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More on Anti-Homosexuality Speech in K-12 Schools:

I'd blogged extensively on the Ninth Circuit's Harper v. Poway decision, which held that the First Amendment didn't protect a high school student's right to wear a T-shirt saying "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality is Shameful" -- even when there was no showing that the T-shirt posed a reasonable risk of disruption in the Tinker v. Des Moines Indep. School Dist. sense (for instance, of fighting and the like).

Now a similar case (Zamecnik v. Indian Priairie School Dist. #204 Bd. of Ed.) is brewing in the Seventh Circuit; at this point, it just led to a district court decision, but that's now being appealed. The district court decision, handed down Dec. 21, holds:

  1. A school district may bar a student from wearing a "Be Happy, Not Gay" T-shirt (as a reaction to a pro-gay-rights event the day before), so long as the T-shirt would undermine the school's "policy of promoting tolerance and prohibiting derogatory comments based on protected categories." As in Harper, there's no need for the school to show that the T-shirt poses a reasonable risk of disruption under Tinker.

  2. At the same time, the student has a "constitutional right to display 'Be Happy, Be Straight' on her t-shirt" at school, because "[t]here is no indication that such a message is inconsistent with the school's educational mission as was the 'Not Gay' message." "Since, on the previous day students were permitted to display messages supporting being homosexual, the next day's suppression of a message supporting being heterosexual should be understood as viewpoint discrimination under the facts assumed to be true for purposes of summary judgment."

It will be interesting to see what the Seventh Circuit has to say about item 1. It's not clear to me whether item 2 is going to be before the Seventh Circuit, since I haven't seen any evidence that the school district is appealing item 2 (nor am I sure that it's appealable, given the procedural posture of the case, though I'm happy to be enlightened further on this).

gattsuru (mail) (www):
So, kids have first amendment rights, but only until such point as it goes against a school's policy or educational mission?

It's great that they're protected from incredibly capricious rulings by individual teachers or administrators, but it's hard to argue that 'freedom of speech' could hold less bite than simply breaking arbitrary rules. This may follow precedent, but it's a complete violation of the spirit of the first amendment for government officials to be able to effectively muzzle individuals that disagree with them peacefully.
1.7.2008 7:46pm
CrazyTrain (mail):
Professor: On the Tinker case, I agree that the 9th Circuit got it wrong. However, something in your post raised an interesting issue. You say that the Court found that the t-shirt was not protected "even when there was no showing that the T-shirt posed a reasonable risk of disruption."

Assume that a person wore a t-shirt that said, "Be Ashamed, Our School Embraced What God Has Condemned" and "Racial Integration is Shameful." Now, this shirt would likely pose a "reasonable risk of disruption" and I think that the banning thereof would therefore be more likely to be consistent with the first amendment.

The fact is that the constitutional analysis is then influenced by the fact that homosexual teens are less likely to be out and thus less likely to cause serious disruption when seeing the shirt. This may make no difference in the first amendment analysis, but isn't it unfortunate that the doctrines here essentially encourage a group to cause disruption and get more offended? I am not sure I am saying this right, and maybe this was Reinhardt's point in Tinker (it was him, right?), but the fact that homosexuals at that age are so at the margins of society is one of the reasons that there is no disruption and thus no first amendment problem. Again, I agree that Tinker was wrongly decided but this aspect of first amendment doctrine in this area troubles me for several reasons.
1.7.2008 8:29pm
CrazyTrain (mail):
BTW, my references to "Tinker" should be to "Harper." Sorry.
1.7.2008 8:33pm
Sean M:
I hope the panel on this case is Easterbook, Posner, and Evans. Just saying.
1.7.2008 8:46pm
A. Zarkov (mail):
" … so long as the T-shirt would undermine the school's "policy of promoting tolerance and prohibiting derogatory comments based on protected categories."

So membership in a "protected category" gets you special treatment under the First Amendment? So we now live in Animal Farm where some are more equal then others.
1.7.2008 8:46pm
DecentDissenter:
Doesn't Morse v. Fredrick give the school district latitude to stop these T-shirts? OR will the court say that pro-marijuana speech is a real problem, but anti-gay speech is hunky dory?
1.7.2008 8:52pm
PersonFromPorlock:
I wonder if it might not be better in the long run to deny minor students all rights on the grounds of incompetence, rather than 'customize' rights to make them workable in a school environment. Would it be better if there were no rights for teens instead of a corrupted version of them that may lead them, as adults, to accept less than their due?
1.7.2008 10:13pm
Oren:
DD, I assume the Morse v. Fredrick will hold up here. Unless our favorite Justice either has an about-face or distinguishes based on the fact that he thinks banning marijuana is more important than promoting an environment where all our children can learn.

I really don't see any wiggle room here but I've been wrong lots before.
1.7.2008 10:28pm
Oren:
PfP, I don't think there is any psychological research that indicates that what you've said is correct. One could just as well come to the conclusion that fewer rights in high school would inure students to authoritarianism.
1.7.2008 10:32pm
Houston Lawyer:
I believe Clarence Thomas's position is the same as PfPs. Granting students rights has worked out so well hasn't it.
1.7.2008 10:48pm
arbitraryaardvark (mail) (www):
It is unfortunate, maybe, that plaintiffs did not raise state claims.
SECTION 1. INHERENT AND INALIENABLE RIGHTS
All men are by nature free and independent and have
certain inherent and inalienable rights among which are life, liberty and the pursuit of happiness. To secure these rights and the protection of property, governments are instituted among men, deriving their just powers from the consent of the governed.
SECTION 4. FREEDOM OF SPEECH
All persons may speak, write and publish freely, being
responsible for the abuse of that liberty.
(Source: Illinois Constitution.)


I disagree with Plaintiff's message, so I support their right to say it - otherwise there is a risk that their message becomes stronger because of the suppression.
1.7.2008 10:56pm
Cornellian (mail):
Would it be better if there were no rights for teens instead of a corrupted version of them that may lead them, as adults, to accept less than their due?

Better as a policy point of view or better as an interpretation of constitutional text that doesn't make that distinction?
1.7.2008 11:48pm
ReaderY:
In all fairness, it should be noted that in the 1980s the federal courts split, some upholding and some striking down, a series of state laws permitting school boards to fire teachers for making statements advocating homosexuality, particularly in states with sodomy laws.

In National Gay Task Force v. Board of Education of Oklahoma City, The U.S. Supreme Court split 4-4 on the subject.

In addition to involving a particularly specific state statute 6-103.15, which provided for firing teachers for "advocating, soliciting, imposing, encouraging or promoting public or private homosexual activity in a manner that creates a substantial risk that such conduct will come to the attention of school children or school employees," the case was notable for the fieriness of its dissent:


Sodomy is malum in se, i.e., immoral and corruptible in its nature without regard to the fact of its being noticed or punished by the law of the state. It is not malum prohibitum, i.e., wrong only because it is forbidden by law and not involving moral turpitude....Tinker v. Des Moines Independent Community School District, 393 U.S. 503 (1969) is a poor vehicle for the majority to rely upon. There, the Supreme Court simply held that school children opposed to the Vietnam conflict were protected under the First Amendment in their practice of wearing black arm bands in protest thereto, unless that conduct could be shown to substantially interfere or disrupt normal school activities. Tinker involved a symbolic demonstration involving a matter of national political significance. Political expression and association is at the very heart of the First Amendment. The advocacy of a practice as universally condemned as the crime of sodomy hardly qualifies as such. There is no need to establish that such advocacy will interfere, substantially or otherwise, in normal school activities. It is sufficient that such advocacy is advanced in a manner that creates a substantial risk that such conduct will encourage school children to commit the abominable crime against nature. This finds solid support in Tinker, supra, where the Court said "First Amendment rights must always be applied 'in light of the special characteristics of the . . . environment ' in the particular case."


If conservatives were permitted to do this in the 1980s, why shouldn't liberals be permitted today? The consititution is supposed to be even-handed. It is not there to ensure the judge's friends, or the positions that the judge politically supports, are the ones that win.
1.7.2008 11:57pm
Brian G (mail) (www):
I'll say it again" What happens when a kid wears a "Bush is a motherf***ing fag" t-shirt? Will the court rule that everything from "ing" on must be covered up but the rest is protected by the First Amendment?
1.8.2008 12:40am
Milhouse (www):
I'm confuzzled. Is Tinker still good law? According to what seem to be the current rules, why couldn't De Moines have argued that the Tinkers' and Eckhardt's armbands undermined the school's policy and educational mission of inculcating patriotism among its students? Surely that's at least as legitimate a policy as is one of teaching students that there's nothing wrong with homosexuality, or that there is something wrong with drugs.
1.8.2008 12:45am
Milhouse (www):
Sorry, that should of course have been "Dez Moinz".
1.8.2008 12:46am
Eugene Volokh (www):
Brian G: See Fraser v. Bethel School District, which is generally read as holding that a school may ban vulgar language.

ReaderY: I'm puzzled -- in the 1980s, a lower court dissent reasoned that teachers could be fired for advocacy of homosexuality (not in-class advocacy, but any sort of advocacy). The Supreme Court split 4-4 on the subject, thus rendering no precedential decision but keeping on the books a lower court decision that struck down a law providing for such firing. How does that support upholding restrictions on student anti-homosexuality speech today?
1.8.2008 2:02am
A.C.:
Both of the shirts mentioned here have offensive messages, but the first one ("Be Happy, Not Gay") is actually clever. The second is just lame. Any rule that bans the first and permits the second is a problem.

My solution would be the one adopted in my school -- have a dress code (or even a uniform) that, among other things, bans shirts with writing on them. I'll admit that some of my shirts were among the targets of this rule, but I accepted it because it kept all the other yahoos from wearing THEIR nasty and offensive shirts.

Trying to work out content-based rules is a losing proposition here, in my opinion. The expression "splitting hairs" comes to mind.
1.8.2008 5:23am
Borat (mail):

Both of the shirts mentioned here have offensive messages, but the first one ("Be Happy, Not Gay") is actually clever. The second is just lame. Any rule that bans the first and permits the second is a problem.


Agreed. I imagine many of the wearers of the first shirt would be gays/lesbians mocking it. Thus the school district's rule is insensitive to irony, which is harmful to the development of self-expression (part of a school's educational mission) and prevents Judith Butler-style subversions of anti-gay norms that lead to greater tolerance. Not every bumper sticker or tee-shirt is meant to be taken literally.
1.8.2008 5:58am
David Schwartz (mail):
My solution would be the one adopted in my school -- have a dress code (or even a uniform) that, among other things, bans shirts with writing on them. I'll admit that some of my shirts were among the targets of this rule, but I accepted it because it kept all the other yahoos from wearing THEIR nasty and offensive shirts.


Why deprive children of more liberty than necessary?

If the FCC can't figure out the right rules for limiting profanity on radio, should they just close all the radio stations?
1.8.2008 8:00am
A.C.:
The school dress code isn't just about political speech. It can get at gang issues, an overly sexualized environment, the fashion "arms race," or just about any other dress-related issue that leads to student fights.

I wouldn't extend the ban to articles in the school paper, where students would have to develop actual arguments that could then be debated and challenged on the merits. I mean, if you want to have a political or social argument, HAVE one.

T-shirts are more about displaying team colors or various badges of "tribal" membership, and that sort of thing can certainly be disruptive in class. The trouble comes when you start trying to define specific protected groups and the exact shades of meaning in various remarks. It really is offensive to set up a system where Group A is free to insult Group B, but Group B isn't free to respond in kind. So why not just clean up the mess ahead of time, at the same time you're banning tube tops and unsafe shoes and gang colors? School hours aren't 'round the clock, after all.

(Yeah, I know. One person decides to be a jerk and everybody loses a bit of liberty. It always happens that way, but I don't know of any other solution when people are stuck in close quarters and there's no social agreement on what "being a jerk" entails. Think of having to share an office with someone whose politics and religion repel you. The only way to avoid mayhem -- and seriously reduced productivity -- is for everyone to shut up.)
1.8.2008 9:45am
Happyshooter:
Since Gayness is the state faith, do the federal courts sit as civil courts or canon courts?

Federal District Judge "I have reviewed the holy writ of gayness, and in a state school you must not resist the faith."

Lawyer "Your worshipful judgness, but the child has freedom of religion and likes straightness."

Judge "I will ponder what you have said, but there is but one law the mother gaia has given us, and that is that gay is the way. No one may criticize gayness nor any decision or action a gay makes."
1.8.2008 10:10am
DiverDan (mail):

Assume that a person wore a t-shirt that said, "Be Ashamed, Our School Embraced What God Has Condemned" and "Racial Integration is Shameful." Now, this shirt would likely pose a "reasonable risk of disruption" and I think that the banning thereof would therefore be more likely to be consistent with the first amendment.


I have to admit that I never liked or agreed with the "reasonable risk of disruption" test, as it seems to place control over one's First Amendment rights in the hands of those who would be offended by the message. Why should any group that might be more likely to react violently to an offensive message (or at least is perceived as more likely to react violently) be granted greater control over someone else's speach? Yes, the message "Racial Integration is Shameful" is both stupid and offensive, but why can't the law insist that people who disagree with such a message control their behavior - a proportional response would be to wear a T-shirt with the message "Bigots are Idiots" or "Racists are as Worthless as Their Opinions". Certainly, the Nazi's marching through Skokie, Illinois presented a "reasonable risk of disruption" -- so why was that protected speech under the First Amendment? If the First Amendment only protects non-offensive expression, it's a mighty niggardly liberty.
1.8.2008 10:28am
DLM (mail):

Why deprive children of more liberty than necessary?

If the FCC can't figure out the right rules for limiting profanity on radio, should they just close all the radio stations?



Is it really better to occupy lawyers, schools, parents, teachers and the federal courts with these ridiculous cases about what T shirts kids may wear between the hours of 8 and 3?
1.8.2008 10:46am
Brian G (mail) (www):
Professor,

Thanks for the comment. I actually entered a moot court competition in law school (Chicago Bar Association) where Tinker and its progeny made up the briefs and arguments. I loved it.

What I was referring to was the federal cases in the last few years where a student was restricted from wearing an anti-homosecual shirt (9th Circuit) but a student wearing an anti-Bush t-shirt with vulgarities was protected (6th Circuit, I am 99% sure). If I wasn;t stuck on this MSJ, I would do the research right now.
1.8.2008 11:22am
Ralph Phelan (mail):
I have to admit that I never liked or agreed with the "reasonable risk of disruption" test, as it seems to place control over one's First Amendment rights in the hands of those who would be offended by the message.

Yeah, it's a "heckler's veto," and it creates an incentive towards violence and disruption.
1.8.2008 12:04pm
Clayton E. Cramer (mail) (www):
David Schwartz writes:

Why deprive children of more liberty than necessary?
The serious answer is, "Because they aren't in school to exercise their liberty, but to get educated. Anything that distracts minors from education is unnecessary."

The snarky (but accurate) answer is, "Because homosexuals can't stand criticism, and therefore insist that schools have to encourage homosexuality, while prohibiting any criticism."
1.8.2008 1:05pm
Clayton E. Cramer (mail) (www):
DLM writes:

Is it really better to occupy lawyers, schools, parents, teachers and the federal courts with these ridiculous cases about what T shirts kids may wear between the hours of 8 and 3?
If anyone had asked that question when Tinker was working its way up through the courts, it would have been a sign of incipient fascism to most of the crowd that hangs out here.

If Tinker had been about students wearing T-shirts opposing the removal of prayer from public schools--instead of black armbands to oppose the Vietnam War--does anyone seriously think that the Supreme Court would have taken the side of the students?

Today we are in a very similar situation--a minority of students (and their parents) who cares passionately about an issue, and wants freedom of expression. The only real difference is that in Tinker, the school wasn't actively promoting the Vietnam War, to which the black armbands were a response. You could make a legitimate argument that as long as the district prohibited all political commentary about the Vietnam War, that they were preventing everyone from turning the school into a political forum.

In Harper, the school district was actively promoting homosexuality, while prohibiting disapproval. They weren't even suppressing all points of view equally. How liberal: freedom of speech for one side, but not the other.
1.8.2008 1:17pm
Randy R. (mail):
DLM: "Is it really better to occupy lawyers, schools, parents, teachers and the federal courts with these ridiculous cases about what T shirts kids may wear between the hours of 8 and 3?'

Maybe these things should be settled the old-fashioned way, the way all schoolyard problems were solved — with fisticuffs.

Cramer: " "Because homosexuals can't stand criticism, and therefore insist that schools have to encourage homosexuality, while prohibiting any criticism."

Not true. I'm more than willing to have schools criticize homosexuality, so long as they are just as wiling to criticize heterosexuality. That WOULD be the fair solution, no?
1.8.2008 1:19pm
David M (www):
The Thunder Run has linked to this post in the - Web Reconnaissance for 01/08/2008 A short recon of what's out there that might draw your attention, updated throughout the day...so check back often.
1.8.2008 1:20pm
DLM (mail):
Maybe these things should be settled the old-fashioned way, the way all schoolyard problems were solved — with fisticuffs.
1.8.2008 2:15pm
Seamus (mail):

If Tinker had been about students wearing T-shirts opposing the removal of prayer from public schools--instead of black armbands to oppose the Vietnam War--does anyone seriously think that the Supreme Court would have taken the side of the students?



Yes.

But it's a bit of a silly question, because in the late 60s, when the Tinker case was working its way through the courts, no one thought t-shirts with slogan on them were appropriate school wear. A better question would have been about buttons opposing the removal of prayer from schools. And yes, I believe the Supreme Court would have supported the right of students to wear those buttons.

BTW, a couple of years after Tinker, the question came up whether the University of Virginia could forbid people attending football games to wave any flags other than those of the United States or the Commonwealth, or banners of U.Va. or the opposing team. The real target of the ban, as everyone knew, was the Confederate battle flag. Attorney General Andrew Miller was asked for an opinion on the legality of the ban and he rightly held that it was a content-based restriction on speech that couldn't be sustained under Tinker. As one who, in high school, had relied on Tinker to protect my own anti-war agitation, I was quite satisfied to see it protecting the free-speech rights of neo-Confederates as well.
1.8.2008 2:27pm
Oren:
The serious answer is, "Because they aren't in school to exercise their liberty, but to get educated. Anything that distracts minors from education is unnecessary."
Learning how to assert and exercise one's rights is an essential element of education in a free society.
1.8.2008 4:19pm
Randy R. (mail):
Oren: "Learning how to assert and exercise one's rights is an essential element of education in a free society."

Indeed, education means in part to question authority. Only by questioning authority, can true advances be made. Even the most rightest conservatives believe this, because they invoke it whenever the subject of evolution comes up.

anything less is mere indoctrination.
1.8.2008 4:57pm
Fury:
I'd like to provide a viewpoint of a Board of Education Member in a public school.

Uniforms.

Yep, that's right. School uniforms. I shudder to think how much the school district spent on this entire matter.

I would not want an overly restrictive school policy or an overly permissive school policy. But somewhere along the line, an overzealous parent, school board, or administrator has worked to distort the primary reason students go to school. To learn and to prepare students for entry into the workforce, military or college.
1.8.2008 6:31pm
Michael Mahoney (mail):
Defense: What is a derogatory comment? Does this T-shirt rise to that level?
Is "promoting tolerance" a violation by the government of First Amendment right of association by coercion?
1.8.2008 7:35pm
Elais:
Clayton,

Perhaps schools should stop promoting heterosexuality as well? Just to treat everyone equally?
1.8.2008 10:04pm
Duncan Frissell (mail):
education means in part to question authority

'Education' is derived from a Greek word meaning to come out of oneself. To encounter the larger world. Primary and Secondary education should not involve much challange to authority. Its purpose at those ages is to learn enough about the world so that one can later think about it for oneself.

Discipline first (that's always harder) then creativity once one has tools with which to be creative.
1.8.2008 10:26pm
Randy R. (mail):
Duncan: Good point. That's why I was careful to say education is 'in part' the process of questioning authority. Certainly, in primary school kids need to learn discipline first.

And, to clarify, what I mean by questioning authority isn't mindless "I disagree with that," but rather, to become engaged enough in a topic that you want to learn more, and ask questions about it. And sometimes, that leads to rather critical questions, hopefully. Without

As a part time educator, one of the most difficult things I encounter is to try to get students to ask questions. As a teacher, I should be challenged. I learn as much from my students as they do from me! I would be happy if students questioned whether democracy is truly the best form of gov't, for instance. Eventually, they will either come around to agreeing that it is, or at least they will realize that it has flaws, as every form of gov't does.
1.9.2008 10:38am
Oren:
But somewhere along the line, an overzealous parent, school board, or administrator has worked to distort the primary reason students go to school. To learn and to prepare students for entry into the workforce, military or college.
There is quite a bit to life than merely a career. If you don't educate students to think for themselves and stand up to authority you are ill-preparing them for being part of a diverse body-politic.
1.9.2008 3:56pm
Ghostmonkey57:
Doesn't Morse v. Fredrick give the school district latitude to stop these T-shirts? OR will the court say that pro-marijuana speech is a real problem, but anti-gay speech is hunky dory?

Justice Alito, with whom Justice Kennedy joins, concurring.

I join the opinion of the Court on the understanding that (a) it goes no further than to hold that a public school may restrict speech that a reasonable observer would interpret as advocating illegal drug use and (b) it provides no support for any restriction of speech that can plausibly be interpreted as commenting on any political or social issue, including speech on issues such as "the wisdom of the war on drugs or of legalizing marijuana for medicinal use." See post, at 13 (Stevens, J., dissenting)...

The opinion of the Court does not endorse the broad argument advanced by petitioners and the United States that the First Amendment permits public school officials to censor any student speech that interferes with a school's "educational mission." See Brief for Petitioners 21; Brief for United States as Amicus Curiae 6. This argument can easily be manipulated in dangerous ways, and I would reject it before such abuse occurs. The "educational mission" of the public schools is defined by the elected and appointed public officials with authority over the schools and by the school administrators and faculty. As a result, some public schools have defined their educational missions as including the inculcation of whatever political and social views are held by the members of these groups.

During the Tinker era, a public school could have defined its educational mission to include solidarity with our soldiers and their families and thus could have attempted to outlaw the wearing of black armbands on the ground that they undermined this mission. Alternatively, a school could have defined its educational mission to include the promotion of world peace and could have sought to ban the wearing of buttons expressing support for the troops on the ground that the buttons signified approval of war. The "educational mission" argument would give public school authorities a license to suppress speech on political and social issues based on disagreement with the viewpoint expressed. The argument, therefore, strikes at the very heart of the First Amendment ...

In most settings, the First Amendment strongly limits the government's ability to suppress speech on the ground that it presents a threat of violence. See Brandenburg v. Ohio, 395 U. S. 444 (1969) (per curiam). But due to the special features of the school environment, school officials must have greater authority to intervene before speech leads to violence. And, in most cases, Tinker's "substantial disruption" standard permits school officials to step in before actual violence erupts. See 393 U. S., at 508--509.

Speech advocating illegal drug use poses a threat to student safety that is just as serious, if not always as immediately obvious. As we have recognized in the past and as the opinion of the Court today details, illegal drug use presents a grave and in many ways unique threat to the physical safety of students. I therefore conclude that the public schools may ban speech advocating illegal drug use. But I regard such regulation as standing at the far reaches of what the First Amendment permits. I join the opinion of the Court with the understanding that the opinion does not endorse any further extension.
1.9.2008 8:25pm