I really wish that people would just refrain from being assholes so that cases like this one weren’t necessary. Sadly, people are assholes, and insist on wearing t-shirts bearing slogans like, “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful” on the back to school. Which, I think most right-thinking non-asshole people can agree, is bad. And not appropriate.
But is it Constitutionally protected?
The 9th Circuit Court of Appeals says no (pdf). And, based on Supreme Court precedent, I think they made the correct legal decision. But it’s not an easy issue.
The Supreme Court case that they relied heavily on is Tinker, which asserts that, while students do not abandon their free speech rights at the schoolhouse gate, the school environment imposes restrictions on speech which will substantially interfere with education and order. In other words, expression that is harmful and distracting is not protected in schools, just as certain types of inflammatory speech are not protected anywhere in public.
The question, then, is whether this anti-gay t-shirt is sufficiently distracting and harmful. I think that it is, and I think it’s also laughable that the student’s lawyers argued that making him remove the shirt was infringing on his religious rights. Not allowing him to wear an offensive t-shirt doesn’t infringe on his beliefs or the practice of his religion, and the rule against offensive t-shirts in schools is a neutral one that doesn’t target religious shirts. So that contention is just plain silly.
It’s also clear that gay and lesbian students often suffer harassment at school, and are harmed by such harassment.
The court is also clear that this is partly an issue of maturity. It has long been held that people of minor age have fewer rights in some areas than do people of major age. Perhaps that isn’t entirely fair, but the court here says that this ruling only applies through high school, and not to college campuses, where students are ostensibly more mature.
The kid who wore the shirt was clearly doing so for attention — he even asked the principal to suspend him over it. Twice.
On the other hand, though, I’m a big fan of free speech rights, and I’m not sure that limiting those rights in public schools is a great idea. But it’s true that speech is always legally balanced according to the potential harms, and I wonder what the reaction would be if, as the Court suggests, a student wore a shirt reading “All Jews are Christ-Killers” on Religious Tolerance day. So while I think that the outcome of this case is ultimately fair-minded, I say so with some hesitation.
It pains me to say it, given the ugliness of the speech at issue, but I think the court got this one wrong. They say they “reaffirm the importance of preserving student speech about controversial issues generally and protecting the bedrock principle that students ‘may not be confined to the expression of those sentiments that are officially approved,’” and they should have stopped there. There’s no “except for bigoted crap” clause in the First Amendment.
The dissent makes clear that there was no great disruption to the educational process in this case, and absent that — absent a specific, dramatic disruption in that school on that day because of that shirt — I don’t think you can even begin to make the argument for censorship.
High school students are infantilized and patronized too much by our society. I think the court got that much right in Tinker, and I consider this decision incompatible with that of the Tinker majority.
I’m a huge fan of freedom of speech, even if that means allowing the local chapter of the Klan to stage a rally in my hometown. That said, living in Germany, which has a checkered history on human rights, many forms of hate speech are now punishable by jail time. I’m not so sure that’s a bad thing.
I think that such speech is responsible for stirring up sentiments which often lead to hate crimes. In my book, that chalks up to at LEAST Criminal Negligence, if not Inciting a Riot, Disturbing the Peace, Assault, or even Aiding and Abetting a Felony. Don’t punish the shirt in school. Don’t punish the kid for expressing his views. Just send in a cop to arrest him for Creating a Public Disturbance.
Freeman:
I keep missing the sarcasm. Could it be that you are serious and actually can’t see why this is laughable?
Don’t punish him for expressing a hateful view, just send a cop to punish him (which means have laws against some kind of expression). Yeah, you’re a HUGE fan of freedom of speech. /sarcasm
Jill:
If schools want to rule out disturbing stuff within their property, out of educational concerns (which include students being forced to behave respectfully toward each other) no big deal. Problematic when applied to whole society, and is so-and-so in the case of public schools.
And this:
is somewhat damning. Someone wants to play a martyr for fundamentalists, methinks.
That said, I wish people who want to cencor some (“hate speech”) views would just say so, instead of going on about how freedom of speech is important, BUT [insert an exception to freedom of speech], and this totally does not infringe on freedom of speech, like Tinker did.
Or not Tinker (misread that, actually), but generally people who have exceptions in freedom of speech but lack the intellectual integrity to admit that they are limiting freedom of speech..
As they say, “As long as its funded by state dollars”…
I would hope that schools felt an obligation to make their GLTBQ students feel safe and free from these brainwashed kids trying to malign them…
Holla! to Washington and Ron Sims for this too: http://www.metrokc.gov/exec/news/2006/0406civilrights.aspx
No, I am. If people want to express unpopular views in the public forum, there’s a provision for that. It’s called “Peaceful Assembly for the Redress of Grievances.” Government institutions, such as public schools, are not the place for that.
The Klan, for example, has the right to stage rallies in public. But anyone who goes into work wearing a Klan or Aryan Brotherhood T-shirt is probably going to face consequences. I don’t see how this is that hard.
How about next time, instead of jumping on me for an ill-considered chance to showcase your rapier intellect, you actually stop and think through an argument before engaging your keyboard to offer a rebuttal? I’m on your side, here. Remember that.
Hint: Sarcasm is the riposte of the weak-minded. See Ann Coulter.
Freeman:
How many legs does a dog have if you count the tail as a leg? Four — saying a tail is a leg does not make it so.
Perhaps you missed when I wrote that limiting certain kinds of expression (=cencorship) is a right that private institutions have. Public schools? Difficult border case.
As for your Free Speech -fandom, you did admit:
So you like Free Speech, when it’s not “hate speech” (whoever gets to define that? Government? Can you trust it to be fair and not misuse the power to maintain status quo? Do you think it is a good idea to handle the government (elected with popular = majority) the power to protect minorities from the majority [can you see the problem there]?). I have little respect for “I’m a fan of Free Speech, but…” -crowd. Whether invidual institutions (again, public schools are a difficult border case) want to limit certain kinds of expression, no problem — goes with the freedom of association.
*Off-Topic*
I just have to break down this argument with the notorious rapier intellect of mine :P:
1) You praise my intellect
2) You note that sarcasm is the riposte of weak-minded
3) Fact: I used sarcasm (no question about it, I marked it with “/sarcasm”)
4) Due to points 2 and 3, you consider me weak-minded, or at the very least using weak-minded arguments
5) Your praise toward my intellect can not be sincere, in other words, you were sarcastic.
I’d like to hear how you reconcile your distaste of sarcasm with the fact that you obviously, demonstratably like to use it. Unless you’re just pulling my leg here and being meta-sarcastic or something.
elected with popular vote = majority
The vote word was missing.
Yep, and it’s pretty scary if you ask me. The standard of what constitutes “hate speech” could change over time. I can certainly imagine the US evangelists arguing that gay rights activists are spewing hate speech, and demanding they be jailed.
I think the genie is out of the bottle here, as we already have “thought crime” disguised as “hate crimes”, so expect to see more groups claim that they are victims of hate.
Isn’t it just called “free speech”? The right to assemble, and the right to petition the government, rest on the right to speak freely.
So public schools aren’t the place for people to express unpopular views? Recall what this case was about — a tee-shirt criticizing gays, worn on a day that other students had set aside for a pro-gay event. Do you really want to silence one side or the other of that dispute on the basis of which is more popular?
The idea that schools aren’t the place to express unpopular views is the idea that led to the Berkeley Free Speech Movement in 1964. It’s an idea that says that administrators know better than students (college students in that instance, high school students in this one) what kind of discussions students should be having, what kind of politics students should be engaging in.
I take seriously the question Jill raised of pervasive harassment, and I do concede that if that were what were at issue here, it’d be a harder question. But there’s no real claim to that effect raised in the opinion. This was a case of a school administration censoring unpopular speech. And in this country, at this moment, that’s not a development that progressives should be cheering.
It’s almost as if you’re deliberately missing my point. Individuals in publicly-funded institutions cannot express political or religious leanings either way. To do so sends the message that the state is tacitly endorsing that message, whether it be one of tolerance OR intolerance. Please, hear me out.
For example: I’m in the Army. In uniform, I am prohibited by law from endorsing any non-military cause or political agenda, left or right-leaning. I can’t criticize Christians, Muslims, Buddhists, Hindus, Pagans, minorities, women, hetero- or homosexuals, because to do so sends the message that those views are representative of the military itself. Even on my blog, I have to enter that disclaimer. Out of uniform, however, I can do as I wish. I’m free to criticize the administration or its policies freely, and can support any cause I desire. It’s all about where I’m doing it, and on whose dime.
My point is this. According to the interpretations I’ve viewed of the Constitution, the young man in question is free to wear gay-bashing apparel any time he wants, PROVIDED that it is not on the government’s dime. In this case, being a ward of a government institution between 8-3, plus any extracurriculars, would dictate that he IS, so to speak, ON the government’s dime. They, and by extension the taxpayers, are paying for his education. So for a school to tolerate such behavior while the individual is IN their institution of learning is ethically unsound on the part of the school.
Now, can we please stop the pontificating, and return to our regularly scheduled rational discussion?
But see also Hazelwood v. Kuhlmeier 484 US 260 (1988)
This is a post Tinker case.
One limits certain things in public schools that you could not limit in other forums precisely because the students are minors. This is doubly so if the speech or activity is designed to create disorder or is not appropriate for their level of maturity. One must consider whether the speech or action is designed to disrupt or, worse, cause violence.
If you read the opinion, you’ll note that the student was wearing the shirt to protest a school-approved day of support for gay students. So this wasn’t a matter of viewpoint neutral restriction. The student’s shirt was ruled to be unprotected speech specifically because it was intolerant.
By this reasoning, public high schools and colleges couldn’t have political or religious clubs. Students couldn’t wear political pins at school, or circulate petitions, or even discuss politics on school grounds.
That’s not how it works. As Justice Abe Fortas put it in Tinker v. Des Moines, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”
Go read Tinker, Freeman. It’s the relevant precedent here, and it lays out the — really quite strict — limits on how much leeway public schools have to restrict free expression.
The issue here isn’t “hate speech” — it’s whether this student’s expression was sufficiently distracting and harmful in the educational environment. Considering that physical fights broke out over anti-gay sentiments and t-shirts on the Days of Silence at this particular school, and that the majority opinion makes it fairly clear that much of the campus was tittering over this particular t-shirt, I would say that it merits a significant distraction and caused actual harm.
I don’t agree with jailing people for speech we don’t like. Notably, this kid wasn’t punished, even though he asked to be. He was just told to remove the shirt, and when he wouldn’t, he wasn’t allowed back in class. No suspension, nothing.
I don’t agree with punishing people for hate speech, either. But this isn’t about hate speech in a public forum, it’s about speech in high schools. And I think it’s relatively clear that this is consistent with the Tinker standard.
Freeman:
This is a point that deserves a serious response.
Public school attending students are not on government payroll, like military personnel are (you did address that, but I don’t agree). Surely you admit that the discipline demanded by military is not comparable to being a high school student? Should every high school student be forced to not talk about issues of tolerance or intolerance in the school, because that is not allowed for military personnel (in the uniform)?
My answer would be a resounding “no”. One of the purposes of the education system is to immerse the students in an atmosphere with many views presented, both “good” and “bad” ones. It is not a place to institute military discipline on the students, and only allowing completely neutral views with government stamp of approval.
It’s not good for learning, it’s not good for fostering a critical, open, scientific mindset, and it would be hard to enforce in full.
For military, the system works, and military personnel are expected to uphold it and not go solo. What works there is not what works in education (mostly at least). The effectiveness of military relies partly on secrecy (for security reasons), chain of command and strict discipline.
Yes, it is partly that.
Brooklynite,
*Nods* I’ll go read Tinker. But as for your point about collegiate religious clubs, I still think that there is a distinct difference. Universities are run and structured differently from public secondary schools. Most of the petition goes on outside of the classroom. Were one to be permitted pass out those pins or petitions IN the classroom setting, as someone above said “to create disorder,” the professor or even the university itself could be found liable. Example: student-run Student Finance Committee at my alma mater denies funding for Gay-rights, Pagan and Native American fellowship groups. Student Finance Committee and the University are immediately sued. Court finds against defendants. Of course, that’s what happens when half your part of the state is literally OWNED by the local Ojibwa reservation., but given some effort and the right legal archives, I’m sure one could easily find some more notable precedent there.
All comes down to the government’s dime.
Jill, I’m interested in knowing how you respond to the arguments Kosinski makes in his dissent. Beyond that…
…a year earlier.
And the testimony presented stops short of claiming that the shirts — which at any rate were different shirts bearing different messages than the one at issue here — were the cause of the “altercations” in question, or even that the students wearing the shirts were involved in the altercations, whose seriousness is not made clear.
You don’t really want to say that a high school principal can ban any clothing that induces tittering in a substantial portion of the student body, do you? So much for girls wearing tuxes to the prom, if so, and so much for the “Campus Queen” lunchbox I used to carry.
And reading the opinion again, I don’t see much evidence for the claim that “much of the campus” was disrupted. One teacher saw “several students” in Harper’s class talking about the shirt, and when Harper was brought to the principal’s office, he claimed — and remember that he was trying to get suspended — that he’d been “confronted” by a group of students with whom he had “a tense verbal conversation.” That’s it.
What was the harm, exactly? Am I missing something?
Again, I don’t mean to sound dismissive. I can imagine a situation in which anti-gay messages on shirts were part of a larger pattern of behavior that created an unsustainably disruptive situation. But I don’t see such a pattern here.
I actually kind of hate the “creating a disturbance” standard. In a lot of places, homophobic t-shirts wouldn’t create any disturbance and would be considered fine by almost everyone, but a gay-pride t-shirt would get you pounded to a pulp. I think the solution to that is to make it clear that violence won’t be tolerated, rather than to tell gay kids that it’s their responsibility to remain closeted so they don’t get beat up.
Of course, I’m in favor of school uniforms, so I’m out of the mainstream on this one.
Well, yeah. That’s a question of money.
I don’t know the case you’re referring to, but in others that I’m familiar with, the issue has turned on the nature of the student association. If the student association’s budget is ultimately controlled by the college, or if the money in question includes government funds, then the student association is, for the court’s purposes, a governmental entity.
And that’s an extremely important distinction. In one case, you’ve got a private citizen engaging in political speech on government property. In another, you’ve got individuals acting as agents of the government itself, disbursing government funds.
The rules are different in the two cases, and they should be.
What if the shirt had said “Christianity is shameful?”
As a public school teacher I’d put the gay-bashing t-shirt in the same category as a crop top with “Daddy’s Girl” written on it in sequins or jeans that show the asscrack; unacceptable – go to the office and change. Our school code prohibits inappropriate clothes and disrespectful behavior or speech and kids agree to this code when they enroll.
And if the shirt said, “Christianity is shameful” the kid would sent to the office to change.
Sniper, what if the shirt said “Friends Don’t Let Friends Vote Republican”?
Yup. Controversy-prohibitions always seem to come down on the side of the mainstream. Gay-themed anything has also been the victim of the “too sexual” double standard.
I’m extremely uncomfortable with this precedent, especially given the reasoning Freeman is using. What about a student who wants to participate in the National Day of Silence, or wear a t-shirt to commemorate the Transgender Day of Remembrance, or to celebrate National Coming-Out Day? What if the tshirts explicitly condemned homophobic views as shameful and horrible, or blamed them for gaybashing and murder? Do homophobic students have the same right to complain about that?
[...] arper Tyler was trying to incite something that wasn’t in the curriculum. (See also Jill at Feministe.) Here’s some more context tha [...]
Sniper, what if the shirt said “Friends Don’t Let Friends Vote Republican”?
Sigh. If only that was a problem.. but yes, office to change.
I agree with Piny that this isn’t a good precedent to have, and I can’t say I agree with the court’s ruling, as much as I think the kid’s a total asshole.
The fact that the kid involved here asked twice to be suspended betrays the lie behind this entire case. A couple of right-wing legal foundations – most notably the Rutherford Institute and the Alliance Defense Fund – are behind these suits.
This is not about free speech. This is all about forcing theocratic fundamentalist “Christian” views into public school classrooms. The Rutherford folks recently lost a case here in South Jersey, wherein a mom sent her seven year old into school with a book about Jesus for a read-aloud day, knowing that it might cause a stink, just so she could bring a lawsuit. Guess who supplied her with lawyers? In Downington, PA, just today, a lawsuit just like the one in CA was brought by some high school students who also want the “right” to wear t-shirts with anti-gay slogans on them. They had lawyers ready to bring suit.
These folks can’t wait to run their yaps about “activist judges,” but they are more than willing to use the courts to “Christianize” the public schools. Funny. I doubt very much they’d support my particular (Quaker) version of Christianity. If I go into class on Monday and start popping off about how Jesus taught us to love our neighbors and not kill them in illegal, immoral wars, that the Decider-In-Chief is a war criminal, will they defend me when someone complains?
The Hate Speech Ruling Crits Were Waiting For
The 9th Circuit has just issued a 2-1 decision in Harper v. Poway Unified School District. The majority opinion (linked above) was by Stephen Reinhardt, Judge Alex Kozinski dissented here.
First, the facts. Stephen Harper is a student at Poway Uni…