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High School Student Speech and "Be Happy, Not Gay" T-Shirt:

The Seventh Circuit, in Nuxoll v. Indian Prairie School Dist. #204, just held that a student did have the right to wear such a T-shirt. (The student was wearing it in opposition to a pro-gay-rights National Day of Silence.)

The panel majority (Judge Posner joined by Judge Kanne) also opined, though, that under Tinker and Morse v. Frederick, the school would have broad rights to restrict shirts that were sufficiently derogatory of various groups, "if there is reason to think that a particular type of student speech will lead to a decline in students' test scores, an upsurge in truancy, or other symptoms of a sick school — symptoms therefore of substantial disruption." And the panel especially singled out speech that's derogatory to "highly sensitive personal-identity characteristics" as speech that seems especially likely to cause such disruption. The examples the majority gave as (apparently) restrictable were "blacks have lower IQs than whites," "a woman's place is in the home," "homosexuals are going to Hell," and "homophobes are closeted homosexuals"; it's not completely clear where the panel was committing itself to a conclusion that these particular statements would be restrictable, but that seems the likeliest interpretation.

As to "Be Happy, Not Gay," though, the majority concluded:

"Be Happy, Not Gay" is only tepidly negative; "derogatory" or "demeaning" seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student's free speech.... The school has failed to justify the ban of that [slogan], though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light.

Judge Rovner concurred in the judgment, but argued for a much more speech-protective reading of Tinker and Morse than the majority adopted.

My tentative thoughts on the subject:

1. Though the decision is something of a victory for the student speaker, the panel majority opinion would authorize a great deal of speech restrictions. It's a narrow reading of Tinker rights, and a broad reading of Morse's limit on those rights.

2. I'm not troubled by this decision the way I was about the Ninth Circuit's decision on a similar question in Harper v. Poway Unified School Dist.. The Ninth Circuit panel created an expressly viewpoint-based exception to student free speech rights, based on a supposed "right" of "minority" students to be free from "derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation." The Seventh Circuit expressly rejected this, holding that "people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life." Instead, the Seventh Circuit focused on more traditionally recognized, and facially viewpoint-neutral, concerns about the disruption of the educational process.

3. I also think the concern about disruption of the educational process is quite serious. The public school authorities' job is to educate students, and it's harder to educate students who are distracted, upset, unhappy to be at school, even when they're not actually fighting or dropping out.

4. At the same time, the distinctions the majority opinion draws, and the disagreement between it and the concurrence about how to interpret Tinker and Morse, suggest that the existing doctrine — focused though it is on protecting free speech so long as it doesn't tend to be disruptive — doesn't do a great job of either protecting free speech or preventing disruption. Though the majority's rhetoric seems to nod in the direction of viewpoint neutrality, and though the majority's test is itself facially viewpoint-neutral (in a way the Harper majority's wasn't), the majority would tolerate a wide range of broad, vague, and viewpoint-based restrictions on student speech. At the same time, its approach calls for a case-by-case and hard to predict evaluation of just when speech is likely to be disruptive, an approach that is likely to constrain schools from barring some speech that genuinely is disruptive.

Maybe I'm asking for too much clarity or predictability in what is necessarily going to be a mushy endeavor. But I do think this area of free speech law is especially unclear and unpredictable.

5. Finally, I can just see Justice Thomas, his spiritual sometimes-brother Justice Hugo Black, and, of all people, Stanley Fish, saying "I told you so." Here the Seventh and the Ninth Circuits take very different views of very similar questions; the judges on the Seventh Circuit panel, both purporting to apply the Tinker and Morse tests — or perhaps non-tests? — taking very different view of the same question; and the judges in the majority tentatively allowing some anti-gay speech but not other anti-gay speech without much of a clear explanation of just where the line between the "tepidly negative" and, I suppose, "hotly negative" is drawn. Maybe, they'd say, the best bet is to leave speech in government-run K-12 schools almost entirely to school authorities, rather than muddling through this way. I'm not sure Thomas, Black, and Fish are right on this, but I'm not sure they're wrong, either.

Dilan Esper (mail) (www):
In non-school contexts, mere "disruption" isn't sufficient to permit restriction of speech. For instance, there are "hecker's veto" cases like Forsyth County v. Nationalist Movement that hold that the fact that speech will cause a security risk or will be protested or will upset people isn't enough to permit restriction, because otherwise the First Amendment would offer little protection to unpopular views.

In school, the "disruption" exception is understandable. Students are there to learn, and disruption is a serious issue. If some students in a history class suddenly jumped up and started shouting "US out of Iraq" over and over again while the teacher was trying to give a lecture, it's pretty clear this would make it impossible to learn anything in school, for instance.

But "disruption" still introduces an element that really fouls up freedom of speech cases. Because certain viewpoints are clearly more disruptive than others. Anti-gay bigotry is a nice example of this. Hatred of gays is clearly constitutionally protected. And yet, expressed hatred of gays really can disrupt the ability of gay students to learn. So you can't really enforce a disruption standard strictly without seriously doing damage to First Amendment values.

You could solve this by going to Thomas' position (no First Amendment rights in school), but the problem with that is that then schools really could shut down valuable student speech. For instance, while you don't want students shouting US out of Iraq in class, it would seem quite harmful for a pro-war principal to suspend students for opposing the Iraq War by standing outside the school exit after classes and handing out leaflets or speaking in opposition to the war.

So, you have an impossible clash of values here. Clearly we don't want disruption; clearly we also don't want viewpoint discrimination. But if the standard is going to be disruption, I see no way around some level of viewpoint discrimination. It simply happens to be the case that saying, for instance, "blacks are inferior" in an integrated school is inherently more disruptive than saying "we are all created equal".
4.24.2008 8:05pm
CrazyTrain (mail):
More evidence for Prof. Volokh's observation that traditional right/left divides don't work well in the Free Speech area. Rovner is generally considered a more liberal judge of the 7th Circuit, and she goes for a rule that would allow anti-gay speech generally, whereas the two more conservative judges take a more open approach to restricting such speech.

Also notable is Rovner's reference to the concurring judges as her "brothers" -- I think this is the first time I've seen a female judge use that term to refer to colleagues (which was common in pre-O'Connor Supreme Court opinions and other earlier opinions of state appellate courts).
4.24.2008 8:24pm
tarheel:
Speech that might lead to a decline in test scores can be limited?

I know Posner likes his numerical analyses, but that is just silly. Have we so fallen in love with student testing that it has reached the level of a constitutional standard to measure the validity of a speech limitation? Do students in poor schools have fewer speech rights than those in successful schools?
4.24.2008 8:26pm
Waldensian (mail):

Maybe, they'd say, the best bet is to leave speech in government-run K-12 schools almost entirely to school authorities, rather than muddling through this way

Muddling through, even though the process is pretty ugly, at least preserves some speech rights of some students. I fear that letting school bureaucrats restrict student speech as they please is the worst of all possible worlds, and would almost guarantee viewpoint discrimination.
4.24.2008 8:54pm
locomotivebreath1901 (mail) (www):
I think your third point sufficiently addressed the school issue of 'a pro-gay-rights National Day of Silence'.

Though not specifically mentioned, this was an 'official' commemoration at the school? I hope not. Tolerant &open minded adult society is one thing, but, for most people, homosexual activity is something that elicits a gag reflex, and is still viewed as perverse &aberrant behavior. It is not something that should be taught to children, or given official sanction at the tax payer funded govt. schools anymore than religious expression.

Yet an 'opposition' T-shirt was the point of law brought before the court? My, my. How far we have fallen as a society.

The opinion was correct (albeit a waste of tax payer $$):
"But it is highly speculative that allowing the plaintiff to wear a T-shirt that says "Be Happy, Not Gay" would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere."
4.24.2008 9:06pm
Jay:
CrazyTrain--Justice Souter, when asking questions at oral argument, sometimes refers to the other counsel as "your brother;" e.g., "your brother argues..." I was a little surprised by Judge Rovner's usage as well, though.
4.24.2008 9:09pm
KWC2000 (mail):
I understand EV's concern with how each of the two circuit's decisions are framed and this analysis strikes me as quite right. But the problem is, in practice, the school will just say that certain viewpoints are more disruptive and will prohibit them on this basis.

There is something hard to swallow about Posner and posse telling the school district what is and is not disruptive in a school. Where is the deference to school administrators that is needed here? No one is telling this guy that he can't wear his anti-gay shirt, just not at school wear it is undoubtedly quite disruptive. I woudl think that it is quite a deal more disruptive than Tinker's armbands -- here, the shirts are not just provocative against a given viewpoint (pro-war), it is provocative against a class of students (as well as some students' families and friends). It is one thing to say "I hate x concept" than to say "I hate x group of people."

The judges' opinion that the shirts were not derogatory boggles my mind. What else was the point but to BE derogatory? Tepidly negative? What if the shirts said "Don't be a Jew" or "Being a Jew is a bad thing." The implicit message is that it is not a good thing to be gay; I don't think we'd allow a message that it is not a good thing to be a Jew.
4.24.2008 9:19pm
Freddy Hill:
So the way to restrict the speech on this t-shirt is to cause enough disruption next time somebody dares wearing one that any reasonable school administrator might deem it (and others with similarly mild messages) "potentially disruptive" based on proven experience?

Isn't this greasing the slippery slope?
4.24.2008 9:19pm
Humble Law Student (mail):
Is the disagreement between the Circuits sufficient for a SCOTUS challenge sometime in the future?
4.24.2008 9:31pm
Eli Rabett (www):
You can bet that the kid will be pushing this further and further. It's the nature of the beast.
4.24.2008 9:38pm
Crackmonkeyjr (www):
Generally, I support free speech in school so long as it doesn't interfere with school activities. However, I think that it is worth noting that it isn't that out of line for schools to prevent bullying, much of which takes the form of speech.
4.24.2008 9:41pm
LarryA (mail) (www):
The student was wearing it in opposition to a pro-gay-rights National Day of Silence.
The article doesn't say (and the link to the case doesn't work) whether the pro-gay Day of Silence was observed in the school. If it was then prohibiting peaceful anti-gay protest is at best hypocrisy. Sauce for the goose is sauce for the gander.
The Ninth Circuit panel created an expressly viewpoint-based exception to student free speech rights, based on a supposed "right" of "minority" students to be free from "derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation."
Case in point. "Minority" students should be free from derogatory remarks, but majorities have to suck it up. In my own experience this is particularly silly in a school where such ruling protects the 70% Hispanic "minority" from the 30% Caucasian "majority." My Hispanic buddy agreed, but what did we know? We were both nerds, and so got equal-opportunity picked on.
4.24.2008 9:42pm
genob:
The context of this around the "Day of Silence" and debate over what is "disruptive" in a school is interesting.

Newspaper reports of the event at our local high school suggest that the event is school sanctioned. (re locomotive's question)

"The Snoqualmie Valley School District has been trying to contain the controversy by requiring all students who participate Friday to attend a training session that outlines administrators' expectations for student safety and a calm educational environment."

And if you want disruptive: at last years event, one of the teachers reportedly refused to speak for the entire day.

By the sounds of this article, it doesn't sound like much in the way of traditional schooling will be going on tomorrow....but hopefully some learning. Who knows. But the "Day of Silence" is clearly disruptive. Way more disruptive than a t-shirt.

Seattle Times Link
4.24.2008 9:49pm
RowerinVa (mail):
It's clear that the primary job of schools is to educate students; therefore, actions that disrupt that mission can be subjected to reasonable limitations. But it's also clear that: (1) unpopular speech / expressive action is quite often disruptive, or will be accused of being so; and (2) one of the key things American students need to be educated about is free speech, both in the right to engage in it and the corollary right to tolerate it in others.

One problem is the nature of a t-shirt. The shirt is always "on," in the way that a person who is anti-gay isn't perpetually saying "don't be gay." If a student in a math class were to continually, audibly say "don't be gay don't be gay" when the topic was calculus, obviously he could be told to shut up. It's much harder to tell him to shut up when he's in the hall, harder still at recess, and clearly unconstitutional if he's at a PTA meeting or on the sidewalk outside. But you can't tell a t-shirt to shut up.

The issue is the disruption -- the effect -- not the speech / expressive action in a vacuum. A judge shouldn't try to judge the speech just by looking at the t-shirt. The reactions of the other students do matter, up to a point. If teachers or interest groups tut-tut but fellow students all yawn, then there can't be any justification for restricting this speech -- the school's mission isn't imperiled, and arguably is helped. The same answer must apply if only a small number -- 5%? -- of students freak out; clearly, outliers who hate a type of speech need to be educated (there's that word again) that it is they who have a problem understanding the limits of expression, not the speaker, no matter who's right or wrong or rude or whatever else.

Let's take a harder case where 50% of the students freak out. Then, the school has a real disruption, and should act. But how to act? Answer: to the minimum restriction possible. Tell the student to cover the t-shirt, but:
1. only in contexts where the shirt interferes with the educational mission, e.g., in math class;
2. only for a limited time, to let the freakouters calm down (these, after all, aren't adults); and
3. the school needs to take reasonable steps to educate the freakouters that the world isn't always going to cater to their whims, and they need to learn not to freak out when they are confronted by nothing but big, bad words.

The ban must have a sunset provision. If, say, a month later the kid wears the shirt again, and there's no education-imperiling result, then leave the speech alone.

Why don't speech restrictions always have sunset provisions? Shouldn't they?
4.24.2008 9:54pm
Respondent:
Prof. Volokh,

The situation is only going to get worse and more murky when the Supreme Court overrules Saucier v. Katz next term.
4.24.2008 10:03pm
gattsuru (mail) (www):
I'm not quite sure what the right to freedom of speech protects, if it doesn't protect speech that could possibly lead other, unrelated individuals into disruptive behavior.

But I've never been particularly content with the SCOTUS holding on the matter.
4.24.2008 10:03pm
ithaqua (mail):
The liberals are pushing Christ-free schools with the same obsessive panic that they show when pushing gun-free schools. It's nice to see that the courts have put at least some limitations on public schools' ability to forbid contempt for the utterly contemptible.
4.24.2008 10:04pm
jps:
Yeah, I'm pretty sure that all 3 judges on the panel would:

1) find nothing wrong with "Christ-free schools" -
- I'd point out the chief proponent of such schools is the ACLU, who also support the rights of the student in this case
2) find an equal protection violation if the school described gay students as "utterly contemptible", or allowed its employees to do so in class.

No guns, no christ, and gays- my my, what is the world coming to.
4.24.2008 11:32pm
Oren:
Generally, I support free speech in school so long as it doesn't interfere with school activities.
Interference or disruption is a impossibly difficult legal standard to apply since there is no demarcation between expressing views that are contrary to the school's message and disrupting the school's ability to convey that message. It does not seem that there can be such a boundary at all - at least in the sense of a bright-line test. While I'm generally against letting school administrators suppress any more speech than is absolutely necessary, I'm coming to believe that this goal might be contrary to the equally important goal of efficient and sparse judicial intervention (every dollar spent on lawyers isn't spent on teachers). Bummer.

That said, here's hoping that Morse should not be read literally but rather as (yet another in a growing series of) "drugs are bad" exceptions to the Constitution. It should be considered an insult to the founders, IMO, to imply that they created a document incapable of dealing with this problem.
4.24.2008 11:46pm
Bruce Hayden (mail) (www):
Let's see if I get this right. Forced speech in the guise of the "National Day of Silence" is ok, but voluntary speech in response to the forced speech can be suppressed? (ok, the case went the other way, but what if it had happened in the 9th Circuit?)
4.25.2008 12:05am
Oren:
Bruce, what precisely in the record indicates any forced speech at all?
4.25.2008 12:13am
Brian G (mail) (www):
I'll say it again: I want to see the case where a students wears a shirt that says "Bush is a no-good fucking faggot."

I'd love to see how a court addresses the circuit conflicts on that.

For the record, I participated in a national moot court competition while in law school where the issues dealt with Tinker, Hazelwood and their progeny, and I feel like I have good knowledge on this subject. I think the 7th Circuit is correct and the 9th Circuit is as usual, dead wrong.
4.25.2008 12:14am
Oren:
Brian, obscenity is outside Tinker. Try "Bush is a no good darn (or dern, south of Mason-Dixon) faggot" for best results.

FWIW, I think the 9A was dead wrong on their reasoning in Harper but the result is correct according to Morse (unless, of course, Morse is only about drugs).
4.25.2008 12:18am
The General:

"What else was the point but to BE derogatory?"


How about being provocative? why is anything even remotely against the radical gay agenda considered "hate" speech and, here, derogatory? It's because THEY'RE TRYING TO SHUT YOU UP!

Good for this student. It takes real courage to do what he did, especially in that type of anti-morality environment.
4.25.2008 12:55am
Sua Tremendita (mail):
So the absolutely true statement that


"blacks have lower IQs than whites"



is not okay? Nice. Hey, truth is for suckers. We are all above average.
4.25.2008 1:27am
Frater Plotter:
Of course, the ACLU has no interest in "Christ-free schools" and frequently defends the right of public school students to religious expression.

ACLU of New Jersey successfully defends student's right to sing a religious song in a talent show.

ACLU of Michigan successfully gets a school to stop censoring religious valedictorian speeches and yearbook entries.

ACLU of Massachusetts successfully defends students' right to distribute religious messages at Christmastime.

The ACLU does, however, consistently oppose the inculcation of religious belief in public school curricula, the diversion of taxpayer money to support religious indoctrination, the exclusion of students from public school activities on the grounds of religion or lack thereof, or the compulsory performance of religious rituals in public schools.
4.25.2008 1:28am
Cornellian (mail):
You can bet that the kid will be pushing this further and further. It's the nature of the beast.

My experience as a teenager was that any kid inclined to display some Serious Political Message on a T-Shirt was generally regarded as a social pariah, regardless of the particular message or issue. This kid will probably get mocked for the remainder of his time in high school.
4.25.2008 3:22am
eyesay:
locomotivebreath1901 wrote "for most people, homosexual activity is something that elicits a gag reflex, and is still viewed as perverse &aberrant behavior. It is not something that should be taught to children, or given official sanction at the tax payer funded govt. schools anymore than religious expression."

1. Please supply evidence for the assertion "for most people, ... gag reflex."

Are you saying that most (heterosexual) people gag at the thought of themselves engaging in homosexual activity, or that most (heterosexual) people gag over what other consenting adults do in the privacy of their own bedrooms?

And why should this be the basis for public policy?

2. For the clause beginning "and is still viewed," did you mean "and is still viewed by at least one person" or did you mean "for most people, it is still viewed ..."? If the latter, please supply evidence.

Driving to an exercise facility can also perverse and abberant behavior — one could save time, money and resources, and reduce pollution, by walking or bicycling instead of driving — should this behavior be prohibited?

3. By "It is not something that should be taught to children," do you mean that public schools should (a) deny the fact that homosexual activity occurs regularly among millions of law-abiding, upstanding American citizens; (b) deny the fact that homosexual activity between consenting adults is legal in the United States per Lawrence v. Texas?

4. By "given official sanction at the tax payer funded govt.," do you mean the right to discuss homosexuality in a manner that doesn't disrupt education? Do you really want to flush the First Amendment down the toilet because you are personally grossed out by the thought of what two men or two women might do in the privacy of their own bedrooms?
4.25.2008 3:50am
theobromophile (www):
The article doesn't say (and the link to the case doesn't work) whether the pro-gay Day of Silence was observed in the school. If it was then prohibiting peaceful anti-gay protest is at best hypocrisy. Sauce for the goose is sauce for the gander.

Ditto and then some.

When I founded and presided over a Gay/Straight Alliance in high school, a LOT of students tried to shut us up. My response (in retrospect, not bad for a 17-year-old) was along the lines of, "Don't like it? Then don't rip down our posters and complain about our weekly meetings; put up your own posters and have your own meetings." At least when I was in high school, your own speech rights were vindicated through those of your opponents: the best argumetn for controversial speech was that it could be countered by one's opponents, rather than being silenced.

The Seventh Circuit's opinion seems to leave the door open to silencing of degrading speech (perhaps obscenity?), but does so very awkwardly. Instead of simply stating that the ruling is limited to benign speech made in direct reference to symbolic speech - there is a certain irony to giving the name "speech" to activities associated with the Day of Silence - the court felt the need to provide abstract examples. Maybe their case load is too small and they are trying to increase litigation.

The Ninth Circuit panel created an expressly viewpoint-based exception to student free speech rights, based on a supposed "right" of "minority" students to be free from "derogatory and injurious remarks directed at [their] minority status such as race, religion, and sexual orientation."

Is there a priority list for race, religion, and sexual orientation? What happens when an Islam student wants to criticise homosexuality or argue for dhimmitude? Enquiring minds want to know!

There is a certain irony in liberals using speech restrictions to their advantage. Thirty years ago, First Amendment rights vindicated liberal causes - theirs were the outcast opinions in need of Constitutional protection. Have they not figured out that it might be against their own interests to fight speech they don't like - that a court ruling for oppression can work against them in the future?

At any rate, so long as school attendance is mandatory, or functionally mandatory from the point of view of students who lack a choice to attend a private or a charter school, and so long as schools continue to fulfill both a social and an educational mission, schools will have to permit speech that they dislike. Unless a school district would remove all non-educational speech from its building - an interesting feat when extracurricular activities of all variety are involved - it will inevitably face speech it does not like and that other students do not like. So long as students are forced into an environment with speech that they dislike (whether it be the books they read in class, the lessons they get from sex ed, or the speech of their peers), they will protest, often with speech of their own.

Maybe I give high schoolers too much credit, but I don't think they will find this stuff to be disruptive. Some of them are completely apathetic and will ignore all of it; some of them will react the first time; and a lot of them will eventually think, "Oh, that's just Tim wearing his Christian shirt again. Yawn."
4.25.2008 5:18am
Fearless:
I do not think that total viewpoint neutrality is possible or even desirable.

It is pretty obvious that how and whether speech is disruptive to the educational process has something to do with the viewpoint expressed.
4.25.2008 5:40am
ERH:
I'm willing to wager the if the shirt read:

Be happy, not jewish.

or perhaps

Be saved, not jewish

the outcome of this case would have been different. BTW: the link to the decision doesn't seem to be working.
4.25.2008 8:28am
Tom952 (mail):
Based on point number 3, why should any distracting speech be allowed in schools? If the school tries to regulate distracting speech, they become immersed in the problems of of their own viewpoint bias, fairness, balance, tepid vs hot, and so on. The students have ample time outside of school hours to exercise their right of expression.
4.25.2008 9:49am
Aultimer:

ERH:
I'm willing to wager the if the shirt read:

Be happy, not jewish.

or perhaps

Be saved, not jewish

the outcome of this case would have been different.


Maybe (though I assume you're trolling), but other examples do point out a problem with the reasoning -

Be saved, not Catholic. - worn on Ash Wednesday in Boston.

Be Catholic, not "saved". - worn on January 30 (Bloody Sunday) in Minnesota.

These aren't more facially negative or derogatory than the case, but might well provoke a more substantial response because of the much larger numbers of the subject faction (not the content of the message, as in their examples).

So the majority seems to be saying that negative speech is permissible if the targets are too few (or generally passive) to cause a disturbance. Chess club/band geeks beware, I guess.
4.25.2008 10:22am
Horatio (mail):
There is only one real solution - get government out of education. Start with the abolition of the US Department of Education.

Anything less is jockeying for power over who controls these schools and the Federal Overlords.

There is a difference between schooling and education. Government-run institutions do not necessarily engage in the latter
4.25.2008 10:24am
Happyshooter:
Government speech in schools is union left wing speech.

To allow the 'teachers to decide' is to turn the schools into reeducation camps where mind numbed robots learn only the left wing scripture approved by the NEA.

With the current supreme court law allowing government punishment of speech uttered off school grounds (Bong Hits), cases forbidding free speech by student insure 18 years of raw union garbage being shoved down kids throats with the citizen victim being forbidden to express a contrary view or even question the union beliefs.
4.25.2008 10:28am
Oren:
Horatio, Happyshooter: To a very large degree (NCLB did shrink this a bit, but not much), most schools are run by local school boards, elected directly by the population of the district.

As far as "union" speech, I distinctly remember learning about comparative advantage and the benefits of free trade (and folly of protectionism) in HS economics. I guess that was a mistake by the NEA goons . . .
4.25.2008 10:49am
SeaDrive:

Interference or disruption is a impossibly difficult legal standard to apply since there is no demarcation between expressing views that are contrary to the school's message and disrupting the school's ability to convey that message.


Agreed. Schools are expected to provide both leadership and education in citizenship values. To do so requires some measure of power to require conformity.
4.25.2008 10:50am
Horatio (mail):
Horatio, Happyshooter: To a very large degree (NCLB did shrink this a bit, but not much), most schools are run by local school boards, elected directly by the population of the district.

Sure - as long as they follow Federal guidelines, rules, regulations, etc... Almost every aspect of any school's operations fall under some form of federal rule, including OSHA, EPA, Dept of Ed, Dept of Labor, etc...
4.25.2008 10:56am
Oren:
Horatio, those regulations that you cited have nothing to do with the educational content. OSHA would prefer that you didn't saw your hand off in wood shop, the EPA would rather you dispose of mercury in a way that doesn't contaminate groundwater -- in brief: totally irrelevant.
4.25.2008 11:11am
Oren:
Agreed. Schools are expected to provide both leadership and education in citizenship values. To do so requires some measure of power to require conformity.
This is especially true when we are confronted with 'citizenship values' that are fractured. Speech that encourages the repeal of drug laws, for instance, can be said to be political advocacy and therefore promotes citizenship values or it's interference with the anti-drug message of the school. Speech calling for the withdrawal of soldiers from Iraq or speech calling for the keeping of soldiers in Iraq could likewise go either way.

Perhaps at some point a standard ceases to be a standard because it simply cannot be applied evenhandedly.
4.25.2008 11:16am
shawn-non-anonymous:
Just as a clarification, as I understand it, the Day of Silence is not an "official" school event. People know about it and choose to participate as individuals.

The event is intended to highlight school bullying against homosexual children who are sometimes unable to seek help from faculty or family.


p.s.: still waiting for my official copy of the Radical Gay Agenda(tm). Has anyone else gotten their's?
4.25.2008 11:50am
Oren:
Shawn, didn't you go to the big meeting last month? We all got together to discuss our plans for undermining straight society and turning all the kids gay. I'll have them send you the minutes.
4.25.2008 12:05pm
Crackmonkeyjr (www):
Oren:
You misunderstood me. When I said that I support speech in school so long as it doesn't interfere with school activities, I don't mean the message of the speech, I mean the message of the speech. If some kid stands up in the middle of English class and starts ranting about whether we should be in Iraq, it is ok to stop him. If the kid is standing on a soapbox during his free time, but on school property, and ranting about whether he should be in Iraq, he should be allowed to do so (so long as he isn't blocking the hallway and is allowed to be talking in that area).
4.25.2008 12:08pm
Temp Guest (mail):
I'm curious why the courts have not found that this "Day of Silence", which encourages students to refuse to participate in class and teachers to refuse to teach, is not disruptive. I'd also add that this "Day of Silence" supports behavior that is harmful to public and individual health. Peer-reviewd publications suggest that homosexual behavior reduces individual expectation of life by a factor far greater than almost any other risky behavior, e.g., smoking. The public health costs of homosexual behavior are comparable to those of substance abuse.

Consider what the courts might think of a national "Day of Smoking" in schools? Would this be any more disruptive than the "Day of Silence"? By any reasonable standard of disruption, the tee-shirt is far less disruptive and harmful than the school-sanctioned behavior it was meekly protesting.
4.25.2008 12:27pm
Oren:
Ok, but can he advocate smoking dope on his soapbox? Cheating on tests? Rounding up the jews into camps?
4.25.2008 12:29pm
Oren:
Peer-reviewd publications suggest that homosexual behavior reduces individual expectation of life by a factor far greater than almost any other risky behavior, e.g., smoking. The public health costs of homosexual behavior are comparable to those of substance abuse. [Citation Needed]
4.25.2008 12:30pm
Crackmonkeyjr (www):
Oren:
I would ascribe him the same rights to talk about those things on his soapbox, as I would if he were doing it in the public square. If those things are spoken about in general terms, it would be allowed, if they were spoken about to incite immediate action, he shouldn't be allowed to do so. The school should be allowed to set aside certain times and places when public speaking, regardless of the content, is not allowed, but if they allow someone to give a rousing speech about how the football team should win, they shouldn't be allowed to prevent another person from giving a rousing speech about how Hitler was a decent guy.
4.25.2008 12:41pm
whit:
"The event is intended to highlight school bullying against homosexual children who are sometimes unable to seek help from faculty or family. "

i may be "old school" but the only thing in my experience that works with high school bullies is a good punch.

seriously.

i realize schools want to take a zero tolerance policy against violence and all that PC crap, but what bullies really respond to is somebody standing up to them, and if they push you, you push back... harder

the idea that school admin's can do anything real about bullying is a bit optimistic. not to mention that this creates kind of a tattletale culture in school. running to a teacher and whinging about being picked on is generally not going to get you respect, even if it gets the student punished and solves the problem short term.

that's just the reality in school.

iow, if you are being bullied in school seek help from a weightset or a self defense class.

again, not that PC. but it works.
4.25.2008 12:48pm
plutosdad (mail):
If it said "gay people are bad people" that would be derogatory, but it didn't say that, it just said "[don't] be gay".

To say we can't talk about those issues is to remove any chance of us talking about ethics and morals at all! How can we as a society progress if we can't discuss issues?

Of course I also think the school can do what it wants, but then I never had any experience with issues like these. Whenever kids wore things like that to my high school, the teachers would ask them to cover it, they'd say no, and then the school and other students would just ignore them, which is the best way to fight it since students that wear shocking things are doing it for attention.

In my mind, the "day of silence" is a lot more disruptive depending on how many students participated. I have been in many classes where I was graded on classroom participation. That just sounds bizarre to me that a school would promote not participating in school. I mean, maybe promote anti-violence against homosexuals some other way, but not by a day of silence.
4.25.2008 1:41pm
shawn-non-anonymous:
Whit,

While I understand that "a good punch" can be useful against a bully, I'm not so sure it's going to be terribly useful against a gang of bullies. Bullying, in this case, isn't always the traditional big mean kid sort.

Who's to teach the kid to fight? His dad? His older brother? Both of them are just as likely to bully a gay kid as anyone else.

I don't think being "PC" has anything to do with this. If someone had come to me and tried to teach me to fight back when I was a kid, I'd have been more than happy to learn. Although that would have done little to stop the verbal attacks, which I think are far worse.

Gay Teen Suicide Data
4.25.2008 2:12pm
Smokey:
...most schools are run by local school boards, elected directly by the population of the district.
Yes, and that system causes major problems in education.

Board members are almost never able to get themselves elected without the support of the Superintendent -- the Board's putative employee.

Once a Superintendent is appointed, the schmoozing and butt kissing of each Board member begins in earnest. Any Superintendent with half a brain is in constant communication with the Board. The [publicly] unspoken deal is: you keep me in my position for as long as I want it, and I will use my authority, my position, my heavy influence with the union, and my influence with the local community to get each of you re-elected for as long as you wish.

Who wins? The Superintendent and the School Board with their incestuous relationship, and the union. Who loses? The students and the taxpaying public. How do I know? Mrs. Smokey has been a school principal for the past 17 years, and in every Board election the Supe puts the arm on her and the other administrators to support the designated candidates. The alternative is demotion to a teaching job and salary.

It's a bad system. The insiders have learned to game it, and that's why the winners and losers are who they are. Too bad for the kids and the taxpayers, but that's the way things are in the education racket.
4.25.2008 2:18pm
Brian G (mail) (www):

Brian, obscenity is outside Tinker. Try "Bush is a no good darn (or dern, south of Mason-Dixon) faggot" for best results.



Of course you are correct Oren. What bothers me is the difference in the interpretations in the circuits, especially the 9th Circuit, which seems to want to protect a favored group from being forced to hear or see viewpoints that they might not like.

I once said in my law school First Amendment class that hearing criticism and things I don't like is the price to pay to have a free society. Of course, the class came up with all kinds of exceptions, which drove me nuts. One classmate said, "I think Hog Black had it right," to which I responded, "Of course he wants the most expansive interpretation of the First Amendment as possible. As a former KKK member, he understands the value of the First Amendment." That didn't go over too well.
4.25.2008 2:19pm
Temp Guest (mail):
Oren:

This article suggests that homosexual male life expectancies are 8-20 years less than those of heterosexual males:

R.S. Hogg, S.A. Streathdee, K.J. Craib, M.V. O'Shaughnessy, J.S. Montaner, and M.T. Schechter, "Modelling the impact of HIV disease on mortality in gay and bisexual men," International Journal of Epidemiology, Vol. 26, 657-661, 1997
4.25.2008 2:20pm
whit:
"While I understand that "a good punch" can be useful against a bully, I'm not so sure it's going to be terribly useful against a gang of bullies."

that's when u have to break out the 3l33t n1nja sk11z!!

" Bullying, in this case, isn't always the traditional big mean kid sort. "

when we are talking about schools, that's generally the case.

and fwiw, when i refer to bullying im talking about physical stuff. name calling etc. is often called "bullying" but i think it is better described as harassment. let's not define deviancy up and claiming every little verbal slight is "bullying". just like name calling is thought of by many DV advocates as "domestic violence". no, a punch is domestic violence. calling a S/O "fat and a stupid b*tch" is being a jerk. not DV.


"Who's to teach the kid to fight? His dad?"

yes. this is the typical archetypal duty of dads.

otoh, some moms are pretty good. my wife is a darn skilled kickboxer.

" His older brother?"

him too.

" Both of them are just as likely to bully a gay kid as anyone else. "

not when it comes to a dad's son.

anecdotally. i have barely ever responded to a police detail where a DAD called to report his son was being bullied at school, or to report some minor ass stupid assault.

it's almost ALWAYS the single mom. this goes along with the archetype. if son comes home and says "johnny punched me at school" or on the way home, dad says "punch him back".

mom calls the police.

i've seen this syndrome countless times in 20 years. it's frigging comedy how consistent it is. i have (on a few occasions) had moms call the police because their kid wouldn't go to school? i have never had a dad call for that reason. dad would (hopefully) smack the kid on the ass and tell him he's going to go to school !

sorry, old school again
like a friggign minor juvenile skirmish should be a POLICE MATTER? get real.

like i said, im old skool.

i could go off on a tangent and get into the whole single parent, sociopathology, statistical rant but i won't :)


"I don't think being "PC" has anything to do with this."

sure it does. it's PC in schools (just look at the posters) to believe that violence never cures anything, that it's never the answer, etc.

bull.

" If someone had come to me and tried to teach me to fight back when I was a kid, I'd have been more than happy to learn."

did u have a dad? they teach that in "dad school"

" Although that would have done little to stop the verbal attacks, which I think are far worse"

i think generally speaking, whinging about verbal attacks is overdone. the real world is often nasty, mean, and unfair.

expecting to go through high school without getting picked on is unrealistic.

i don't believe in creating a victim culture. or increasing the power and reach of the state out of perceived need to "help" all these victims of bullying, etc. i am generally against cops in school, dare, etc. fwiw.

i realize this advice isn't always practicable. but the alternative "that violence is never the answer" is PC crap that the schools teach.
4.25.2008 2:26pm
whit:
"What bothers me is the difference in the interpretations in the circuits, especially the 9th Circuit, which seems to want to protect a favored group from being forced to hear or see viewpoints that they might not like. "

this is the far left's response to free speech concerns. just check out www.thefire.org or many campus speech codes.

so, it is not surprising that the 9th circuit would be in agreement with this bogus "philosophy"

\
4.25.2008 2:27pm
eddiehaskel (mail):
Does any think the result would have been the same if the T-Shirt said

Be Happy, not Christian.
4.25.2008 2:39pm
Helpful:
The opinion.

Bashman explanation of how to link to CA7 opinions.

[EV: Thanks, updated the post accordingly.]
4.25.2008 2:41pm
SeaDrive:

How do I know? Mrs. Smokey has been a school principal for the past 17 years,...


Based on Mrs. SeaDrive's experience as a Board of Ed member, I think you should be cautious about extrapolating beyond your own district. Yes, our system has dysfunctional elements, but the dynamic is very different from what you describe.

In challenging school districts, the tenure of a Superintendent is very short, perhaps a median in the range of two or three years. The Super does not have time to build the political power you describe. BoE power relationships in our city have more to do with the local political parties than anything to do with the Superintendent.

School principal is a hard job. Typically, one might have 50 direct reports and daily custody of 500-1000 children. District-wide policies and directives limit the range of action. I think they need a little latitude to act as they see fit without excessive second-guessing.
4.25.2008 3:36pm
shawn-non-anonymous:
Whit,

My adopted father hit me too. He though that by treating me rough like this he'd "toughen me up" and I wouldn't grow up gay. (old skool, archetypal Dad reaction.) By the time I reached high school, my father and I were avoiding each other and my mother had given up trying to protect me or bridge the gap between. I later found out that they pretty much assumed I was going to be gay at that point. That would be 1980, sophomore year.

It would be nice to think parents would support their gay children, but these days that's a roll of the dice. I know several people that were kicked out of the house at young ages, one under 16 (in Texas, no less).

FWIW: I support the jerk kid's right to wear his t-shirt. I also support the school's right to adopt uniforms. ;-)
4.25.2008 3:49pm
whit:
uniforms are actually a pretty good option. i know that strikes americans as just WRONG, but there are a LOT of advantages to uniforms.

i say this as somebody who went mainly to bohemian prep school - no uniform.
4.25.2008 3:55pm
Smokey:
Based on Mrs. SeaDrive's experience as a Board of Ed member, I think you should be cautious about extrapolating beyond your own district.
My wife has been an assistant principal and a principal in four (4) different school districts. They all operate exactly as described above.

You are very fortunate that gaming the system hasn't reached your district yet. But it will in time. When it does, it will never revert to an honest system that puts the welfare of the students first.

In the mean time, to avoid the blurring of the lines between the employer [the Board] and the employee [the Superintendent], an open meeting policy should be instituted, which requires that any and all contact [personal; telephone; email, etc.] between the administration - from the Superintendent on down - and any Board member, may occur only in a meeting with the entire Board present.

Also, whit's suggestion to require uniforms is excellent. Enormous amounts of time are wasted trying to keep students from wearing red or blue colors [Nortenos/Serrenos gang colors]. It's hard to understand why uniforms aren't required in all government schools.
4.25.2008 4:33pm
Horatio (mail):
Oren--
Horatio, those regulations that you cited have nothing to do with the educational content. OSHA would prefer that you didn't saw your hand off in wood shop, the EPA would rather you dispose of mercury in a way that doesn't contaminate groundwater -- in brief: totally irrelevant.

Amazing how many kids went through wood shop without cutting their hands off prior to OSHA.

My point is simple - the Feds control the schools through all sorts of rules and regulations from all different Federal agencies.

And as Smokey noted above, the inmates are running the asylum
4.25.2008 5:11pm
Steve2:
Whit, I agree with you that the appropriate response to bullying is to teach the bullied kid to fight back with all the radiance of a thousand suns, though I disagree with you about the name-calling. Somebody punches you, punch them back. Somebody calls you names, punch them back. A bully is a jerk is a bully is a deserves-what's-coming-to-them when they get their neck broken by the picked-on shrimp who joined the wrestling team and bulked up.

As to the opinion... my favorite thing about it is Rovner's first footnote! Is it really a good idea to open your concurrence with a simile you feel the need to explain in a footnote? I'm thinking the answer is "no".
4.25.2008 5:13pm
whit:
"picked-on shrimp who joined the wrestling team and bulked up. "

cue: Henry Rollins


"Through the years, I have combined meditation, action, and the Iron into a single strength. I believe that when the body is strong, the mind thinks strong thoughts. Time spent away from the Iron makes my mind degenerate. I wallow in a thick depression. My body shuts down my mind.

The Iron is the best antidepressant I have ever found. There is no better way to fight weakness than with strength. Once the mind and body have been awakened to their true potential, it's impossible to turn back.

The Iron never lies to you. You can walk outside and listen to all kinds of talk, get told that you're a god or a total bastard. The Iron will always kick you the real deal. The Iron is the great reference point, the all-knowing perspective giver. Always there like a beacon in the pitch black. I have found the Iron to be my greatest friend. It never freaks out on me, never runs. Friends may come and go. But two hundred pounds is always two hundred pounds"
4.25.2008 6:13pm
Oren:
(1) Whit wins the thread.

(2) Hogg actually never attributed the apparent rise in gay mortality to homosexual behavior. In fact, he specifically left open the possibility that there are confounding factors (e.g. open gays live in urban environments which are more dangerous than rural areas, gays whose obits are in the gay paper (his source) are more likely to be part of the 'scene' and therefore engage in dangerous behavior). He wrote a followup in 2001:
It is essential to note that the life expectancy of any population is a descriptive and not a prescriptive measure. Death is a product of the way a person lives and what physical and environmental hazards he or she faces everyday. It cannot be attributed solely to their sexual orientation or any other ethnic or social factor. (Hogg et al, 2001, p. 1499).

In contrast, if we were to repeat this analysis today the life expectancy of gay and bisexual men would be greatly improved. Deaths from HIV infection have declined dramatically in this population since 1996. As we have previously reported there has been a threefold decrease in mortality in Vancouver as well as in other parts of British Columbia. (same)


(2)
My point is simple - the Feds control the schools through all sorts of rules and regulations from all different Federal agencies.
I thought it was the illuminati (or are they just a cover for the freemasons). Also, I think you and I have a serious misunderstanding about what the words "control" means (and you're point isn't simple, it's disingenuous).

What bothers me is the difference in the interpretations in the circuits, especially the 9th Circuit, which seems to want to protect a favored group from being forced to hear or see viewpoints that they might not like.
This is indeed an absurd interpretation. If I were on the 9A, I would write an opinion that exactly parallels Morse but replace "promotion of drug use" with "promotion of intolerance and hatred". After all, both are illegal (at least in CA), both are contrary to the message of the school (at least in CA) and both can be said to be fundamental in teaching kids how to live in modern society. I wonder what the Supreme Court would do with that (seriously, I hope AMK's head explodes because, even though I respect him very much, I just cannot for the life of me understand the reasoning in Morse).

Smokey: I suppose if the voters are too stupid to fix this shell game by electing a BoE that has integrity then we are indeed already lost. It's not that I don't lament the state of the system that you described (truly horrific, really) but I don't blame the teachers, the super, the BoE or the mysterious and all-powerful union. Mencken said it best: "Democracy is the theory that the common people know what they want, and deserve to get it good and hard."
4.26.2008 12:08am
Randy R. (mail):
"It takes real courage to do what he did, especially in that type of anti-morality environment."

Yes, it takes tremendous courage to hurl insults at people you dislike. I suppose your hero is Brandon McInerney. He's the guy who shot Lawrence King in the back of the head during a class just because King was gay. King was 15 years old, and Brandon is 14.

What a great blow for traditional morality!
4.26.2008 11:48am
Bender (mail):
Oren:

That was a recantation under PC pressure from the homosexual lobby. However, here are the directions for getting to hundreds of pages of additional research citations linking homosexual behavior to dozens of diseases that cause early death and very large public health costs:

Go to Google. Use the search criteria +homosexual +STD. Skip the first page, if you want to discount the importance of HIV or AIDS. Even excluding entirely the impact of HIV/AIDS, a homosexual life style lowers life expectancy more than smoking and imposes enormous economic costs and public health risks on all of society.
4.26.2008 5:27pm
Bender (mail):
Randy R.

Sounds like you're having a hissy fit.
4.26.2008 5:29pm
Randy R. (mail):
Hey Bender, great comeback! Your comment shows just how much fun it is to pick on gays. Yes, shooting a kid simply because he is gay is always good clean fun, and there is no reason to take it very seriously. And if that doesn't work, make sure everyone knows that our immoral lifestyle leads to nothing good.

And I suppose all us gays choose 'the homosexual lifestyle' so that we can enjoy all this good natured bullying from people like you? Or is the wonderful lowered life expentancy? Please, I love to all what the benefits are to being gay so that I can recruit all your children!
4.26.2008 7:50pm