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Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:

Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:

I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever.

Except of course, according to Judge Reinhardt's more recent Harper v. Poway Unified School Dist., when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" (even if the remarks deal with important public debates, aren't personally addressed to any particular person, are in response to expressions of contrary views, and haven't been found to create a substantial risk of disruption).

The First Amendment, you see, doesn't protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects "any other person who disapproves of one or more of our nation's . . . policies for any reason whatsoever." But it doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation. It doesn't protect the Confederate flag, presumably because it's often seen as an expression of disapproval for the nation's civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)

And presumably it doesn't protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That's because in the Ninth Circuit there's now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is "derogatory and injurious" towards their "race, religion, and sexual orientation."

I'll say it again: Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. 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, and thus might be restricted.

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." And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception). What bothers me is the Ninth Circuit's newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.

SLS 1L:
Professor, I have to disagree with your interpretation of Tinker. From the opinion, what seems to me to be the core of the holding:
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.
Tinker at 19-20. The court goes on to describe the speech that can be prohibited as limited to "psychological attacks" or "abuse and intimidation." The standard is based not based on the viewpoint expressed, but on whether the particular expression constitutes a "verbal assault." For example, a student probably could not be penalized for writing a poem with an anti-gay theme for a class project.
4.24.2006 2:54pm
Glenn Bridgman (mail):
It seems to me that "Celebrate homosexuality" and "Homesexuality is shameful" are not neccesarily equal and opposite statements. Isn't it possible that it is the *way* the latter is expressed is the key issue here, rather than the core content of general opposition to homosexuality.
4.24.2006 3:02pm
Sydney Carton (www):
"The standard is based not based on the viewpoint expressed, but on whether the particular expression constitutes a "verbal assault."

How can you say that with a plain face when the section you quoted clearly says otherwise: "Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic..."

Sounds like the Prof is 100% right on this one. Another example of liberal brownshirt intolerance.
4.24.2006 3:03pm
Eugene Volokh (www):
SLS 1L: First, I think, you mean Harper, not Tinker.

Second, recall that the opinion applied not just to personal threats (of the sort that might normally be called "assaults"), or even to personalized insults. It applied to T-shirts that express anti-gay views, and even students' hand drawings of the Confederate flag shown to a few classmates (see West v. Derby Unified School Dist., 206 F.3d 1358 (10th Cir. 2000), which the Reinhardt opinion specifically cited favorably). So if the student's anti-gay poem would be read by any classmates -- for instance, if the student showed it to a few friends and they passed it along to others -- then it would be constitutionally unprotected, under the viewpoint-based Harper First Amendment exception. True, if no-one ever saw the poem, or (possibly) if only the teacher saw it, the matter would be different. But it's a funny sort of First Amendment right that is limited to speech that no-one sees.
4.24.2006 3:04pm
SLS 1L:
Whoops; I meant Harper above, not Tinker
4.24.2006 3:06pm
Anon1ms (mail):
"The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains."

Despite EV's excessive modifiers, and writing as a Southerner whose family has lived in the Deep South for at least ten generations, there is no doubt that in 99 out of 100 cases the use of the Confederate battle flag is intended to, at best, be a slight to black Americans and at worst a explicitly racist symbol.

It is the symbol of treason and racial oppression, which, of course, people have the right to express. Just not in school.
4.24.2006 3:07pm
Eugene Volokh (www):
Glenn Bridgman: Can you give me an example of how, after Harper, a student would remain free to express criticism of homosexuality, in response to others' defense of its propriety? Recall that Harper wasn't limited to epithets, or personalized face-to-face insults, or even unambiguous condemnation (consider the Confederate flag, which is a symbol with many possible meanings). The student's speech, while strongly condemnatory ("homosexuality is shameful"), was what it took to express a viewpoint of strong condemnation of homosexuality. What can he say, beyond "I'm not wild about homosexuality, not that there's anything wrong with it"?

If Harper were genuinely an attempt to control just the offensive form of the speech and not its offensive viewpoint, that might be a different story. But it's clear that it's the viewpoint -- criticism of minority sexual orientations, religions, and races -- that is the issue here.
4.24.2006 3:08pm
Glenn Bridgman (mail):
Isn't that the point? The rhetoric of the "homosexuality is wrong" debate is assymetric in such a way that one side is going to bear the brunt of suppression in school. If he wore, say, a shirt opposing gay marriage as a policy position, I would agree with you 100%. However, his shirt morally condemns his fellow students for who they are in inflammatory language, and that has consistantly been one of the exceptions to free speech.
4.24.2006 3:17pm
Eugene Volokh (www):
Anon1ms: It's certainly quite plausible to argue that schools should be free to restrict a wide range of speech, including symbols of treason and racial oppression. But it's much tougher to explain, it seems to me, why schools should be free to restrict symbols of treason and racial oppression, but not free to restrict Taliban sympathizers.
4.24.2006 3:17pm
Glenn Bridgman (mail):
append "in school settings." to my last post.
4.24.2006 3:18pm
Mackey:
I've posted on these scores before, and don't mean to over-play my hand.... but I think we should be frank about the level of anti-discrimination discourse involved on this blog. The assertion was that, the First Amendment "doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation."

First, I agree that a free speech policy or constitutional mandate should support such speech. But, that said, I take serious issue with the notion that these are "the nation's" (or "the state's") policy towards same-sex sexual regulations.

Again, there are far more substantial violations of free speech perpetrated against those who seek to defend alternative sexualities generally, or their own alternative sexuality particularly.
4.24.2006 3:19pm
jimbob (mail):
A) Anyone have links to MSM stories on this?

B) Anon1ms: My family and I have lived in the South forever and in my experience, Prof. Volokh's characterization is quite correct.
4.24.2006 3:25pm
XWL (www):
Judge Reinhardt and Napoleon the Pig, separated at birth?

'Some expressions of free speech are equal, but some are more equal than others'

Contemplating Prof. Volokh's most recent post, possibly the Harper ruling should be called the Seinfeld precedent, not that there's anything wrong with that (other than the gross, inequitable, and selective abridgement of free speech).
4.24.2006 3:25pm
jimbob (mail):
Glenn,

I don't think that condemning a lifestyle as morally inferior is fundamentally different. You still have to argue that the feelings and self-esteem of some individuals trump the free speech rights of other indiviuals.

Do you really think that a gay student feels different when he sees a shirt that says "homosexuality is morally wrong" than a student who's father is in the military feels when he sees a shirt that says "marines kill babies?"
4.24.2006 3:34pm
Proud to be a liberal :
The Supreme Court has already restricted student speech in Fraser and Hazelwood. Thus, the Harper case really expands the Fraser exception to make speech that is based on characteristics of race, religion, and sexual orientation equivalent offensive and therefore similar to lewd and vulgar speech. In Boroff, the Marilyn Manson T-shirt itself was not lewd or vulgar, but the Sixth Circuit held it could be barred because of the offensiveness of Marilyn Manson.

I do think that one problem with the disruption test is that it discriminates against speech based on the reaction of the audience. Therefore, a well-informed student group could cause disruption simply to bar speech that they dislike. But why privilege the people who cause the disruption?

Now on a related topic (the First Amendment in schools), I noted that parents in Georgia are trying to remove the Harry Potter books from teh school libraries because they discuss evil! The books are the most frequently borrowed books in the library system. I would think that books that promoted reading (especially for boys) would be praised.
4.24.2006 3:35pm
Bruce:
Eugene, I'm not sure your viewpoint-based interpretation is correct, or at least, I think the decision can be defended on other grounds (caveat: I've only glanced at Harper). One reading of Harper is that it permits banning T-shirts that denigrate other students. So, "Non-AP Students Are Stupid" could also be proscribed, although it's hard to imagine a realistic scenario where such a message carries the same insulting power. Conversely, to answer your question, how could the student here express his views, he could put them in a poem and read them at an event off-campus. (If he can't do that the conflict with Lavine is manifest. But can you point me to language in the Harper opinion that says he can't do that?)

What I think is interesting here is that Harper is a retreat from Cohen, not from Lavine. In Cohen, the majority chided insulted onlookers that they should just "avert their eyes." But here, Reinhardt treats the fellow students as a captive audience, like the bus ad cases, not voluntary readers as in Cohen. And it's not obvious to me that Reinhardt is relying on the age difference (and there was evidence in Cohen that some of the people in the courthouse were children, in any event).
4.24.2006 3:36pm
jrose:
EV,

Is it possible to establish a First-Amendment, K-12 exception which allows schools to restrict speech which demeans someone simply because of who they are (homosexuals, Christians, minority and majority members alike) while still mandating that speech which merely offends (but is not disruptive) is protected?
4.24.2006 3:42pm
scarhill:
I'm just waiting for Judge Reinhardt's opinion in the case of a pro-Taliban student who advocates crushing homosexuals under walls.

Jim
4.24.2006 3:45pm
JoshL (mail):
Wild question here:

A number of people have argued that "Homosexuality is shameful" is unacceptable because it's condemning a person or group as a whole. How about instead of saying "Homosexuality is shameful" the kid's shirt said "Anal sex is shameful"? (Granted, the word "sex" is probably banned as lewd, or something). Or even "sodomy is shameful"? Presumably, that's condemning an act, rather than a set of people. It's probably also closer to what the shirt intended to convey in the first place anyways.
4.24.2006 3:51pm
just me (mail):
I'm thinking of sending the kid a free T-shirt that says, "Censorship is shameful." Bet the principal would love that.
4.24.2006 4:07pm
Bruce Wilder (www):
In my view, public Schools are obligated to promote certain civic values and views, so the ideal of complete viewpoint-neutrality is simply not possible, when the School has properly adopted a particular viewpoint (or range of viewpoints).

The case arises, because the School has promoted tolerance of homosexuality and homosexual students, and a student wishes to oppose the School's policy of tolerance and tolerance-promotion. The School, it seems to me, is properly obligated to respect expressions of dissent, but not necessarily required to simply ignore defiance. It is a potentially subtle point of distinction, in which fine points of the differences between free expression and regulation of conduct and discipline come into play.

The Confederate flag, to take one example, does indeed have a variety of symbolic meanings. One of original meanings is the advocacy of treason, i.e. conducting war and insurrection against the government of the United States. A public School is obligated to oppose treason, as a matter of policy. The advocacy of treason is going to be problematic.
4.24.2006 4:12pm
Hans Gruber (www):
"The court goes on to describe the speech that can be prohibited as limited to "psychological attacks" or "abuse and intimidation." The standard is based not based on the viewpoint expressed, but on whether the particular expression constitutes a "verbal assault." For example, a student probably could not be penalized for writing a poem with an anti-gay theme for a class project."

Yes, and how isn't that viewpoint discrimination? If the somebody said that Republicans have been historically misrepresented in the media and in education ("oppressed, if you will), so any speech demeaning them (or their policies, because you can't demean their policies without demeaning them) is verbotten on school grounds, would that be viewpoint discrimination? Speech promoting tax cuts would be allowed, but speech saying "tax cuts are shameful" would not be.

Under Harper, it's conceivable that criticism of Islam, illegal immigration, and affirmative action would all be disallowed, while speech in support of these positions would all remain constitutionall protected. How is that viewpoint neutral?
4.24.2006 4:14pm
Hans Bader (mail):
Judge Reinhardt is so bizarre that even the satirical publication The Onion could not have come up with him.

What a hypocrite, to argue that the First Amendment is absolute when it comes to Taliban sympathizers, but is outweighed by competing considerations when speech criticizes homosexuality or offends Muslims.

And yet, a Ninth Circuit panel agreed with him 2-to-1.

One more reason to split the Ninth Circuit, so that one-fifth of the nation's population will not have to live under its wacky rulings.
4.24.2006 4:17pm
Hans Gruber (www):
"One reading of Harper is that it permits banning T-shirts that denigrate other students."

No, the decision only creates a right to be free from demeaning speech for "historically oppressed" and "vulnerable" minorities. That's the problem.
4.24.2006 4:18pm
TC (mail):

"One reading of Harper is that it permits banning T-shirts that denigrate other students."

No, the decision only creates a right to be free from demeaning speech for "historically oppressed" and "vulnerable" minorities. That's the problem.

The beauty of it: In 25 years, will those non-oppressed and non-vulnerable groups, after being subject to permissible public denigration all that time, be entitled to protection as "historically oppressed?"

What we have is temporal equal protection: at some point during history, everyone will have their viewpoints suppressed.
4.24.2006 4:26pm
Houston Lawyer:
How can a discussion of sexual morality ever be content neutral? It is clear that those advocating gay rights will tolerate no dissent. We'll see soon whether there is a sodomy exception to the first amendment to go along with the abortion exception.
4.24.2006 4:35pm
Bruce:
Hans Gruber and TC, I know it's fun to get all riled up, but can you point me to language in the actual Harper opinion that says what you're saying it says?
4.24.2006 4:39pm
Ex-Fed (mail) (www):
Free speech exceptions, like genetically engineered dinosaurs in awful movies, are known for slipping their bounds and being employed in ways the author of the exception did not intend -- indeed, often in the opposite way than the author excepted.

Would any one of us break a sweat in framing a justification for extending this right not to be offended to Christians or some other group in power? Footnote 28 notwithstanding, it would be easy -- just fiddle with the level of generality ("religious groups have historically suffered discrimination") or string some examples of harassment or persecution together without considering whether they accurate reflect the whole.

Reinhardt lobs this bomb into a society where a conservative party with strong religious ties dominates three branches of government. It's a society where Christians make up a huge majority and evangelical Christians a solid majority and yet a large number of them have convinced themselves that "happy holidays" is some sort of coercive hate speech and that there is a war on their favorite holiday. How stupid would Reinhardt have to be not to suspect that his little exception will hop the fence?

I am consistently astounded by people who argue (correctly) that the burden of free speech has always fallen disproportionately on disfavored groups, but who are blind to the fact that free speech exceptions have fallen even more heavily on such groups.
4.24.2006 4:39pm
Roger Schlafly (www):
I agree with JoshL that the T-shirt is condemning sodomy, not a sexual orientation. Those who use the term "sexual orientation" are usually careful to distinguish it from sexual practices. The Bible says nothing about sexual orientation, and neither does this T-shirt.
4.24.2006 4:45pm
Hans Gruber (www):
SLS1L quoted it at the top of the thread:


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.
4.24.2006 4:45pm
neutral:
jrose,

Is it possible to establish a First-Amendment, K-12 exception which allows schools to restrict speech which demeans someone simply because of who they are (homosexuals, Christians, minority and majority members alike)


Bad examples. Who you are may be a racial or gender characteristic, and a few other things. Christian is not who you are, it is what you believe, which is way different. As for homosexuals, it is bitterly debated, of course.
4.24.2006 4:55pm
Ex-Fed (mail) (www):
The other issue left unresolved here is how direct the "verbal assault on the basis of a core identifying characteristic" must be to fall under the Harper exception. "Illegal Immigrants must be deported?" "Enforce immigration law?" "Affirmative action is shameful?" "Affirmative action is wrong?"

There are plenty of people who think those sentiments are inherently assaults on ethnic groups. There was a time when I would have assumed that a court would separate out the policy argument and the group it is likely to impact, and say that the statements are not attacks. After Harper, I'm not so sure.
4.24.2006 5:00pm
Clayton E. Cramer (mail) (www):
Judge Reinhardt is married to the ACLU's Southern California chapter director. This sort of hypocrisy is part of why I suffer from "ACLU Derangement Syndrome." It almost sounds like Professor Volokh may be catching a milder form it.
4.24.2006 5:01pm
Agree or disagree (mail):
with what Reinhardt did, but don't call him a hypocrite on the First Amendment. He's arguably done more to protect free speech than any other federal judge -- including cases involving strongly conservative viewpoints. For example, in White v. Lee (2000) he upheld a Bivens suit against HUD for investigating three opponents of a homeless shelter in Berkeley. The conservative Center for Individual Rights celebrates the ruling here:

http://www.cir-usa.org/cases/white_v_lee.html
4.24.2006 5:10pm
David M. Nieporent (www):
It almost sounds like Professor Volokh may be catching a milder form it.
Really, Clayton? Because I read both of his posts on this topic, and neither one blamed the ACLU for a decision made by a Ninth Circuit judge in a case in which the ACLU didn't take part. Doesn't sound like he's suffering from the disease... but sounds like your symptoms aren't lessening.
4.24.2006 5:12pm
Hans Bader (mail):
The right not to be offended conferred by the Ninth Circuit on what is describes as "historically oppressed" minorities -- which it bizarrely defines to include Muslims, who were not even in America until recently -- employs the same terminology as the model campus speech and harassment codes restricting free speech advocated by the ACLU's California chapters.

Thus, I think the ACLU must share some blame for this awful decision and its theoretical underpinnings.

And for its possible result, which will be to give Muslim students the right to exercise a heckler's veto over even mild depictions of the prophet Mohammed, such as those censored on South Park.

As Clayton Cramer points out, the Ninth Circuit opinion was authored by Judge Reinhardt, who is married to the ACLU's longtime Southern California leader.

On the other hand, Jordan Budd of the San Diego ACLU conceded publicly that plaintiff Harper might have had a valid free speech claim under current law, although the ACLU did nothing to help him.

Reinhardt is dead wrong, and ignorant of history, to claim that Muslims are a historically oppressed group. Simply because they are not a majority does not make them oppressed.

It may be that he views the war on terror as an imperialistic, discriminatory assault on Muslims by an overly powerful America, as many in the ACLU do. If so, that reflects badly on him, not on those he seeks to silence.
4.24.2006 5:17pm
Hans Gruber (www):
"but don't call him a hypocrite on the First Amendment."

Whatever the merits of his past decisions, he is a hypocrite.
4.24.2006 5:17pm
SLS 1L:
Professor: I suppose there will be no way of expressing certain points of view if their content is simply to attack other students. If my point of view is that Jews are Christ-killers, that blacks should be spat upon, or that Susie is a slut, there will probably be no way of expressing those views that doesn't constitute a verbal assault. If your position is that I must be able to express those views on a t-shirt in school, that constitutes a redudctio ad absurdum of your position.

There are probably some criticisms of homosexuality that wouldn't fall into this category, particularly those that focus on particular behaviors rather than on an identity category (as this shirt did) and refrain from the kind of hostile tone this shirt used. "Gay sex is a sin" is very different from "Homosexuality is shameful" (though it is also a different point of view).
4.24.2006 5:17pm
Hans Gruber (www):
"I suppose there will be no way of expressing certain points of view if their content is simply to attack other students."

WRONG, under Harper one can "attack other students" aslong as they're not one of the favored minorities. That's the problem, SLS1L. Why are you willfully avoiding this conclusion?
4.24.2006 5:22pm
Clayton E. Cramer (mail) (www):

Professor: I suppose there will be no way of expressing certain points of view if their content is simply to attack other students. If my point of view is that Jews are Christ-killers, that blacks should be spat upon, or that Susie is a slut, there will probably be no way of expressing those views that doesn't constitute a verbal assault. If your position is that I must be able to express those views on a t-shirt in school, that constitutes a redudctio ad absurdum of your position.
Remember which side decided that vulgar and offensive speech is constitutionally protected. It was liberals, when they decided Cohen. "Homosexuality is shameful" is far less offensive than Cohen's jacket, just by the mere fact that the F-word (at least back then) was not widely used.

Your ox is being gored, finally, and you aren't happy about it. I want to consider how many conservative oxen your side was goring, torturing, and disemboweling with Lenny Bruce, Cohen, and virtual child pornography. Now you are upset that someone wants to wear a T-shirt that says, "Homosexuality is shameful"?
4.24.2006 5:24pm
Seamus (mail):

One more reason to split the Ninth Circuit, so that one-fifth of the nation's population will not have to live under its wacky rulings.



With most of the sitting 9th Circuit judges assigned to the new "12th Circuit," which will cover Guam and the Northern Mariana Islands.
4.24.2006 5:25pm
Clayton E. Cramer (mail) (www):

Reinhardt is dead wrong, and ignorant of history, to claim that Muslims are a historically oppressed group. Simply because they are not a majority does not make them oppressed.
Of course, throughout the history of Islam, Muslims have been oppressors. The tax codes and criminal statutes of Islamic nations have historically privileged Muslims relative to not only pagans (by the Muslim sense of the word) but even relative to Jews and Christians. Today, a number of Muslim nations continue this oppression.

If there's an historically oppressed group in the context of American history, it is not Muslims.
4.24.2006 5:27pm
Clayton E. Cramer (mail) (www):

WRONG, under Harper one can "attack other students" aslong as they're not one of the favored minorities. That's the problem, SLS1L. Why are you willfully avoiding this conclusion?
Because the favored minority in this case has a certain level of self-centeredness that prevents them from seeing that they are just one small part of the population. That's why AIDS funding levels have been so disproportionate to the size of the afflicted population.
4.24.2006 5:30pm
Anon Y. Mouse:
Um, no. The shirt said "Homosexuality is shameful," not "homosexual acts are shameful."
4.24.2006 5:30pm
TC (mail):

ho·mo·sex·u·al·i·ty ( P ) Pronunciation Key (hm-sksh-l-t, -m-)
n.
Sexual orientation to persons of the same sex.
Sexual activity with another of the same sex.

Looks like the term "homosexuality" can go either way. Ahem.
4.24.2006 5:36pm
SLS 1L:
Hans - I think that is a misreading of Harper. The student who is not a member of a disfavored minority group (which you Orwellianly label a "favored" group) is not totally barred from relief; they would have to show a risk of actual injury. The difference is that "favored" groups are presumptively vulnerable, while "disfavored" groups are not.
4.24.2006 5:38pm
Eugene Volokh (www):
Clayton: I agree that protection for profanity has probably been, among the public and among elite opinion, a mostly liberal position. But it seems to me like something of an overstatement to say that the "liberals . . . decided Cohen." Cohen was written by Justice Harlan, generally thought of as a moderate conservative Justice, joined by fellow moderate conservative Justice Stewart and liberal Justices Douglas, Brennan, and Marshall. The dissenters, on the merits (Justice White focused only on a procedural question) were then-moderate-conservative Justice Blackmun and moderate conservative Chief Justice Burger, plus mostly liberal Justice Black.
4.24.2006 5:41pm
SLS 1L:
TC - dictionaries are lousy guides of actual use, no matter what judges seem to think. Ask any linguist.
4.24.2006 5:42pm
Hans Gruber (www):
SLS1L, That's a strawman. Of course no student is "totally barred from relief." The subtantial disruptive standard of Tinker is still intact. I never suggested otherwise.

Why isn't Harper viewpoint discrimination?
4.24.2006 5:46pm
TC (mail):

TC - dictionaries are lousy guides of actual use, no matter what judges seem to think. Ask any linguist.

Maybe so, because when I think "homosexuality is shameful," I think of the act and not someone's personal feelings.

Most people see "shame" in what you do, not in what you desire.
4.24.2006 5:49pm
NickM (mail) (www):
How about "Scientology is shameful"?

How about "Scientology is a fraud"?

How about "Scientologists are insane"?

How should a school's ban on any of these 3 t-shirts come out?

Nick
4.24.2006 5:55pm
Aaron:
"Most people see "shame" in what you do, not in what you desire."

Really? Pedophiles, even reforming pedophiles are routinely denigrated and stigmatized based upon what they desire. Your idiosyncratic view of "homosexuality" being synonomous with acts, rather than orientation notwithstanding, (not to mention your thinly veiled reference to bisexuality) it's clear that the court used its common sense in giving the shirt the meaning that the majority of its intended audience would understand it to mean.
4.24.2006 6:12pm
Clayton E. Cramer (mail) (www):

But it seems to me like something of an overstatement to say that the "liberals . . . decided Cohen." Cohen was written by Justice Harlan, generally thought of as a moderate conservative Justice, joined by fellow moderate conservative Justice Stewart and liberal Justices Douglas, Brennan, and Marshall.
Three of the five justices in the majority were liberals. Harlan and Stewart might well have been "moderate conservative" for that time--but just as many of the ideas that we would call "liberal" today would have been something quite different a generation ago, the same is true for "conservative" or "moderate conservative." When I was graduating high school in 1974, the following ideas were considered lunatic fringe, and completely unrespectable:

1. Inflation was largely determined by money supply.

2. Free market capitalism was the most effective way to improve the economic situation of the average person.

3. Government regulation of air travel, trucking, and electric utilities was bad for consumers.

Yet all three of these ideas are now not only respectable, but mainstream.

On the other end of things, the following ideas would not have been unrespectable in 1974:

1. Men should be able to marry men, women should be able to marry women.

2. Sex with animals is okay. (Not just, "shouldn't be illegal" but "there's nothing wrong with it.")

3. Schools should encourage homosexuals to feel good about themselves, and organize events to promote this.

These ideas would have been regarded as completely whacko in 1974--a sign, perhaps, of mental illness. Yet all three of these are mainstream today. They aren't a majority position in the general population, although they almost certainly are among professors and lawyers.

There's a lot of talk about political polarization in America. Part of it is that the left has moved farther left, and the right has moved farther right.
4.24.2006 6:16pm
SLS 1L:
The view that there's nothing wrong with sex with animals is a mainstream view and the majority opinion among professors and lawyers? Count me skeptical. Evidence, please?
4.24.2006 6:24pm
Clayton E. Cramer (mail) (www):
Hans Gruber asks:


Why isn't Harper viewpoint discrimination?
Because hostility to homosexuality is "icky."

When I graduated from high school, there was awareness of homosexuality, and I suspect that most of my peers shared my view, "That's not for me, but if that's what turns you on, that's fine. But I'm not interested, so leave me alone." I am sure that if a student came to school wearing a T-shirt that expressed support for homosexuality, the school would have sent him home to change--and they would have tried very hard to emphasize to him that they really didn't much care (that wouldn't be very liberal, would it?), but they didn't want any disruptive behavior that it might cause.

I'll take a revision of Tinker that lets the school decide that certain topics don't belong on school grounds--viewpoint neutral. You can't wear your "Homosexuality is shame" T-shirt, but neither can students or teachers distribute gay pride materials, either.

Much more reluctantly, I would accept the same free speech rules as in adult society--agani, viewpoint neutral. I am reluctant because you can't usefully teach students who feel that they have a right to stand up in the middle of a lecture or discussion and start yammering on about how whatever the student feels like. That would be an intolerable situation (rather like some of my son's middle school classes in California), but it would be a consistent liberal position. Dumb, but well-intentionedly dumb.

What I will not accept in any form at all is the sort of cynical dishonesty of liberals like Judge Reinhardt, who believe in giving the school authority to suppress viewpoints that they don't like, bu requiring the school to follow adult rules when it comes to viewpoints that liberals do like.
4.24.2006 6:26pm
BobN (mail):
As someone who has been beaten up while being called "faggot", punched at by a stranger (I ducked) for looking at a friend in an apparenlty offensive way, spit at for holding hands with my partner, etc. I can confirm that opponents to "homosexuality" are, indeed, expressing their disapproval of a certain "homosexual activity", i.e. breathing.
4.24.2006 6:27pm
BobN (mail):

Maybe so, because when I think "homosexuality is shameful," I think of the act and not someone's personal feelings.


Do you think "heterosexuality" means just coitus?
4.24.2006 6:30pm
Clayton E. Cramer (mail) (www):

The view that there's nothing wrong with sex with animals is a mainstream view and the majority opinion among professors and lawyers? Count me skeptical. Evidence, please?
Mainstream view: sure. See this article about Professor Peter Singer's arguments that bestiality is a good thing. Singer is an internationally recognized ethicist. He's not a guy wandering the streets with a crudely made sign.

Please explain to me how the government retains the authority to prohibit sex with animals, post-Lawrence. Some of the laws that Lawrence struck down were originally bans on bestiality, and suffer all the same problems of reflecting Christian morality and hostility to non-procreative sex.
4.24.2006 6:32pm
BobN (mail):

Some of the laws that Lawrence struck down were originally bans on bestiality, and suffer all the same problems of reflecting Christian morality and hostility to non-procreative sex.


Sins of omission, Clayton, sins of omission.

The Texas law struck down in Lawrence had been modified by the Texas legislature in 1972 (74?). At that time, the good people of Texas chose to decriminalize beastiality, along with all manner of heterosexual "perversions". They left on the books only the proscription of same-sex sex. They apparently suffered from the same anti-gay obsessions you do.
4.24.2006 6:36pm
Glenn Bridgman (mail):
It seems to be a constant that Clayton Cramer entering the thread destroys what is (usually) a good discussion.

Part of the problem here is that the statement on the shirt in fact tethers two seperate components. The first component is political expression on the topic of homosexuality in society--theoretically protected a la the black armbands in Tinker. The second is an attack on the actually homosexual students in the school--unprotected, a la a racial epithet.

So the real question here is, how do we weigh the varying importance of these two factors? A general answer is, to me at least, not at all obvious.
4.24.2006 6:56pm
Anonymous Reader:
Does anyone else wonder why the school was holding a Gay/Lesbian/etc event to begin with? What does that have to do with a solid education? Could it be proselytizing? No, that's only for those religious folk. And please don't tell me that you can't teach tolerance any other way. Shoot, Martin Luther King's Birthday, a FEDERAL HOLIDAY, isn't even observed in some places!!

Anonymous Reader
4.24.2006 7:14pm
Ex-Fed (mail) (www):
"And please don't tell me that you can't teach tolerance any other way. Shoot, Martin Luther King's Birthday, a FEDERAL HOLIDAY, isn't even observed in some places!!"

Do those places teach tolerance?
4.24.2006 7:19pm
Anonymous Reader:
Ex-fed,

Well, last I checked, Vermont and Arizona didn't observe those holidays until recently (2000 or so). If I recall, that's one of the reason's why the Superbowl wasn't held in Arizona several years ago.

But my broader point is that you don't need to teach tolerance with a particular agenda. What would be the argument if a public school held an event on tolerance by some religious groups and someone wore a shirt that said, "God is evil" or something to that effect? Some would argue that being religious is a choice and being a homosexual is not. But that particular discussion hasn't been settled now has it?

Anonymous Reader
4.24.2006 7:31pm
Bruce:
OK, I've found the answer to my question -- on pages 29-31 of the opinion, and notes 27 &28, the majority limits its decision to "injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group." So my hypothetical "Non-AP students are stupid" shirt does fall within the first Tinker test on this analysis. I've still got two questions:

(1) Could Eugene's objection be addressed by making the test *broader*? E.g., a prohibition on *all* speech that seeks to insult by "strik[ing] at a core identifying characteristic of students"? It seems to be the limit to expressions about particular groups that is causing Eugene and others the most agitas.

(2) In fact, why not get even broader than that? Why shouldn't the school be able to prohibit my "Non-AP students are stupid" shirt -- even if it does not lead to demonstrable disruption? It doesn't directly target an identifying characteristic -- signing up for an AP class -- and maybe it expresses a strongly held viewpoint; but it's insulting, and mean-spirited, and the students are somewhat captive. Shouldn't that be enough?
4.24.2006 7:39pm
Bruce:
Correction: So my hypothetical "Non-AP students are stupid" shirt does NOT fall within the first Tinker test on this analysis.
4.24.2006 7:40pm
Daniel Chapman (mail):
Is it possible to articulate a belief that sexual activity with a person of the same sex is "wrong" without it being considered an "attack upon homosexuals" by people who disagree with you? I've asked this question before, but I guess Mr. Carpenter didn't read his comments.
4.24.2006 8:05pm
Hans Gruber (www):
Bruce, yes to reach the same result without being viewpoint neutral the standard would have to broader. This would probably conflict with Tinker's standard of "substantial inteference of school discipline" or whatever so that needs to be done by the Supreme Court, not Judge Reinhardt.

The case gets around Tinker by creating a new right of "historically oppressed" or "vulnerable" minorities to be free from perceived criticism of their "core characteristics."
4.24.2006 8:38pm
hey (mail):
To the point upthread that schools can teach "tolerance" towards homosexuality: learn to speak English. Tolerance means not actively suppressing activity or persecuting it. Tolerance of homosexuality involves not physically threatening homosexuals. Acceptance means thinking that there is nothing wrong with it. You can tolerate homosexuality while thinking and saying that it is shameful, thus denying acceptance.

So many people want to force acceptance of certain things, rather than simply seeking toleration. These same people do not want to tolerate, never mind accept, people with certain religious beliefs (and conservatives in general). I think that we all need to learn the lesson of our ancestors and work towards tolerance: we can all be convinced of our own righteousness, proselytize others about this righteousness, but we can't wage civil war against the heathens. Satisfy yourself that everyone who disagrees with you is evil, stupid, &/or going to hell, but stop trying to use the government against them.

That so many liberals want to use the government to force acceptance onto their opponents while denying them toleration bespeaks an ignorance of history and a wildly misguided approach.

As previously mentioned in many posts, I do not agree with Clayton about social issues. I generally share EV's social opinions (essentially libertarian), but I am vigourously opposed to the methods of the groups with whom I agree. It's ridiculous, but rather common for libertarians, to have to ally against people who you agree with because they are simply resorting to force rather than debate.
4.24.2006 8:44pm
ReaderY:
It's worth mentioning that the Supreme Court has supported school censorship of nondisruptive but sexually suggestive speech based on "traditional values", consistent with the rationale for general obsenity laws, indecency in broadcasting etc. Such views are sometimes harmonized into general First Amendment theory, and sometimes regarded as essentially exceptions to the First Amendment, justified on original-intent grounds that various actions of the First Congress evidenced an intent not to have the First Amendment cover these matters.

Perhaps Judge Reinhardt finds it appropriate to come up with newer conceptions of "traditional" values, arguably more appropriate for our times and at any rate more in line with Judge Reinhardt's own value system. But there is a difficulty if judges attempt to create their own, novel exceptions unanchored in well-settled law or in bounded legal concepts such as original intent.

If judges are permitted to exercise such powers on their own in common-law fashion, if "traditional" exceptions become merely things that irk a particular judge's ire, what will become of the First Amendment's core? How can exceptions, each reasonable-seeming, be prevented from eating away the core? Traditionally it was the unreasonable ideas that were thought most in need of protection. Unreasonable ideas, reflected on and thought about, can sometimes seem more reasonable after all.

What would have happenned in the 1950s, 1960s, and 1970s if the conservative equivalents of Judge Reinhardt had applied analagous extensions of traditional categories to prohibit discussion of the very idea of liberalizing viewpoints on homosexuality, anti-discrimination laws, etc. on the grounds that such ideas were inherently disruptive? Liberals have benefitted greatly from judges' past refusal to extend traditional categories, and should not forget this.
4.24.2006 9:00pm
Random Maniyak (mail) (www):
Let's Test the System
Students should use the pro-gay "Day of Silence," April 26, to test the level of tolerance in the public schools by wearing a range of messages on their clothes that day, messages that will require the school authorities to distinguish what can and cannot be said in the public schools. This is in response to the decision in Harper v Poway in which the 9th Circuit Court of Appeals, led by its most liberal, activist jurist, Stephen Reinhart, who has no problems bending the law to his preferences, upheld a preliminary injunction banning a student T-shirt message that said (handwritten on what appears to be masking tape or white adhesive tape): "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" AND "HOMOSEXUALITY IS SHAMEFUL." For example:

SILENCE IS SHAMEFUL
BE SILENT AND KNOW THAT I AM GOD.
BIGOTRY IS SHAMEFUL
TOLERANCE IS SHAMEFUL
PROMISCUITY IS SHAMEFUL

You get the idea.
4.24.2006 9:11pm
Brian G (mail) (www):
What do you expect? This is Reinhardt we are talking about, undoubtedly the most disgraceful federal judge seated today.
4.24.2006 9:49pm
Nunzio (mail):
Maybe this Harper kid should wear a jacket that says FUCK JUDGE REINHARDT.
4.24.2006 10:23pm
Randy R. (mail):
Funny thing about 'acceptance' and 'tolerance.' When I was growing up, I was taught through parents and relatives that blacks were bad people. Stay away from them. I did, for quite a while. then I went to college and met many wonderful black people. They became my friends, along with pleny of other white people. I went from avoidance, to tolerance, to acceptance. Sure, some blacks I've met are horrible people, just like whites and every other category.

But my life is much richer knowing and loving people of all ethnicities.

Now consider gays. People are taught that gays are 'shameful.' Stay away from them. But I believe schools SHOULD teach toleration, and even acceptance. Why? Because otherwise you might be missing out on some of the best friendships you could have. Schools should be about challenging your beliefs, not going along with them. As Anne Morrow Lindbergh once said, 'Only through growth, change, and progress, can true security be found."

Students in today's society will have to live and work in a community that has blacks, muslims, gays, atheists, and so on. It's a basic skill to have to tolerate at the least these people, otherwise you will be leading a very isolated life. And to learn acceptance? What, jeez, isn't that exacly what Jesus taught, to love one another as we love ourselves? he didn't say only whites, or straight people. He said everyone! For those of you who want to teach religion in schools, or ethics or morality, why is it that that one commandment of Jesus is the one thing you persistently ignore?
4.24.2006 11:57pm
Yankee_Mark:
There is great irony and humor in the snippet from the Penn State Policy Manual that is quoted in the Fluehr complaint document :)

(Acts of) intolerance will not be tolerated at The Pennsylvania State University.

Hmmm...
4.25.2006 12:14am
Lev:
"Women for children, men for pleasure." Moslem proverb.
4.25.2006 1:02am
Mike BUSL07 (mail) (www):
Yankee, that's hilarious. It's like the old "execute all radicals."
4.25.2006 3:02am
Ross Levatter (mail):
I think the degrading comments about Judge Reinhardt are uncalled for. He is an EXCELLENT actor. (I especially liked his role in the Beverly Hills Cop series...)
4.25.2006 3:36am
raj (mail):
From the post:

Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme...

This is a mischaracterization of Reinhardt's dissent. Reinhardt specifically stated that he joined Kleinfeld's dissent, except for the relatively minor reasons that he mentioned in his separate opinion. The bases for Reinhardt's dissent must be read in that light.
4.25.2006 5:57am
Hans Gruber (www):
"Schools should be about challenging your beliefs, not going along with them."

Oh, the student's beliefs were challenged. He just wasn't allowed to defend them. That's a step further, I think. And why does this "challenging beliefs" thing only seem to go one way?

Hey, I'm with you to an extent. Schools reflect community values and these values are essentially indoctrinated into kids. That's OK. I know some would prefer to call it education or enlightenment, but let's not kid ourselves. It's essentially indoctrination. This is the socialization process of schools, the boundaries may be fuzzy but nobody should really desire we throw it out the window.

The thing is, this sort of moralizing and socializing should probably be limited to issues that the community generally agrees. I'm not sure we're quite there yet on homosexuality, perhaps in some communities but definitely not in most. It's one of the areas where schools should probably refrain from moralizing. I know a lot of people like to compare race and homosexuality, but the American just don't feel they're comparable (and maybe never will).
4.25.2006 6:47am
Hans Gruber (www):
I couldn't help but share this. Harlan's dissent in Tinker is interesting in light of this case. While he disagreed with the opinion of the Court, he felt that a case like Harper would warrant ruling for free speech.

"To translate that proposition into a workable constitutional rule, I would, in cases like this, cast upon those complaining the burden of showing that a particular school measure was motivated by other than legitimate school concerns--for example, a desire to prohibit the expression of an unpopular point of view, while permitting expression of the dominant opinion."
4.25.2006 7:13am
Daniel Chapman (mail):
Still no response... I'd really like an answer from the "It's not his message, it's how he said it" crowd, please.
4.25.2006 10:37am
jrose:
Daniel Chapman,

"I will not tolerate what God has condemned" is OK by me. "Homosexuality is shaemful" is not.
4.25.2006 12:07pm
Esquire:
I too wonder about Daniel Chapman's question. What about a T-shirt that hypothetically said something like, "I respectfully disagree with homosexuality," or perhaps something a bit less corny to that effect?
4.25.2006 12:09pm
Tocqueville:
I suspect, Daniel, that you won't receive such a response. There is no satisfactory answer to your question.

I want to thank Professor Volokh for his courage in taking on Reinhardt's blatant hypocrisy.
4.25.2006 12:14pm
Daniel Chapman (mail):
"I will not tolerate what god has condemned" is ok... but it doesn't mention WHAT god condemned... would it be ok to wear a shirt saying "God has condemned homosexuality?" Or would that be an "attack?"
4.25.2006 12:31pm
snark (mail):
I second Maniyak's idea about encouraging students to wear a spectrum of shirts, so that the school can try to sort out the linedrawing. And following up on Nick M.'s Qs re Scientology-themed shirts, I suggest that Scientologist students counter the common gay-activist "Silence = Death" shirts with ones that say "Silence = Birth."
4.25.2006 1:06pm
Andy Freeman (mail):
If "shameful" is out, what word/phrase can be used to express disapproval?

Can the word/phrase be used in other contexts?

Which reminds me, would "Republicans are Shameful" pass muster?
4.25.2006 1:13pm
David M. Nieporent (www):
I second Maniyak's idea about encouraging students to wear a spectrum of shirts, so that the school can try to sort out the linedrawing.
Hmmm.

"I am not a big fan of homosexuality."
"Homosexuality is unpleasant"
"I mildly dislike homosexuality."
"Homosexuality is unnatural."
"I strenuously object to homosexuality."
"Homosexuality is condemned by god."
"I am repulsed by homosexuality."
"Homosexuality is shameful"
"I hate homosexuality."
"Homosexuality should be illegal."

Let's see Reinhardt sort that one out.
4.25.2006 1:56pm
David M. Nieporent (www):
That views expressed in the last comment were purely for the sake of legal illustration; they do not represent the views of the commenter.
4.25.2006 1:58pm
Ben Bateman (mail) (www):
I never got past the idea of sexual orientation as a core identifying characteristic. What kind of twisted world does Judge Reinhardt live in, that he considers a person's favorite method of sex to be vitally important? Surely most people think about others using more elevated and sophisticated considerations.
4.25.2006 2:08pm
Justin (mail):
EV's unfortunate and inflammatory rhetoric aside, none of the above 80+ posts seem to address Reinhardt's opinion which interprets the 1st Amendment through the prism of the 14th Amendment in that case - granted, many people, particularly textualists, originalists, or formalists will not find that portion of the opinion persuasive, but if it isn't persuasive, that's the reason for it. To pretend Reinhardt didn't include that portion of his reasoning in the opinion is neglectful, at a minimum.

That being said, I could indepedantly defend the false schism proffered by EV - the First Amendment is more important when it defends unpopular speech. Yes, yes, I know many people think that because it is academically "PC" to support gay rights (though all PC means in this case is there's no good reason to continue to support bigotry if you use rationality, so irrational people resort to "PC" arguments). But in the context of a public high school, to think that gays and lesbians are the cool kids and don't need actual protection from harrassment, intimidation, and violence is an exercise in theory devoid of common sense.

On the other side, a (nonthreatening) POEM (done, I assume, as an in class assignment, and not done solely for the intent to provoke) with a "violent theme" that is not shared by even a handful of that person's classmates is going to have no harmful effect whatsoever, and seems exactly like the type of unpopular speech traditionally protected by the First Amendment.

For EV to be outraged over the real harm done by persecution of gay (mostly boys) in high schools around this country in order to support some foolish hypocracy (or more to the point, to support EV's philosophical allies and preserve EV's own self-confidence in those alliances) is, to put it mildly, unfortuante. That doesn't necessarily mean that Reinhardt's opinion is correct. But there's a large leap between simply incorrect and unreasonable and outrageous.
4.25.2006 2:13pm
jrose:
I'm OK with "God has condmened homosexuality", but not with "Republicans are shameful". I see a distinction - in degree - between something which is offensive and something which demeans a person simply because of who they are.

For those who posted the satirical T-shirt sayings, are you arguing that "Faggots are filthy" is OK (assume it is OK under Tinker - it is not disruptive)? If not, where would you draw the line and on what basis?
4.25.2006 2:35pm
Proud to be a liberal :
Moving beyond the legal issues, it would be helpful to give the schools guidance on how to address the fundamental problem at issue. First, students in middle school and high school are developing their sexual identities, and some are starting to identify themselves as gay. The schools have a serious and legitimate interest in eliminating anti-gay violence, bullying, and other harassing behavior aimed at students who may be considered gay by their peers (correclty or incorrectly). How can they promote respectful behavior by students in a viewpoint neutral way that does not offend the Christian right?


And it does seem to me that some of the T-shirt ideas are really mean and rude, when considering that there may well be students who are gay who may see the T-shirts. There obviously has been an effort by the Christian right to bring their religious views into the public school using students, including student T-shirts. Why should people who recognize that there are gay students in high schools promote wearing deliberately provocative, mean T-shirts?

Many on the religious right believe that the only way to heaven is to accept Jesus. Yet, I don't think anyone has proposed wearing T-shirts to school that say "Jews will go to hell unless they accept Jesus." Why is that? Perhaps because it is commonly accepted that such a statement is not appropriate in a public setting open to people of different faiths.
4.25.2006 2:38pm
SLS 1L:
I think much of this discussion has failed to take account of Judge Reinhart's reasoning. Reinhart found that under Tinker, speech that speech that damages students' "sense of security" and "interferes with their opportunity to learn" by damaging their "psychological health and well-being" and their "educational development" is unprotected. Reinhart went on to find that speech that attacks members of a historically vulnerable minority group on the basis of a core characteristic interferes with their sense of security and educational development.

Is the claim of those who oppose this decision (a) that students have a constitutional right to damage the education and psychological health of other students or (b) that attacks directed at core characteristics of members of historically vulnerable minority groups doesn't do this?

Speech is being singled out not based on its content, but on its potential for damage.
4.25.2006 3:01pm
Daniel Chapman (mail):
Yes, and conveniently, it seems that any possible argument from one side of the debate has "potential for damage." I object to this decision because it is viewpoint discrimination and because it will encourage people to claim victimhood status to silence any disagreement.

That's assuming, of course, that "potential for damage" is really a neutral term and not will be applied evenly across the political spectrum. Somehow, I really doubt that's the case.
4.25.2006 3:05pm
snark (mail):
How about "the Goddess does not like homosexual acts," so that Reinhardt's PC filter gets scrambled? Or better yet, an oppressed minority Muslim wears a shirt with "Allah does not approve of homosexuality."
4.25.2006 3:08pm
amliebsch:
Perhaps because it is commonly accepted that such a statement is not appropriate in a public setting open to people of different faiths.

But we're not arguing about whether or not it is appropriate. We are arguing about whether or not it may be constitutionally banned. Surely you don't suggest that all "inappropriate" speech lacks constitutional protection?
4.25.2006 3:09pm
Hans Gruber (www):
SLS1L, stop misrepresenting the opinion. The opinion does not say that students have a right to be free from offensive speech. It says that CERTAIN students, Reinhardt's favored minorities, have a right to be free from offensive speech.

And can we PLEASE stop with the "core characteristic" mumbo jumbo? What is a core charactertistic? Does this mean innate, immutable, or just important? If religion can be a "core characteristic," then why isn't Harper's religion a "core charactertistic"? Oh, because he isn't a member of a "historically oppressed" or "vulnerable" minority?

Permissable: "Christianity is shameful."

Not permissable: "Islam is shameful."

Permissable: "Homophobia is shameful."

Not permissable: "Homosexuality is shameful."

Permissable: "No human being is illegal."

Not permissable: "Enforce our immigration laws!"

But, in your deluded mind, this isn't viewpoint discrimination, it's merely identifying the most "harmful" speech. Wouldn't we all like to silence our critics and the thoughts we deem corrosive and without merit? Perhaps, but the First Amendment is supposed to prevent, rather than accomodate, that perspective.
4.25.2006 3:24pm
Daniel Chapman (mail):
Actually, that wouldn't be a bad rule, but it's definitely not consistent with Tinker.
4.25.2006 3:24pm
Hans Gruber (www):
And, to point out the obvious once more, the case cannot meet the "substantial interference" requirement of Tinker.

Justice Black (in dissent) noted that the speech was disruptive:


While the record does not show that any of these armband students shouted, used profane language, or were violent in any manner, detailed testimony by some of them shows their armbands caused comments, warnings by other students, the poking of fun at them, and a warning by an older football player that other, nonprotesting students had better let them alone. There is also evidence that a teacher of mathematics had his lesson period practically "wrecked" chiefly by disputes with Mary Beth Tinker, who wore her armband for her "demonstration." [518] Even a casual reading of the record shows that this armband did divert students' minds from their regular lessons, and that talk, comments, etc., made John Tinker "self-conscious" in attending school with his armband.



And, yet, the majority believed that this evidence of disruption did not rise to the level of "subtantial intereference with school discipline."
4.25.2006 3:39pm
vince (mail):
Interesting chain of comments above. Not being a regular (or even irregular) churchgoer/observantly religious person myself, I'm reluctant to say this, but it looks like what a lot of people are arguing about is essentially an issue of what is tasteful and appropriate to speak in mixed company where what's said could insult or deeply offend someone else. On the one hand, our free speech rights militate in favor of being able to say just about anything; on the other, it used to be the widely-accepted/acknowledged province of social/community institutions to instill values like tolerance, virtue, etc. with the result that most everyone would understand that, while it's legal to say things, sometimes it's just inappropriate. And here we are in 2006, where the judges of legality have now also largely assumed the role of those social institutions, and they are increasingly conflating the legality and propriety of speech. While no one can or should want to turn back time, I wonder what legislative or other action would realistically stand a chance to redefine/narrow the role of the courts so that we can protect the ideas underpinning this country's founding and government? I don't know too many people - gay, straight or whatever - who relish the idea of living under the legal AND social dictates of unelected judicial rulers.
4.25.2006 3:43pm
Ben Bateman (mail) (www):
It's very simple, Hans: Liberals are rational , and their views are objectively correct, whereas those who disagree with liberals are irrational and their views are objectively incorrect. It may seem like the liberals are unfairly forcing their views on captive students and silencing dissenting views, but in reality they're just bringing truth to the benighted masses, and preventing evil bigots from harming the psychic health of tender minorities. It isn't the liberals' fault that everyone else is so ignorant and wicked.

Liberals like Judge Reinhardt selflessly tackle the daunting task of bringing superior knowledge and virtue to an ignorant and recalcitrant public, and we should be grateful that they take the trouble to do so.

(PS: The above was sarcasm.)
4.25.2006 3:44pm
Hans Gruber (www):
"While no one can or should want to turn back time, I wonder what legislative or other action would realistically stand a chance to redefine/narrow the role of the courts so that we can protect the ideas underpinning this country's founding and government? I don't know too many people - gay, straight or whatever - who relish the idea of living under the legal AND social dictates of unelected judicial rulers."

I don't know, I'm one of those "turn back the clockers" myself. I think you are right; as was Justice Black in his Tinker Dissent:

"The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools . . ." in the United States is in ultimate effect transferred to [Judge Reinhardt]."
4.25.2006 3:51pm
Rhymes With Right (mail) (www):
Glenn Brigman argues that "Celebrate Homosexuality" and "Homosexuality is Shameful" are not symetrical statements, and therefore should not be granted identical constitutional protection.

Let me therefore pose a slightly different scenario -- suppose the shirt in question said "Condemn Homosexuality". Containing identical sentiment in different (but symmetrical) verbiage, would the fundamental rights guarranteed by the First Amendment include the right to wear such a shirt? Or would it still fall outside the scope of the fundamental liberties of students?
4.25.2006 4:10pm
Archon (mail):
I think people are misrepresenting the viewpoint nuetral arguments. There is a distinct dfiference between these two viewpoints:

"Christianity is Good"
"Christians are Evil"

One is supporting a certain belief while the other is attacking it. This is much like:

"Gay people should be accepted"
"Homosexuality is a sin"

Again each statement deals with different content not viewpoints. Two divergent viewpoints would be something like:

"Gay people should be accepted"
"Gay people should not be accepted".

Assuming schools can regulate such speech under Tinker or Fraser, the Supreme Court has held that unprotected speech can be regulated on a content basis (Virginia v. Black).
4.25.2006 4:25pm
Jon Rowe (mail) (www):

I never got past the idea of sexual orientation as a core identifying characteristic. What kind of twisted world does Judge Reinhardt live in, that he considers a person's favorite method of sex to be vitally important? Surely most people think about others using more elevated and sophisticated considerations.


This is silly. And I think based on those with whom Ben has argued in the past, he knows better.

Sexual orientation is much more than one's "favorite method of sex." It is as its heart about the need to find one's better half. And most heterosexuals do indeed define themselves through their spouses. Their spouses, should they be lucky enough to have one for the long term, are indeed of the most if not *the* most important thing in their lives.
4.25.2006 4:27pm
Anonymous Reader:
Sorry, but sexual orientation is not a defining characteristic. If you see a plain picture of someone, i.e. a drivers license photo or something like it, you can't tell if they're religious, homosexual, a bigot, a neonazi, a KKK member, a member of the black panther party, or a reporter etc. All of these can be considered a "group" of people. Someone could say that neonazi's are a "minority", would they then have standing to complain about a "Neonazi's are shameful" t-shirt? People can give themselves all kinds of labels, but not one of them can be a defining characteristic. Each of us is an amalgamation of attitudes, cultures, morals, etc. We're all distinct individuals, yet some of us may have similar beliefs, activities, inclinations, whatever.

To say that homosexuality describes a "person" is ridiculous. Does heterosexuality describe a person? Or is that a inclination? Do we call people who like young kids a pedophile? Or are they called pedophiles because of their activities?

The bottom line is that all of these are just titles or labels that people have adopted.

I won't even touch on whether or not the shirt is/should be allowed. Why in the world was the school having a gay/lesbian day to begin with? Are black panthers given a special day? How about neonazis? "Hey, we may not like X, but we should tolerate it!" Or "... this is not about toleration... but about acceptance." Why shouldn't we accept neonazis? Or how about KKK members? Someone say that they aren't accepted because they advocate violence. Well, a lot of groups advocate violence, but do all of the individuals in said group feel the same?

Sorry to ask all of these rhetorical questions, but this is not open and shut as some would have us believe. This is obviously a highly contentious social issue that has no business in a High School classroom since it provides no educational value (the assumption being that HS is for the basic fundamentals).

Anonymous Reader
4.25.2006 5:28pm
Chimaxx (mail):
Ben Bateman: As a dyed-in-the wool liberal, I think this decision is wrong--not in its idea that there are some expressions that schools should be allowed to prevent students from wearing all day on a T-shirt, but in the belief that "Homosexuality Is Shameful" rises to that level.

Had the T-shirt in question read "Kill All Fags," I would applaud the court siding with the school. (And I they should ban the opposing "All Homophobes Must Die" T-shirt, at the same time.) Such T-shirts move beyond expressing fundamental moral disagreement--which, like the T-shirts in this case, should be protected, especially for high-school-age students (and what a teaching opportunity for any number of students the "Homosexuakity Is Shameful" shirt could be)--and into direct intimidation, threat and exhortations to violence, which should be banned on school grounds.
4.25.2006 5:37pm
SLS 1L:
Hans - I am not misrepresenting the opinion. Reinhart's decision concerned verbal assaults on the "core characteristics" of members of vulnerable minority groups because that was the kind of speech at issue in the case. Nothing in the opinion precludes a finding that there are other kinds of speech that interfere with students' educational opportunities/interfere with their psychological well-being.

I still want an answer to my question: do students have a constitutional right to interfere with the education of other students? Do schools really have no power to block shirts that say "Jews are Christ-killers"?
4.25.2006 5:57pm
Jon Rowe (mail) (www):

Sorry, but sexual orientation is not a defining characteristic. If you see a plain picture of someone, i.e. a drivers license photo or something like it, you can't tell if they're religious, homosexual, a bigot, a neonazi, a KKK member, a member of the black panther party, or a reporter etc.


1) You can't tell if they are left-handed either. Sexual Orientation is as much of an innate and unchosen characteristic as handedness.

2) Some homosexuals claim to have "gaydar" and can indeed tell whether someone is gay via their mugshot. Indeed, I can show you some straight faced mugshots and I think many heterosexual people would be able to tell sexual orientation.


To say that homosexuality describes a "person" is ridiculous. Does heterosexuality describe a person?


Yes.


Do we call people who like young kids a pedophile? Or are they called pedophiles because of their activities?


Pedophilia harms children. End of discussion. That's why the acts are wrong. Pedophilia's defining characteristic of "wrongness" makes it entirely distinguishable from homosexual acts between consenting adults.
4.25.2006 6:13pm
Hans Gruber (www):
"Nothing in the opinion precludes a finding that there are other kinds of speech that interfere with students' educational opportunities/interfere with their psychological well-being."

SLS1L, how disingenous!

I supposed Tinker could have explicitly limited its decision to non-verbal speech against unpopular wars. But, wait, they didn't do that!

Reinhardt explicitly limited the reach of the decision because "different circumstances require different results." That is, speech Reinhardt isn't offended by should be treated as the First Amendment actually commands.

Of course there is "nothing in the opinion [that] precludes a finding that there are other kinds of speech that interfere with students' educational opportunities/interfere with their psychological well-being." But the argument that future judges are free to reject the Reinhardt's viewpoint discrimination is hardly an argument in favor of Reinhardt's viewpoint discrimination.
4.25.2006 6:27pm
Anonymous Reader:
Jon Rowe,

Please don't misinterpret me. I am not trying to equate homosexuality with pedophilia. I was merely trying to state that we don't call people pedophiles for no reason; they are called pedophiles because of their acts. Just as an arsonist wouldn't be an arsonist without committing some specific act(s) that qualify them as arsonists.

So if heterosexuality describes a person, does bisexuality describe a person? Or is it an inclination/act?

But again, why did the HS hold the event to begin with?

Anonymous Reader
4.25.2006 6:29pm
Adam (mail):
While I think Reinhardt was wrong in the recent case, isn't that opinion quite easy to reconcile with the Taliban poem just by stating that the things one says in writing in a class assignment are not necessarily paraded on display to intimidate and harass other students?

In other words, under his reasoning, a student should be able to write an essay for a government class opposing the Lawrence decision, but couldn't put the text of that essay on the back of his denim jacket. Sensible?
4.25.2006 6:38pm
Hans Gruber (www):
"While I think Reinhardt was wrong in the recent case, isn't that opinion quite easy to reconcile with the Taliban poem just by stating that the things one says in writing in a class assignment are not necessarily paraded on display to intimidate and harass other students?"

Did you not read what Volokh quoted?


I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever.


How do these sentiments not apply to the Harper case?
4.25.2006 6:45pm
Seriously? (mail):

1) You can't tell if they are left-handed either. Sexual Orientation is as much of an innate and unchosen characteristic as handedness.


So I gues my "left-handedness is shameful" T-shirt is unconstitutional too.
4.25.2006 6:50pm
Hans Gruber (www):
"do students have a constitutional right to interfere with the education of other students? Do schools really have no power to block shirts that say "Jews are Christ-killers"?

I answered a similar question earlier. It depends. Under Tinker there must be "substantial inteference of school discipline." It's unlikely that a shirt like this would cause more disruption than the war protesters did in Tinker, so I would have to say it would probably be protected. But I can conceive of a case where the constitutional standard would be met as well. Should it be protected? Well, that's a different question.

All this said, I wouldn't have a problem with a ruling that said X speech is needlessly provocative and likely to "substantially intefere with school discipline." If Harper had been decided this way, it's doubtful we would have ever heard of the case.
4.25.2006 7:04pm
SLS 1L:
Not that I've ever read Tinker (hence "1L"), but Reinhart claims there's also an exception in there for speech that interferes with the rights of other students. Is your claim that this langugage isn't in Tinker at all?
4.25.2006 7:20pm
Ben Bateman (mail) (www):
Jon Rowe: "Core identifying characteristic" is Reinhardt's phrase, and it doesn't make much sense. Taken literally, it would refer to physical characteristics that we would use in identifying someone, such as height, weight, sex, race, hair color, etc. But obviously that wasn't what Reinhardt had in mind.

Instead, I think that Reinhardt meant core self-identifying characteristics, that is, the answer to the question: Who am I? There are countless ways to describe any given person, but each of us takes a small subset of those characteristics to define ourselves.

Each person's subset is different. If you ask a hundred people: "Who are you?", you'll get a wide range of answers. Some people will tell you their job or profession. Others will tell you about their past accomplishments, their skills, their friends, their family, their religion, their genealogy, their race, their political views, their hobby, their physical characteristics, or their favorite sports team. More likely, you'll get three to six of those.

People define themselves in all sorts of ways, and some of those self-definitions are better than others. My point is that it's awfully shallow to define yourself in terms of how you like to have sex. It's like saying: "Hi, I'm Ted, and I like to eat steak." Elevating a favorite animal pleasure to a place of key importance in your life suggests that you don't have much of a life.

What I inferred from Judge Reinhardt's statement is that he views a person's sexual orientation as a profoundly important aspect of their existence. I find that view shallow at best, and dehumanizing at worst. I believe that we are more than our genitals.
4.25.2006 7:23pm
Ben Bateman (mail) (www):
SLS 1L: The letter 'L' seriously offends me. Every time you use it, I suffer intense psychic harm. Its widespread use, by you and others, is interfering with my ability to learn and work. Please refrain from using it in the future. You have no constitutional right to interfere with my work and education through your flagrant misuse of speech. Your constitutional right to free speech ends the moment I decide that my feelings are hurt, and I've decided that the letter 'L' hurts my feelings. I'll keep you posted on whether any other letters upset my delicate psychic balance.

(PS: That was sarcasm, too.)
4.25.2006 7:33pm
Hans Gruber (www):
"Not that I've ever read Tinker (hence "1L"), but Reinhart claims there's also an exception in there for speech that interferes with the rights of other students. Is your claim that this langugage isn't in Tinker at all?"

No, that's in there. It's a short case, go ahead and read it. Dale Carpenter explained the "rights" prong well in his post.


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.
4.25.2006 7:57pm
Daniel Chapman (mail):
I just finished a substantial moot court argument based on Tinker, Fraser, and Hazelwood, and this is the first time I've ever heard of a "rights of others" prong of Tinker. Here's what the case actually says:

"A student's rights do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason -- whether it stems from time, place, or type of behavior -- materially disrupts class work or involves substantial disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech." Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 512-13 (1969).

The way I read this, students can interfere with the rights of others BY creating a material disruption in the school. Tinker says nothing about speech that affects the "rights of others" in any other way.
4.25.2006 8:21pm
Adam (www):
Hans: it's the difference between dissent alone and dissent plus harassment of others.

I'd have decided Harper otherwise -- once you authorize a pro-gay day, you have to allow polite anti-gay speech. But that doesn't mean I think the two cases are irreconcilable.
4.25.2006 8:33pm
Daniel Chapman (mail):
Adam: Then I'll ask you the same question... can you separate the dissent from the harassment? I don't think it's possible because any statement against homosexuality will be perceived as an "attack" on homosexuals.

I still don't think "Shameful" constitutes an attack... especially since "homosexuality" is ambiguous. It could mean the activity or the character trait.
4.25.2006 8:50pm
Elais:
Ben Bateman,

Are you heterosexual? Have you suffered discrimination because you are heterosexual? Identification by sexual orientation is very profound aspect of existence, hence all the rhetoric and activism against homosexuality. If sexual orientation wasn't profound, the controversey about homosexuality wouldn't exist at all would it? The religious fundamentalists wouldn't be as het up as they are would they?

If we are more than our genitals, why is there still sexual discrimination? Why do we still need laws against sexual discrimination? Unless you can guarantee no one discriminates against someone because they are gay, jew, female, etc. Laws will still be needed, perhaps forever.
4.25.2006 8:54pm
Daniel Chapman (mail):
We're talking about SPEECH here, elias... not discrimination. I'll leave the rest of your post alone...
4.25.2006 8:59pm
Dan28 (mail):
FTR, I'm as liberal as it gets, I support equal rights for gays (including marriage) and I think the Harper decision is terrible. If the right to free speech means anything, it is the right to offend others, even if the offended others are members of persecuted minority groups. I don't see any tension between my support for gay rights generally and my objection to Harper - in fact, I believe that both are aspects of our fundamental right to express ourselves as we choose.

Anyway, I suppose I'm not adding much except to say that people should not assume that one judge speaks for an entire political viewpoint.
4.25.2006 9:13pm
Jon Rowe (mail) (www):
Ben:

See my last blogpost essay on John Adams and stubborness, because I'd imagine the same thing is going on here with you. You are much too smart to believe this.


My point is that it's awfully shallow to define yourself in terms of how you like to have sex. It's like saying: "Hi, I'm Ted, and I like to eat steak." Elevating a favorite animal pleasure to a place of key importance in your life suggests that you don't have much of a life.


But that's not what "I'm gay" or "sexual orientation" means. Rather what you describe would be more like, "Hi my name is Ben and I like it when my wife is on top." "I'm gay" is more like the simple fact of wearing a wedding ring.


What I inferred from Judge Reinhardt's statement is that he views a person's sexual orientation as a profoundly important aspect of their existence. I find that view shallow at best, and dehumanizing at worst. I believe that we are more than our genitals.


It is profoundly important! I'd imagine that your wife is of profound importance to you!
4.25.2006 9:20pm
Daniel Chapman (mail):
But speech "attacking" married people is perfectly acceptable.
4.25.2006 9:22pm
Ben Bateman (mail) (www):
Elais: "Identification by sexual orientation is very profound aspect of existence."

That's where we disagree. I don't think that getting your sexual thrills through homosexual conduct is any more profound than getting your thrills from watching midget mud-wrestling.

Maybe you believe, as Jon Rowe does, that there's more to sexual orientation than a preferred method of sex. If that's true, then please explain. What is it about homosexuality that you and Judge Reinhardt consider so profound?
4.25.2006 9:40pm
Hans Gruber (www):
Daniel Chapman,

No, I think the Court intended "rights of others" to mean harrassment, threats, libel, etc. The interpretation you give is that it's essentially redundant. Here's a paragraph that makes it clear they are distinct (link to Tinker):

"There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students."
4.25.2006 9:40pm
Ben Bateman (mail) (www):
Jon: You're missing the point. I understand that you consider homosexuality, however you understand it, to be profound. (Though I would be interested in your explanation of why it's so profound.) All I'm asking you to understand is that I don't consider it to be profound.

Can we agree that homosexuality's profundity or lack thereof is a matter of opinion? Is it a subject on which reasonable people can disagree? That's the key question here, because Judge Reinhardt declared homosexuality to be a "core identifying characteristic" without citation or explanation. He didn't present that as his opinion; he presented it as a self-evident point of law. Can't we agree that he was mistaken in doing so?
4.25.2006 9:55pm
SLS 1L:
On the subject of coreness: is the fact that straight guys like women rather than men a trivial matter to them? Count me skeptical.
4.25.2006 10:00pm
Jon Rowe (mail) (www):

Can we agree that homosexuality's profundity or lack thereof is a matter of opinion? Is it a subject on which reasonable people can disagree?


No. I don't think so. Homosexuality is profound because "sexual orientation" is profound. Homosexuality is profound for the same reason why you find your relationship with your wife to be profound. I think you understand this, and acting as though you don't, or that there is nothing to be understood, is to be willfully obtuse.

We might as well let the cat out of the bag. Let's reveal your normative assumption: Yes, "sexual orientation" is indeed profound. But only heterosexual, not homosexual orientation.
4.25.2006 10:37pm
Adam (www):
Daniel asks: can you separate the dissent from the harassment? I don't think it's possible because any statement against homosexuality will be perceived as an "attack" on homosexuals.

It's a fact-based question, involving both how the statement was received and how administrators reasonably could have predicted it would have been perceived by this particular student body. I do think there's a t-shirt expressing similar sentiments that would have been more clearly censorable, but I don't think this one quite reached that level.
4.26.2006 12:57am
ReaderY:
On reflection, I'm not sure if this discussion has considered the import of BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675 (1986), http://caselaw.lp.findlaw.com/scripts/getcase.pl? navby=search&court=US&case=/us/478/675.html, which held that students could punish students for nonobscene language that is merely sexually suggestive or salacious, and held that

"It is a highly appropriate function of public school education to prohibit the use of vulgar and offensive terms in public discourse."

Under Beth El, schools can prohibit "vulgar and offensive terms" because they are "offensive to the modesty and decency of many faculty and students." The Beth El court held that such language has an inherently disruptive character.

Beth El developed a concept of what is "vulgar and offensive" based on conservative concepts of sexual morality.

One can certainly argue that Bethel School District should be overturned, but of course Judge Reinhardt can't do this and has to accept it as it is.

Given Beth El's existence and his duty to enforce it, Judge Reinhardt is essentially proposing updating it, redefining what is "vulgar and offensive" in light of what Judge Reinhardt might argue is merely bringing it up-to-date to current social mores.

Why is this wrong? Why can't a school do this? I personally think it's a bad idea to extend these categories beyond their traditional moorings, but it also strikes me that the wrongness of this extension is not so obvious as to render Judge Reinhardt deserving of being immediately tarred and feathered.

After all, the present legal regime, by relying on highly traditional (and arguably out-of-date) concepts for its boundaries, essentially gives a bonus to conservatives, by permitting schools to prohibit language that perhaps only conservatives today would find so highly offnsive, and many liberals wouldn't. Why should this conservative advantage be grandfathered in without liberals getting a compensatory break? I think I have an answer, but it does strike me as being a fair question to ask.
4.26.2006 1:38am
SLS 1L:
ReaderY - interesting question, but Harper wasn't based on Bethel. Reinhart would have had to find that "homosexuality is shameful" is "vulgar and offensive," but he didn't. He found that speech that interferes with students' education and psychological development unprotected and that speech that attacks the "core characteristics" of members of historically vulnerable minority groups could so interfere.
4.26.2006 1:48am
BobN (mail):
I have to wonder if Ben's wife of 15 years knows that he doesn't consider his sexuality to be "profound".
4.26.2006 1:50am
Ben Bateman (mail) (www):
Jon Rowe:
We might as well let the cat out of the bag. Let's reveal your normative assumption: Yes, "sexual orientation" is indeed profound. But only heterosexual, not homosexual orientation.

Jon, your ESP needs tuning. You don't know what I think. And not only do you not know, but you don't even know that you don't know.

Jon, try to imagine someone living a life in which sex does not play a major role. It has been done! Some people devote themselves to children, family, community, friends, country, religion, profession, etc. They seek a larger purpose to their lives, a sense of connectedness or transcendence. They are not mere pleasure-maximizing animals. They are fully human.

I think that describes most people---including most homosexuals. Very few people take sex as seriously as you and Judge Reinhardt seem to. Most people have more important things to think about.
Homosexuality is profound for the same reason why you find your relationship with your wife to be profound.

Again, your ESP needs tuning. You don't know why I think that my relationship with my wife is profound. Offhand, I'd say that its significance has very little to do with sex, and a great deal to do with procreation and understanding the opposite sex.

And note that Judge Reinhardt didn't even limit his statement to homosexuality. His phrase was "sexual orientation," which is much broader and more clearly sexual. Do you consider all sexual orientations to be profound? If so, which sexual orientations do you include in that?
4.26.2006 3:00am
mrsizer (www):
As a legal matter, I agree with the post (although that means very little since my legal expertise is nil).

As a practical matter, the whole issue is ludicrous. Homosexuality is so widely despised - especially by adolecents (sp?) - that a T-shirt is the absolute least of the problem.

When I was a high-schooler I would have welcomed the T-shirt instead of the everyday insults and isolation; as an adult, the issue is mostly moot.

Puberty sucks unless you belong to a happy stereotyped group (mostly jocks and cheerleaders these days, but it changes over time) and even then the pressure to conform is immense. Get over it. Survive high school. In adult life it doesn't matter.

While trying to be excellent enough at my job to keep from being replaced by someone in India with half my salary my sexual orientation is the least of my worries.

On the "profoundness" issue: I DESPISE the liberal position of "you have to be one to have an opinion" but, only someone NOT homosexual (and profoundly non-empathetic) could possible belive that it is not profound. Walk down the street holding another man's hand and kiss him in public then we'll talk.
4.26.2006 3:48am
Jon Rowe (mail) (www):

You don't know why I think that my relationship with my wife is profound. Offhand, I'd say that its significance has very little to do with sex, and a great deal to do with procreation and understanding the opposite sex.


Again your obtuseness is showing, as I predicted. If you sat down and talked with any homosexual couple who have been together in a long term relationship, you'd know that the significance of their, or, many of their, relationship(s) "has very little to do with sex."

"a great deal to do with procreation"

As you know, a great many heterosexual couples form meaningful long term relationships without procreating. Whatever it is that's profound and meaningful about the relationship of say Bob and Liddy Dole, we could say ditto of any long term homosexual relationship.

Now, of course, the only way to rebut what I've said is with your still unspoken normative assumption which I've identified: Yes, "sexual orientation" is indeed profound. But only heterosexual, not homosexual orientation.
4.26.2006 9:22am
Jon Rowe (mail) (www):
By the way, perhaps we need some to lay some "definitional" baselines, by better defining "sexual orientation." The word "sexual" doesn't mean sex acts, but rather gender. Sexual orientation thus is, or should mean, that gender to which one is attracted.
4.26.2006 9:26am
SLS 1L:
I'd add that heterosexuals often don't realize how important their heterosexuality is to them because it's so taken-for-granted that they don't need to think about it in those terms.

To see how important it is, just try imagining it negated: would you, or society, consider it a matter of any importance if you were gay rather than straight?
4.26.2006 12:23pm
Archon (mail):
Sexual orientation is a choice, not an innate characteristic. The left attempts to make it an innate characteristic so it can be lumped into categories such as skin color and gender. This way, an argument can be easily developed as to why homosexuality must be accepted, tolerated, and included in non-discrimination laws. If homosexuality were a choice these arguments not nearly as compelling.

Take well known liberal commentator Tammy Bruce for an example. She will readily tell anyone that her decision to be a lesbian was a choice and that she was not born witht his preference preprogrammed. She will also tell people that she doesn't expect government benefits or the "right" to marry. She just wants to be able to live her life as she chooses. She doesn't think homosexuality should be celebrated or forced upon children.
4.26.2006 12:43pm
Adam (mail):
4.26.2006 1:08pm
Daniel Chapman (mail):
Man, this thread is WAY off topic. It doesn't matter if sexual orientation is inate or a choice... it doesn't matter if it's a "core characteristic" or "just another" characteristic...

Each of these distinctions is irrelevant because the decision is fundamentally flawed when it distinguishes acceptable speech on which group is being "targetted."

I suppose I'm wasting my time. I should probably leave this thread to the wolves. No one cares about speech anymore.
4.26.2006 2:19pm
Archon (mail):
No I meant well known as in syndicated radio show host in over 30 markets at drive time in most. I meant liberal as in pro-choice, feminist, democrat supporter.

Just because someone doesn't toe the far left socialist line doesn't mean that you can attempt to discredit them by throwing "" around their political leaning.
4.26.2006 2:21pm
Archon (mail):
No I meant well known as in syndicated radio show host in over 30 markets at drive time in most. BTW, also a well published author with several books on best seller lists.

I meant liberal as in pro-choice, feminist, democrat supporter.

Just because someone doesn't toe the far left socialist line doesn't mean that you can attempt to discredit them by throwing "" around their political leaning.
4.26.2006 2:22pm
SLS 1L:
Archon - what has that got to do with anything? Reinhart's notion of a "core characteristic," which includes religion, obviously has nothing to do with chosen/not chosen.

On the merits, why does Tammy Bruce's assertion that she chose to be gay trump the claims of all the gays and lesbians who claim they made no such choice?
4.26.2006 2:24pm
Archon (mail):
If homosexuality is a choice - it no longer becomes a core characteristic. At least no more then my choice to join band, the basketball team, or hang out with the druggies.

Religion, especially in school age children, is completely different. Most child do not get to select their religion. It in in effect chosen by their parents, who then in turn expose their children to it. Most religious children are heavily involved in their religion. Thus, it is more like a "core characteristic".
4.26.2006 2:34pm
Elais:
Archon,

So one chick says she's lesbian by choice and that's good enough to claim that millions of people are gay by choice?

Ben Bateman

I don't get 'sexual thrills' by BEING anything, homosexual or heterosexual. That's just stupid. This is not a roller coaster ride, you know, that you can get on and off from.

I'm not heterosexual for the heck of it. I'm not a woman because engaging in female behavior is the most thrilling thing in the world.

Sexuality is a innate and fundamental aspect of who you are. I'm baffled that you don't understand that.
4.26.2006 7:39pm
Chimaxx (mail):
Archon:

High school is precisely the age when religionIS a choice. As you say, parents choose the religion their child is to be brought up in, but the high schoool years is when those adolescents try out and switch to other faiths. Among my half-dozen closest group of high school friends, between their freshman and senior years, one switched from Catholic to Jehovah's Witness, one went from Catholic to agnostic, one raised in Reform Jewish household joined Jews for Jesus, and I made the easy switch from Congregationalist to atheist. The other two retained the faiths they had been brought up in.

In my experience, during the high school years, religion is even MORE up for grabs than sexual orientation, what with all the subtle and not-so-subtle (prom, etc.) pressures to conform to the heterosexual norm.
4.26.2006 7:47pm
Jon Rowe (mail) (www):

If homosexuality is a choice - it no longer becomes a core characteristic. At least no more then my choice to join band, the basketball team, or hang out with the druggies.



No one who has seriously studied sexual orientation thinks its a choice. And no one who possesses at least an elementary sense of logic would assert that one's "religion" is less of a choice than one's "sexual orientation."

Whatever element of choice there is in sexual orientation, one's religion, like one's political party, is entirely a matter of choice.
4.26.2006 9:46pm
Hans Gruber (www):
"Whatever element of choice there is in sexual orientation, one's religion, like one's political party, is entirely a matter of choice."

Oh really?

A lot of times when somebody is arguing that being gay isn't a choice I hear something like: "Well, how about you choose to be gay!" Couldn't somebody say the same thing about religion? "Oh, you're Jewish, well go convert to Christianity! What, you don't want to? See religion isn't a choice!" I think both of these arguments conflate "choice" with "preference."

One prefers a religion and chooses to adopt those teachings and self-identify as an adherent. And one has a sexual preference and chooses to engage in a certain kind of sex and self-identify as straight or gay or bi.

The preference isn't chosen in either case, it just is. One's preference may change over time. They may lose faith, or find another, and their preference changes. But can one "choose" one's personality or preference?

So, sure, gays don't "choose" their preference, but neither does the kid who loves vanilla ice cream. So what? Who cares? What's the difference?

This debate over whether or not sexuality is innate or ummutable or unchosen is a distraction. Who cares? That's not relevant. It really isn't. What if there was a lazy gene or a sociopath gene or a rape gene or a pedophile gene? Would those behaviors be OK? Nope, still immoral and still condemnable, I assume.

And what's the flipside of this? Gays deserve respect and recognition because they didn't choose their sexuality, right? Well, what if an individual, like Tammy Bruce, says they did choose! What protects her then?

Take it a step further: What if we discover a gay gene. But what if every gay doesn't have it (which is true because a significant percent of identical twins do not share sexual preference)? How are we supposed to feel about those gays? Are they OK with you or not? What if there is a male gay gene but not a female? Does that mean gay males are OK but lesbians are not?

I just don't understand why people think this seals the argument. Am I missing something?
4.27.2006 1:26am
Archon (mail):
Elais:

Why do you only equate sexuality with where you insert your penis?

The bottom line, is homosexuals make a choice at some point in their life to like the same sex instead of the opposite sex. The "serious people" that study homosexuality are generally frauds go about the scientific process in reverse. First, come up with something they would like to be fact, find evidence that supports that fact, and disregard all the other evidence.

And Chimaxx, I don't know where you grew up (my guess would be somewhere in the Godless Northeast), but religion in families doesn't become "optional" in most of the United States around the age of 16. Almost everyone I knew was still compelled by their parents to attend church and there was certainly no "exploring" of other religions allowed.
4.27.2006 1:57pm
Chimaxx (mail):
Archon:
First of all, not that it should matter, but I gre up in the conservative and very Republican suburbs of Chicago--in the heart of the heart of DuPage County.

Second, if adolescents have to be compelled by parents to remain in their faith, then it can hardly be a "core characteristic."
4.27.2006 4:24pm
markm (mail):
"The bottom line, is homosexuals make a choice at some point in their life to like the same sex instead of the opposite sex." The historical record clearly shows that a small percentage of men have been homosexual even when homosexuals were ostracized, beaten, imprisoned, and executed.
4.27.2006 5:48pm
Elais:
Archon,

I don't have a penis, I have a vagina. I didn't make a 'choice' when I hit puberty. I looked around and found I'm attracted to guys. I didn't say to myself 'gee, I wonder who I should shack up with, men or women?" Guys did it for me, women didn't.

When did YOU decide to be heterosexual? When did YOU decide that you thought that the girl in the front row was cute? Imagine sticking your penis in a guy or a gal, which one turns you on? It's not a choice, is it?

I still continue to be baffled by your belief that sexuality is a 'choice'. Is race a choice? Is being short a choice?
4.28.2006 1:38am