently mean you want to wear baggy pants. It's totally different to say "that goddam gay rainbow is retarded" than "homosexual sex is evil". Homosexuality isn't defined in terms of rainbows, and blackness isn't defined in terms of pants. Homosexuality is defined in terms of homosexuality. It has 'sex' right in the word!

Second, from a practical perspective, is it the plan for homosexuals to go through life without having sex? That's a non-starter. It's plausible for black people to go through life without wearing baggy pants (many do), so criticizing their pants doesn't directly lead to a criticism of their (for lack of a better word) soul. Criticizing homosexual sex just because it's homosexual does directly lead to a criticism of their soul.

This should all be obvious. Is your theory that a virgin homosexual shouldn't be offended by a "homosexual acts are shameful" shirt? Give me a break. The whole "sin versus sinner" line of reasoning parallels Intelligent Design... let's see if we can tweak our public arguments just slightly so they're not technically offensive, taken at face value, but still let us push our offensive agenda, and maybe no one will notice.
4.23.2006 12:10am
212 (mail):
anonymous22, you protest to much, or maybe not enough.

Decorum for the State of the Union address is governed by internal House rules,

IIRC, those "internal House rules" didn't actually include a dress code for the State of the Union Address. But the Capitol Police still put the cuffs on Sheehan, and not the politician's wife asked to leave as a token measure of faux-evenhandedness.

A Presidential "town hall" meeting is a quasi-public forum, like a debate, where the organizers have freedom to control the content of the event.

I'd say it falls into "government speech" category. But now, can you really not see how this model applies? Schools are not streets or parks. They don't have to let the kids express themselves at all, much less intentionally target other students.

As for T/P/M restriction, your attempt to invoke conceptual severence doesn't hold up well. This restriction did not extend spacially beyond the school. Sure, his speech might not be as effective outside of the event he's trying to criticize, but that won't really prevent a T/P/M restriction. That kid was perfectly free to wear his shirt on some street corner 5-miles away from the "day of silence" if he really wanted to speak so badly.

Saying you can't wear an insulting shirt inside school during a special event is not honestly distinguishable, in my mind, from telling protesters they cannot peacably assemble outside the RNC, or the WTO meeting, or the White House, but instead have to go to a penned-in "first amendment zone." Unless you're going to hold "first amendment zones" unconstitutional (no, you can't wait until Bush II is out of office to feel this way), this kid's in no way entitled to some special protection for some right to be insulting.

Think about it this way: his first amendment zone was the very modest and reasonable restriction "outside of school."
4.23.2006 2:37am
Kevin Murphy:
212--

Let me get this straight: you think that saying that a behavior is shameful is "insulting"? Not even the 9th Circuit suggested that. They based it on lesser criteria, such as potential disruption or the potential for injuring a gay student's self-esteem. The latter argument leading to the conclusion that nearly any judgemental comment can be banned.

If someone wore a t-shirt saying "eating meat is shameful" to lunch, and the school did the same thing to him, would you feel the 1st Amendment well served? After all, someone eating a hamburger, seing the error of their ways and contemplating the vast numbers of cows they've murdered, might have their self-esteem irreparably harmed by the deadly insult.
4.23.2006 6:10am
Ken Arromdee:
That kid was perfectly free to wear his shirt on some street corner 5-miles away from the "day of silence" if he really wanted to speak so badly.

And the kids in Tinker were perfectly free to wear their black armbands outside the school grounds, right?
4.23.2006 12:00pm
amliebsch:
212 - one difference is that you aren't required to go to a presidential addres or a protest, but school attendance is compulsory. In any case, even time/place/manner restrictions must be viewpoint neutral. This is not a simple TPM restriction because the opinion itself authorizes only restrictions of speech for criticism of minorities. That's what the big deal here is. A valid TPM restriction would have banned all t-shirts with printing, or maybe all t-shirts about controversial issues.
4.23.2006 12:42pm
Marcus1 (mail) (www):
It strikes me that insulting kids who are over-weight or kids with disabilities might be more apt as analogies than racial epithets. If a child legitimately feels that being over-weight is a moral crime, should that give them the right to call the other students fatsos? This might be the analogy if one thinks one's sexuality and one's weigth is self-controlled.

To the extent it is not considered a choice, it might be considered similar to insulting kids with learning disabilities. Maybe a child strongly feels that all this talk about learning disabilities is BS, and people should either go by the regular standards, or be branded as "retards." Such a child might want to wear a shirt saying "Dyslexia means 'retard.'"

If anything, I think the Court tried to show more than it really had to by establishing the psycological and educational impact of these kinds of comments. I don't fault them, because I think it's relevant, but I'd say that merely requiring kids to be nice to each other should be justification enough. Schools should not have to allow students to say nasty things to each other. I don't think Tinker necessarily creates such a right either. The armbands were not verbal assaults.
4.24.2006 12:02am
randal (mail):
The armbands were not verbal assults.
4.24.2006 8:43am
raj (mail):
The armbands were not verbal assults.

Irrespective of that, there was no evidence (at least as reported in the US Sup Ct opinion) that the black armbands caused disruption in the school. There was evidence in the Poway case that the "Day of Silence" had caused disruption in the school the previous year. Although there was no evidence in the instant Poway case that there was or would have been disruption in the school in response to the T-shirt and Day of Silence in that year, it is not unreasonable for the school authorities to believe that there would have been.

The case before the 9th circuit was in response to a denial of a preliminary injunction, and was decided on affidavits from the parties. That is a horrible record to work from. Perhaps if the record had been fleshed out by a trial, more evidence would have been brought forward.
4.24.2006 10:26am
Thorley Winston (mail) (www):

The armbands were not verbal assults.


Neither is a T-shirt.
4.24.2006 1:57pm
dweeb:
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.

Shouldn't there need to be some showing of actual harm likely to come from enduring all this calumny?
Anyone ever notice that, for several generations now, our highest achievers, in school and after completing school, have also been the students who endured the most cruelty from their classmates? The 'nerds', 'geeks', etc.? How about that an ethnic group persecuted incessantly for THOUSANDS of years (Jews) disproportionately occupies the top ranks of education, industry, and government? As a non-athletic student, I constantly saw t-shirts and logos supporting the dominant belief structure that essentially said I was less than human because I wasn't skillful at or even interested in some activity that involved a ball, and yet I'm not an axe murderer today.
4.24.2006 4:29pm
dweeb:
This argument seems rather out of context. The shirt was worn in dissent to a school-sponsored event promoting acceptance of gays. The school opened the issue, not the student. If the *state* school can speak to a topic and then ban contrary views, there is no first amendment whatsoever. Political dissent to the actions of authority used to be the core of the speech right. If we give that up...

Exactly. Consider that the school that can promote one idea and ban dissent can, should the political tide turn, apply the same power to the opposite point of view.

The simplest litmus test is to put the shoe on the other foot. Ask yourself, if it were 30 years ago, what would supporters of this decision say if the school had an assembly to hear Anita Bryant speak, and banned gay pride t-shirts worn in opposition?

If your position depends on whose ox is being gored, then you've abandoned principle for self-interest.
4.24.2006 4:35pm