April 21, 2006

"Be Ashamed, Our School Embraced What God Has Condemned/Homosexuality is Shameful."

Those are words on the front and back of a T-shirt, worn to school by a student reacting to the school's Gay-Straight Alliance events. At Volokh Conspiracy, there is a vivid discussion of the Ninth Circuit's decision upholding the district judge's denial of a preliminary injunction to the student, after the school's principal required him to remove the shirt. (PDF.) I don't have the time right now to read the decision, but I wanted to give readers a chance to talk about this very interesting free speech problem.

The majority is concerned about what it calls "speech that intrudes upon the rights of other students." Judge Kozinski, dissenting, cares about that too:
I ... have sympathy for defendants’ position that students in school are a captive audience and should not be forced to endure speech that they find offensive and demeaning. There is surely something to the notion that a Jewish student might not be able to devote his full attention to school activities if the fellow in the seat next to him is wearing a t-shirt with the message “Hitler Had the Right Idea” in front and “Let’s Finish the Job!” on the back. This t-shirt may well interfere with the educational experience even if the two students never come to blows or
even have words about it.
How different is that hypothetical shirt from the one the principal banned? Did the principal disapprove of the shirt because it was disruptive or because it contradicted the school's official message?

126 comments:

Dave said...

Not for nothing is Mein Kampf in well stocked libraries. There is a larger principle of free speech here, no?

Those who claim god condemns gays are idiots and bigots, but being an idiot or bigot is not sufficient reason to squelch speech. If it were sufficient reason, Michael Moore and Jesse Jackson would be jailed.

Timothy K. Morris said...

I've been forced to the conclusion that the 9th Circuit does this sort of thing _knowing_ they will almost certainly be reversed. I'm not sure why.

"[B]ut if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free [*655] thought -- not free thought for those who agree with us but freedom for the thought that we hate."

United States v. Schwimmer, 279 U.S. 644, 654-655 (1929)(Holmes, J. dissenting).

gj said...

Schools have a long history of enforcing a variety of dress codes, including disallowing t-shirts that contain obscenities and other offensive messages as they feel necessary to maintain good order.

Whether the school banned this particular t-shirt because they felt it was necessary to maintain good order, or simply because they didn't like the message, seems like a finding of fact, not a constitutional issue. That should be in the details of the case.

David said...

The bumper sticker I would like to see: "My idiot child is student of the month because he/she had fairly good attendance" or "My idiot child is an honor student at ____ middle school because he/she showed up for school more often than not!"

The bottom line is that most public schools are doing a fine job of graduating semi-literate students who know what their victim status is but are wildly unstudied in the classics.

Reading, writing, arithmetic! It never occurred to me that Jack and Jill were:
a. cross dressers
b. gay/lesbian
c. having sex at the top of the hill and not getting a pail of water;
d. both fell and came tumbling down because they were high on their parents medical marijuana!

At least spell check the marquees in front of the local school instead of proudly proclaiming your illiteracy with misspelled words!

Fatmouse said...

From a technical standpoint, this ruling bugs me because it kills any expressing on one side of the issue without effecting the other.

Pretty much any shirt promoting the Yay Gay side would be allowed, but I can't think of a single Boo Gay slogan that would be acceptable. Even "I personally don't approve of homosexuality" on a shirt could be perceived as offensive.

BrianOfAtlanta said...

Judge Kozinski has a point that his hypothetical shirt would be disruptive, but part of that comes from the hypothetical shirt's direct threat to Jews. A better example aimed at the Jews would be "Be Ashamed, Our School Embraces The Ones Who Crucified Jesus/Judaism is Shameful". Still offensive, but not directly threatening.

I think the bar for free speech should be set higher in a high school than on a college campus, but I'm not sure if it should be this high. That said, high schools have traditionally had great powers to regulate school clothing. I don't agree with the principal here, but what the he did isn't unusual or beyond his authority.

SippicanCottage said...
This comment has been removed by the author.
HaloJonesFan said...

gj: That's a very good point, and it's one that this coverage really should focus on (although of course it won't, because it's more fun to reflexively bash Christians for being intolerant.)

It's pretty well established, by practics, that grade-school students do not have the same degree of Constitutional rights as an adult. This is entirely correct, in my opinion--students don't have these rights because they do not have the mental capacity to accept the concomitant responsibilities.

Yes, I know that you know a teenager who is, like, totally smart and stuff. Except, really, you don't. You know a kid who is clever, and that's a completely different thing from being smart. (For example, a smart person probably wouldn't have worn a T-shirt like that in the first place, and we wouldn't even be having this conversation.)

J said...

Volokh's argument is that the decision ignores the disruptive speech principle and instead creates, in his words, "a constitutionally recognized right to be free from certain kinds of offensive viewpoints". Evidently the school never claimed the speech (T-shirt) was disruptive - just offensive. Assuming that's true, I have to agree with him that this is just ridiculous and will probably be overruled. Has anybody ever proposed, say, a three strikes law for judges who repeatedly generate crazy opinions that waste circuit/SCOTUS time?

I agree with your opinion that given the captive audience nature of a school, speech restrictions are OK - on employees of the school. Speech restrictions on students can only be applied to disruptive speech. As to your difference question, do you really believe that saying someone's behavior is shameful is the same as saying someone's race should be exterminated.

Maxine Weiss said...

It's like the burning cross thing. That's how you measure disruption-----you can't NOT look at a burning cross. It's burning.

This T-Shirt, in a learning environment.....makes it hard NOT to look at it.

It's the ignore-ability of the situation.

I can ignore an offensive T-Shirt out in the Mall, or in the Park, or wherever. I just walk away.

In the classroom, you can't just walk away....so it then becomes a disturbance---rises to the level of a burning cross.

Peace, Maxine

Wade_Garrett said...

Dave -- I see your point, but I don't really think that's the issue here. The issue is that 1) children are forced to go to school, 2) have to stay in school once they're there, and 3) don't always have remedies available, such as switching to a different class or being able to use additional speech to counter their speech. This is quite different from a library stocking Mein Kamph, where patrons can simply choose not to read it. One of the best arguments against prayer in schools (other than First Amendment grounds) is similar -- as long as students are required by law to be there, its not fair to make these students uncomfortable, and essentially force them to take sides in the debate. One reason prayer in schools is bad is that kids have their ass kicked after school for refusing to stand for the prayer during homeroom. They can't leave, and they can't counter it with MORE speech, as in a Jewish prayer or what have you. That is the whole problem.

I don't mind that the Ninth Circuit is often reversed, because they're willing to be creative. As long as they don't go directly against precedent, I don't have a problem with one of the circuits reading more rights into the Constitution than the other circuits, as a sort of test balloon. We wouldn't have so many different circuits if absolute uniformity was required.

Synova said...

The comments at Volokh's are interesting.

One pointed out that the "homosexuality is shameful" t-shirt was worn to school in direct response to an event, sponsored by the school, that was all about the *opposite* message. So we've got the school endorsing one side and a student providing a dissenting voice.

The comments about how this depends on minority status made a lot of sense, too. Would a shirt message that was intimidating and offensive to Christians be allowed because Christians aren't considered minorities?

Heh, and someone asked... is it a national minority or a minority within the school? Would the conservative Christian student be the one who's speech is protected in SF or Berekley while the student who was pro-gay have his speech suppressed?

CB said...

"Did the principal disapprove of the shirt because it was disruptive or because it contradicted the school's official message?"

Clearly the latter: "a T-shirt, worn to school by a student reacting to the school's Gay-Straight Alliance events."

I was not able to read the opinion (Adobe problems), so I don't know what the technicalities (e.g., the specific pleadings, the standard of review, etc.) are, but this seems to be a restriction that is not only not content-neutral, but not even viewpoint-neutral. Regardless of which side I happen to agree with, I am troubled by the fact that students can put on an event advocating one side of an issue, but not wear a T-shirt advocating the other.
Also, I am not a Christian, but to call them idiots and bigots because they believe the teachings of the Bible is, well, idiotic and bigoted.

Joseph Hovsep said...

I skimmed the opinion and dissent, but I admit I don't know a lot about First Amendment jurisprudence and I don't know if I even really agree with the cases cited. But independent of Constitutional precedents, my inclination is to allow this kind of speech, particularly where, as in this case, it appears that the school has allowed organized speech in support of gay rights. If the school allows one side of a controversial issue to speak, I think its hard to justify preventing opponents from expressing their disapproval even if their expression is phrased in an offensive manner.

On the other hand, although both kinds of speech are provocative, I don't think the "I support tolerance and equality for gays and lesbians" and "gays and lesbians are shameful sinners according to my interpretation of the Bible" are necessarily comparable. For example, in this context it seems to me the gay rights protesters should definitely have been allowed to use more affirmative speech like "marriage = one man + one woman." Alternatively, if the school allowed the gay rights supporters to don shirts that read "Conservative Christians are shameful bigots" then the school should definitely allow the "homos are sinners" kind of speech. But one of the reasons I tend to support broad freedom of speech, even in a captive public school, is because these distinctions are almost impossible to make.

I think the kind of outright threats of violence that Kozinski uses as an example are legitimately banned in this context. But mere expression of disapproval of others' religion or sexual orientation is different. First, it is impossible for a gay high school kid to be unaware that there are people around him or her that disapprove so banning these shirts is not really achieving much in the way of preventing intimidation. Second, I would guess in the typical California high school today, the administration as well as the popular kids whose approval is most often sought are vocally supportive of gay rights, so I think there's a good argument that its the anti-gay kids whose speech is more entitled to Constitutional protection. Third, even if the anti-gay speakers hold the relative power in the student body, they will intimidate the gay kids much more effectively, and regardless of anything the administration does, in ways other than wearing an anti-gay tshirt.

Palladian said...

What does "minority" mean, anyway? Are things such as this ruling or affirmative action based on actual minority status within a defined population or is "minority" in fact a code word for something else?

I have the answer to this whole dispute: privatize schools.

If that's not acceptable, I have another idea for government schools: uniforms.

PatCA said...

It seems the T-shirt was in response to an official event endorsing acceptance of gays, so if sex is being talked about anyway, it should have been permitted. File this under "unintended consequences" to the push to politicize children and education. It is fine to teach children to be kind to everyone even those who look or act different but that should be the extent of it.

One of our legislators, for instance, now has a bill up that would mandate the teaching of gay history. Won't that open the door to teaching about straight history and its benefits and achievements, how promiscuity spreads AIDS, etc.? If the anti-side is to be suppressed, then education is indoctrination.

Bill Requiring Gay History be Taught

CB said...

I have the answer to this whole dispute: privatize schools.

I'm afraid it wouldn't be that simple. There would still be the public function and entanglement exceptions, and if government education were eliminated or delegated, the jurisprudence in this area would be in upheaval for a while.

If that's not acceptable, I have another idea for government schools: uniforms.

An excellent idea. It would solve not only this problem, but many others as well: trashy or skimpy clothing, gang uniforms, pressure on students to wear fashionable or expensive clothing when they cannot afford it, etc.

Simon said...

The point is being missed, I think, by comments like (among others) Maxine Weiss, BrianOfAtlanta or Halojones fan (at least, insofar as I understand their comments to focus on what the shirt said and whether or not the school could ban a shirt bearing that message. Rather, I think fatmouse has it about right; the problem isn't that the school banned this guy from wearing a t-shirt that took a side in a political debate, it was that they banned one side of that debate from expressing their viewpoint, while permitting the other side to express theirs.

This is not only precisely what the Supreme Court has said a government entity cannot do (see RAV v. St. Paul, 505 U.S. 377) (1992) ("[an entity bound by the first amendment] has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensbury Rules"), it is the very definition of viewpoint discrimination; the school is taking sides, enthusiastically joined by Judge Reinhard. I think that the school could absolutely ban that student from wearing that t-shirt, but in order to gag political speech for overwhelming practical expediency - a proposition that, IIRC, Tinker does not foreclose - they must gag both sides. This case is not even close; it is not a question of the degree to which one side was gagged (that is, both sides were gagged and are arguing over whether they were so equally), but that one side was given free rein and material assistance where the other was not.

That this should be my reaction will not surprise most; I know that many conservatives reflexively condemn anything the Ninth Circus hands down where Kozinski isn't in tha majority; I am not one of those. I defended another Reinhardt effort, Fields v. Palmdale School District, back in November (see The other side of the knife, 11/4/05), and three months ago, concluded that another Reinhardt-penned opinion, in Planned Parenthood v. Gonzales, got to the right result, albeit by the wrong reasoning (see Ninth Circuit strikes down Federal Partial Birth Abortion Ban, 1/31/06). But in this case, the result cannot be squared against good sense, the first amendment, or precedent, as Kozinski's dissent eloquently explains.

You really have to wonder what percentage of clearly wrong cases written by a given Judge have to be reversed before you start to wonder whether that Judge can really be said to be displaying "good behaviour".

Smilin' Jack said...

Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school.

I'm pretty sure this fundamentalist kid represents the religious minority at his school, and that he found that pro-gay-rights event offensive on religious grounds...that's why he responded with the T-shirt. So on the Ninth's reasoning, why shouldn't he sue the school for subjecting him to that pro-gay event?

TWM said...

Several people here have said it better than I can, but it boils down to this. If the school is going to promote an agenda then it seems to me that the student has a right to express a contrary view. The school doesn't want gays offended but doesn't mind offending those who, for religious reasons, are against that lifestyle.

The best way to stop this is to cut out all this social engineering and political agenda nonsense and concentrate on the three Rs.

dave said...

the student wasn't subjected to the event, it simply took place at the school. if the chess club holds a meeting and I don't like chess, I'm not beling discriminated against.

as far as I can tell, the school isn't specifically sponsoring some sort of assembly; GSAs are clubs within a school. the student was expressing shame at an extracurricular activity. it'x not a school agenda

if the shirt said 'chess' and not 'homosexuality'... well this metaphor's getting weird but i think it works


so, I'm with the dissent - students should be free to express an opinion, and the school's message (pro-chess or otherwise) shouldn't come in to play. is it disruptive? in schools, all political speech is disruptive. but what's wrong with a little healthy debate? (or for that matter, closed-minded partisan namecalling?)

- dave m.
(not the same dave as above, though we basically agree)

jinnmabe said...

A few of the commenters at Volokh seem to take the position that in a pro- and anti- debate about homosexuality, the pro- side is "complementing" gays and the anti- side "insulting" them. And, since complements are ok in school, but insults are not, the ruling is correct. In other words, you have the freedom to say anything you want, as long as it is what WE want you to say. The opinion does not rely on the disruption facet of the speech, just the offensive-ness of it (in this case, it is SO offensive it rises to the level of an "assault").

vbspurs said...

Judge Kozinski has a point that his hypothetical shirt would be disruptive, but part of that comes from the hypothetical shirt's direct threat to Jews. A better example aimed at the Jews would be "Be Ashamed, Our School Embraces The Ones Who Crucified Jesus/Judaism is Shameful". Still offensive, but not directly threatening.

An excellent "catch", brianofatlanta.

I have never heard this argument rebutted this way, because as halo said, the media would never frame it logically like this.

I have questions:

Presumably this t-shirt does not qualify under "Hate Laws" restrictions?

Where you are breeding or instigating an atmosphere of hatred for a given (usually minority) group.

Also, let me ask this question:

Where else BUT in a closed, controlled environment like a school, would a t-shirt like this NOT incite backlash?

If this student wore it outside, say to a mall, I guarantee you he'd create more disruptive commentary...

...than at a school where familiarity breeds contempt, but also ennui after a while.

I understand a mall is a private space, but surely, wherever the public concentrate, and a raucus is caused, there is reason to call the police for disrupting the peace, if the patron doesn't leave or take off the t-shirt.

P.S.: I once saw this happen in a mall down here in South Florida. The guy wore a black tee with "Bush*t/F*ck Bush" written on it, without the asterisks.

He refused to leave, and though he believed it was because of the "fascist police" (I quote), in reality, it was because of the vulgarity of the t-shirt. Duh.

Cheers,
Victoria

SteveR said...

I with those who say that regardless of our point of view if you overtly promote one side of a controversial issue, the expression of an oppossing opinion should not be supressed. It was an opinion, not a threat and the comparison to Hitler really doesn't work here.

In any event I am tired of folks claiming the moral high ground and being offended at the first sign of opposition. Don't claim you're right, don't claim your superior, don't call others bigots, racists, idiots, etc. and then call yourself tolerant.

I had a student that got sent home for wearing a T-Shirt that said "Funkin Donuts" I thought it was hilarious myself.

We agree to disagree, lets go have a cup of coffee and talk about AmIdol and TomKat.

The Drill SGT said...

The last 3 commenter's stole all my best stuff :)

I would like to make some poorer points however.

1. This entirely predictable event and cause of action. The school district
a. The school allowed a pro-gay event and political theater in 2003. (with Tee shirts)
b. in response, heteros-students organized a counter demonstration that was suppressed by the school. (with Tee shirts)
c. in 2004 the same pro-gay group wanted another pro-gay event to counter the tensions created by their own actions.
d. surprise? counter tee shorts appeared and were again suppressed by the same school admin, resulting in the lawsuit.

2. I think the issue here was government viewpoint censorship, not individual free speech.

3. I don't think that folks have a right to be free of being offended.

CB said...

How different is that hypothetical shirt from the one the principal banned?

Now that I think about it, maybe not very different--note the etymology of the word "faggot."

tjl said...

Most of you are underestimating the disruptive potential of the T-shirt. Students who disapprove of GSA events are free to ignore them, but it's hard to ignore the T-shirt and its message. Imagine you are some skinny gay kid and seated next to you in algebra class is some homophobic thug with this T-shirt. Can you focus on your equations, or are you going to be worrying about the chance that the T-shirt guy is going to beat you up after school?
Practical expediency seems to require that the gay student's interest in a non-threatening school environment trumps the anti-gay student's interest in free speech.

Wade_Garrett said...

At some level, I think this boils down to the question of, should schools teach their students HOW to think, or WHAT to think?

I believe that, if a student is intolerant of others, the school administration can be intolerant of them. Schools are supposed to be places of learning and the free exchange of ideas, and wearing clothing that says that somebody is automatically wrong simply because of who they are goes against what schools STAND for. The school isn't promoting gay marriage or increased funding for AIDS research, its just saying that gays are a part of the community. That's really not taking a side for or against anything.

The Drill SGT said...

well, they were the last 3 commenters when I started. I was talking about simon, twm, and smiling jack.

Dave,

the 2004 event wasn't described, but the 2003 event was and it WAS not an afternoon club event that did not impede education and others. It was argurably distruptive of class learned and allowed by the school

On the “Day of Silence,” participating students wore duct tape over theirmouths to symbolize the silencing effect ofintolerance upon gays and lesbians;these students would not speak in class except through a designated representative.Some students wore black T-shirts that said “National Day of Silence” and contained a purple square with a yellow equal sign in the middle. The Gay-
Straight Alliance, with the permission of the School, also put up several posters promoting awareness of harassment on the basis of sexual orientation.

Smilin' Jack said...

dave said...
the student wasn't subjected to the event, it simply took place at the school.


The event involved pro-gay-rights t-shirts and posters in the common areas of the school. Since the student is legally required to attend school, he was indeed subjected to the event.

Suppose instead of wearing the shirt the student had made such comments orally, say during a class discussion. Could such speech be prohibited?

Simon said...

Terry said...
"At some level, I think this boils down to the question of, should schools teach their students HOW to think, or WHAT to think?"

Needless to say, you want them to do the latter. Apropos:

"I believe that, if a student is intolerant of others, the school administration can be intolerant of them. Schools are supposed to be places of learning and the free exchange of ideas, and wearing clothing that says that somebody is automatically wrong simply because of who they are goes against what schools STAND for."
Which is convenient, because that means that the only speech which would be censored is speech that - by staggering coincidence - you happen to disagree with. Well played, sir! You get to get your own way, protecting your own set of assumptions, while still thiking you occupy the moral high ground! Played!

"The school [is] just saying that gays are a part of the community. That's really not taking a side for or against anything."

No, it's saying that homosexuality is a valid lifestyle, and that IS taking a side. That it happens to be taking a side that you and I agree with is irrelevant; what matters is that there is a continuing political debate about homosexuality and its acceptability/impact on society and the school picked a side.

Ron said...
This comment has been removed by a blog administrator.
Ron said...

It means that as soon as Adolf Hitler makes an appearance in any string of commentary, all rational discourse is over, and it's all throwing food from here on in.

...which was the first ending of Dr. Strangelove, before Stanley really learned to love the bomb!

Can we pass out the "9th Circuit judgies are a pack o' Gay Nazi Asshats" shirts? What's that? Oh, I guess not, they'll take offense!

Jennifer said...

Imagine you are some skinny gay kid and seated next to you in algebra class is some homophobic thug with this T-shirt. Can you focus on your equations, or are you going to be worrying about the chance that the T-shirt guy is going to beat you up after school?

tjl: Your own stereotypes are showing through, here. Opposing homosexuality does not automatically make a person a violent thug.

Frankly I'm surprised at how far the principal let the other side go. Wearing duct tape over their mouths and speaking through designated representatives in class? That seems a lot harder to ignore than a t-shirt.

Richard Dolan said...

"How different is that hypothetical shirt from the one the principal banned? Did the principal disapprove of the shirt because it was disruptive or because it contradicted the school's official message?"

1. To your first question, it's not different in any significant way, except that the hypothetical shirt is not presenting a message in response to some other, contrary viewpoint being promoted (directly or indirectly) by school authorities. I agree with Sippican's comment that the "Hitler" counterexample offered by Kozinski's dissent does more to confuse the issue than illuminate it. However offensive pro-Nazi sentiments may be to Jewish (and, frankly, almost all) students, the only threat of disruption posed by such a T-shirt slogan comes from the reactions of those who disagree with it. There is no heckler's veto, even with respect to objectionable points of view. The reality is that such a T-shirt slogan does not threaten anyone, and from any objective perspective, is intended entirely to be provocative and attention-getting for its own sake. In that sense, it's classic juvenile conduct -- hardly unusual conduct from a teenager. But that's far removed from the sort of immediate threat that might support the suppression of speech, even offensively silly speech by a juvenile.

There is a distinction between such a slogan in the "captive audience" school context, and the pro-Nazi marchs that have occurred in Skokie and elsewhere and have been found to merit First Amendment protection. But the "captive audience" point isn't enough by itself to justify this viewpoint suppression. The classic remedy for offensive speech is more speech, not suppression. Before any suppression can be justified, the proponent must first show that the "more speech" remedy is wholly inadequate. No such showing is possible, either with the hypothetical pro-Nazi T-shirt or the far more tame slogan at issue in the Harper case.

The second possible distinction is that, because of the "captive audience" nature of a school and the juvenile conduct often found in such places, suppression of speech that might provoke a strong response is warranted in this situation even if it would be unacceptable in others. Kozinski notes that existing Supreme Court case law draws that line (he suggests that the line may well be due for reconsideration by SCOTUS), and permits suppression of in-school speech by applying a disruption/vulgarity test. In neither the "Hitler" hypothetical nor the facts in the record in Harper, was there any suggestion of actual disruption, leaving only a fear of likely disruption as a ground to justify suppression. Before a fear of "disruption" can be invoked as a grounds to suppress speech, however, there must be some showing that the "more speech" remedy, if applied by the school authorities, isn't sufficient to ward off any potential disruption. Such an approach is more than sufficient to deal with the pro-Nazi slogan --any teacher who can't use such a slogan as a "teaching moment" to get the kids themselves to demolish that slogan isn't worth much. The same can be said for the anti-gay slogan on Harper's T-shirt. If the school wants to get into the "gay culture" issue, it's got to accept the fact that discussion of both sides -- including the religious viewpoint that may be behind Harper's slogan -- is going to follow. That's a trickier kind of discussion, but it's inevitable once the school permits Day of Silence type protests, as it did here.

2. As to your second question, there is nothing in the record to show that Harper's T-shirt rseulted in any actual disruption of anything. So it's just a question of whether the principal reasonably believed that this slogan, unless suppressed, presented a reasonable likelihood of disruption. Again, there's nothing in the record that would reasonably support any such belief.

There seems to be something about high schools that makes the adults running them have just as bad judgment as the juveniles and adolescents who attend them. Taranto's "Best of the Web" column, and particularly his entiries on the inane decisions school administrators often adopt pursuant to "zero tolerance" or "anti-harassment" policies, provides a rich source of such anecdotes. Those anecdotes underscore the larger point that school authorities have a hard time distinguishing between messages that present a real risk of "disruption" -- very few indeed do so -- and messages that are merely offensive to some, or otherwise contradict reigning notions of politeness or political correctness. That Harper's T-shirt here was responding to a Day of Silence event that the school was effectively, if not formally, sponsoring, is all the more reason to be highly skeptical of the school's demand that the speech be suppressed.

3. While the T-shirt got all of the press, the really interesting point in the case deals with the school's "harassment" policy. As Kozinski quotes and describes it, that policy prohibits speech by students, whether in school or elsewhere, that is deemed "derogatory" by others. Whether the "others" whose feelings matter include anyone else, or just members of certain preferred racial or other groups is a bit vague. That is an issue that FIRE often battles and has had success with. Kozinski predicts that, when the case is finally tried, Harper will win on both counts. Unless the facts at trial are quite different from the evidence on the preliminary injunction motion, I agree with Kozinski that the student should prevail on both counts -- his T-shirt was protected First Amendment speech, and the harassment code is absurdly overinclusive.

Mary said...

Reminds me a bit of the kid wanting to use the bathroom, then going in the wastecan. The winner is in the footnotes.

The dissent cites Saved by the Bell, Buffy the Vampire Slayer and "zillions" like it.

The majority footnotes a piece of related history at this particular school -- a lost lawsuit -- influencing the school officials' request the boy find another way than the "shameful" shirt to spread his message that he believed his religious views were being offended:


6 We note that conflicts over homosexuality at Poway High School have not been limited to the incidents surrounding a “Day of Silence.” Two former students
recently won a suit against the School for failing to protect them from students who harassed them because they are gay. See Dana Littlefield, Two Gay Students Were
Harassed, Jury Finds, San Diego Union-Trib., June 9, 2005, at B2. During the trial, one of the students testified that Poway “students repeatedly called him names, shoved him in the hallways, threw food at him and spit on him,” and “that he heard other students make disparaging remarks about gays and lesbians on a nearly daily basis.”
----
Sounds to me like the school officials were practicing CYA.

They tried to accomodate the boy's belief that his religious views were offended, and encourage other ways to demonstrate these views without labeling others' lawful behavior or personal characteristics as "shameful". Escalation is a concern for those running the school everyday. The boy was on the second day of wearing the shirt; he twice requested suspension.

Joseph Hovsep said...

No, it's saying that homosexuality is a valid lifestyle, and that IS taking a side. That it happens to be taking a side that you and I agree with is irrelevant; what matters is that there is a continuing political debate about homosexuality and its acceptability/impact on society and the school picked a side.

I believe the kid should have been able to wear the anti-gay shirt but I take issue with this characterization of the dispute to the extent it may be saying that schools shouldn't take sides on issues like this.

I think schools have a moral obligation to take sides on certain issues, particularly when it comes to contemporary and relevant controversies, the ignorance of which cause problems for students and their educational environment. Tolerance and understanding of sexual orientation (not pro-SSM or even acceptance, just open, tolerant inclusion) is one such issue. The schools should also support tolerance of people of different races, religions, etc.

Its true that the school is taking sides when it promotes human equality of any kind and if it allows or encourages kids to wear equal rights/equal protection tshirts, it should also let kids wear anti-black and anti-Jew tshirts and anti-gay tshirts. But I don't think the answer to this dispute is to say schools should not address gay issues or take a "we neither promote nor discourage discrimination or intimidation on the basis of sexual orientation" approach.

Thorley Winston said...

I understand a mall is a private space, but surely, wherever the public concentrate, and a raucus is caused, there is reason to call the police for disrupting the peace, if the patron doesn't leave or take off the t-shirt.

It’s debatable whether that would be true in California (where this case occurred) as their State constitution actually protects freedom of expression in shopping malls and has been .

Thorley Winston said...

Frankly I'm surprised at how far the principal let the other side go. Wearing duct tape over their mouths and speaking through designated representatives in class? That seems a lot harder to ignore than a t-shirt.

Not to mention actually being disruptive to the learning process which is a valid reason for a school to prohibit a particular form of expression by a student.

jeff said...

Obviously the Gay/Lesbian/Dogs&CatsLivingtogehter thing is insulting/offensive to some. Shouldn't it likewise be banned under the same justifications?

Simon said...

Joe:
"I take issue with this characterization of the dispute to the extent it may be saying that schools shouldn't take sides on issues like this. I think schools have a moral obligation to take sides on certain issues, particularly when it comes to contemporary and relevant controversies, the ignorance of which cause problems for students and their educational environment."

Kindly name a contemporary controversy comparable to this one, one in which you believe that schools have a moral obligation to take sides on, where you believe that schools should take a side other than yours.

I won't hold my breath.

You entire attitude is summed up by your characterization of views such as those expressed by this kid as "ignorance". You have picked sides, and you can't imagine how anyone could pick another side, and therefore the only way to rsolve this cognative dissonance is for you to presume that the reason people do not agree with you is because they're "ignorant" - that is, they are uneducated, unaware, or uninformed, and if they were educated, aware and informed, they would take your side.

This whole business reminds me of a conversation I had on Prawfsblawg last month, where Prof. Leib averred that it is the job of educators to challenge students; "to make students uncomfortable with their normative assumptions". I dissented on that point, because - while I will take Ethan's and Gowri's assurances as being accurate in their experience, I cannot shake the feeling that while most educators would share Ethan's proclivity to challenge normative assumptions on the part of their students, what that normally means, I suspect, is to challenge normative assumptions with which the teaching staff's prevalent political viewpoint disagrees. I just cannot imagine a scenario where a teacher challenges the normative assumption of a group of gay students that homosexuality is a valid lifestyle choice. Just can't imagine it. I can't imagine a situation where a geology lecturer sits down and hosts a serious attempt to challenge the normative assumption that creationism is wrong. It's simply inconceivable.

Thorley Winston said...

Obviously the Gay/Lesbian/Dogs&CatsLivingtogehter thing is insulting/offensive to some. Shouldn't it likewise be banned under the same justifications?

No because as the court made clear in its opinion, there are two sets of rules depending on whether you are a member of a designated oppressed minority group (see footnote 28) and this new “protection” is limited to members of whatever it determines to be a minority group:

“Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 21. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority.”

vbspurs said...

well, they were the last 3 commenters when I started. I was talking about simon, twm, and smiling jack.

Well, now I'm depressed. I was part of those three, when you posted it.

Cheers,
Victoria

downtownlad said...

I wonder how people would react if a student came in wearing a T-shirt saying "The Virgin Mary is a liar who just got knocked up" or "Jesus is a hateful bigot".

Of course these T-shirts are disruptive. Why is that even being debated? But surely there is a way to get around this problem without violating the first Amendment.

Have uniforms. Or have a dress code that says T-shirts cannot contain ANY messages. Seems pretty simple to me.

But the people who wear these T-shirts, I'm sorry, they have psychological problems. Zero class and zero social skills.

Sigivald said...

ACtually, Sippican, Godwin's Law merely states "As an online discussion grows longer, the probability of a comparison involving Nazis or Hitler approaches one."

There's a tradition (as the article says) that that loses the argument for the invoker, but that can't apply in this case, since Hitler is a relevant example in the First Amendment context.

(Just as mentioning Hitler in a discussion of Fascism or World War 2 cannot end the discussion or automatically lose the argument for the mentioner... the tradition of argument-losing is meant to prevent the invocation of Hitler as an emotional dismissal of the opponent, ala "Hitler was a vegetarian too!"; irrelevant use of Hitler is the problem.)

Simon said...

Someone check the temperature in hell. Downtownlad and I are in agreement: "surely there is a way to get around this problem without violating the first Amendment . . . Have uniforms. Or have a dress code that says T-shirts cannot contain ANY messages. Seems pretty simple to me."

Agree 100%. I'm generally in favor of school uniforms (or at least, a shirt-and-tie stipulation for men and functional equivalent for women) in any event.

downtownlad said...

I'll just add that Kozynski should be on the Supreme Court.

Ah - but we'll have to wait for a President John McCain for something like that to ever happen.

vbspurs said...

The schools should also support tolerance of people of different races, religions, etc.

When people mention tolerance, they usually mean acceptance.

The problem lies in the fact this student is "forced" to tolerate what he finds unaccepable.

When he dissents, he is sanctioned, whilst the other side (through school sanctioned events, as Drill Sgt mentioned) is encouraged.

Almost all the cultural debates we have at the moment, feature this point.

Take away the specifics, and you are left with this:

That ignoring the other side's argument is down to what each specific community finds acceptable, but there is an overriding political correctness which trumps everything today.

E.G.:

If there were suddenly real soft-core porn allowed on network TV, those who approve would say everything from: it doesn't demean women, you don't need to watch it, and you can ignore it by switching channels.

But if suddenly a network decided to programme an-all pro-Christian (as an example) lineup, that's somehow not acceptable, and you can't change the channel and ignore it.

Both are impositions into the private realm by private companies, but one would likely be championed by one group, over the objections of the other, based on their ideas of "tolerance".

P.S.: I once caught a cold in Madrid, and stayed watching TV in my hotel room all day. Soft-core porn at noon? Si se puede!

Cheers,
Victoria

Joseph Hovsep said...

Kindly name a contemporary controversy comparable to this one, one in which you believe that schools have a moral obligation to take sides on, where you believe that schools should take a side other than yours. I won't hold my breath.

I don't think there is a good "contemporary comparable controversy." It might be girls' equal access to athletic opportunities or students' use of drugs or engaging in sex. They are issues that are critical to students' lives whether we want them to be or not and I think schools have a duty to address those issues. In some cases, ignoring these issues can cause far greater harm than dealing with them and taking a stand.

You entire attitude is summed up by your characterization of views such as those expressed by this kid as "ignorance".

When I refered to "ignorance" of a controversy I meant it in the sense of "ignoring" or "not addressing" a controversy. For example, I think schools also have an obligation to offer serious education with respect to use of recreational drugs and sex because students' ignorance of these issues can lead to problems in their personal lives and in the educational environment. Likewise, not addressing an issue like getting along respectfully with gay classmates can cause bigger problems if students think it is acceptable to be disrespectful on the basis.

downtownlad said...

I'm a Libertarian Simon.

We probably agree more often than you realize.

CB said...

“Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 21. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority.”

That's really going to annoy a lot of Christians, who like to think of themselves as a persecuted minority.

Simon & Downtownload,
Agreed on the uniforms--I note some other advantages upthread. If a public school district were to mandate them, could any legit legal challenges be made? I can't think of any, but you never know what someone will come up with.

Orestes said...

"I think schools have a moral obligation to take sides on certain issues, particularly when it comes to contemporary and relevant controversies, the ignorance of which cause problems for students and their educational environment."

This is precisely backwards, essentially for the reasons Simon gives: it privileges the viewpoints of certain government employees -- those who are doing the educating -- in matters that are, by definition, unsettled. Whatever happened to the mantra that schools should teach students HOW to think, not WHAT to think. While I think that's cliched and often misguided as a matter of pedagogical theory, if it applies anywhere, it must apply to matters of current controversy.

The University of Chicago's Kalven Report on the role of the university in contemporary social and political disputes is instructive, and I think applies equally in this particular context to high schools:

"Since the university is a community only for these limited and distinctive purposes, it is a community which cannot take collective action on the issues of the day without endangering the conditions for its existence and effectiveness. There is no mechanism by which it can reach a collective position without inhibiting that full freedom of dissent on which it thrives. It cannot insist that all of its members favor a given view of social policy; if it takes collective action, therefore, it does so at the price of censuring any minority who do not agree with the view adopted. In brief, it is a community which cannot resort to majority vote to reach positions on public issues."

Freeman Hunt said...

This is a great argument for school uniforms.

When there is a debate between two sides, as there obviously is on this issue at this school, you can't give one side carte blanche while telling the other side to shut up.

You can, however, tell all of them to shut up and get back to doing some actual schoolwork.

I'm with all the others who have said privatize schools and/or impose school uniforms. If the issue must be discussed in school, make them actually discuss it instead of snarking at each other with theatrics and t-shirts.

SippicanCottage said...
This comment has been removed by the author.
downtownlad said...

Teaching tolerance is NOT the same as choosing a side.

Why are Christians so offended when a school says it's wrong to bully gay people? Do they really think that Jesus (assuming he had actually existed) would be beating up gay people in schools and calling them names?

Who on this thread has not witnessed a student being called a "fag" when they went to school? Who has not witnessed the gay kid getting beaten up? It happens in every single high school in this country.

Schools should also teach students to be tolerant of those of other religions, including Evangelical Christians.

But the last time I checked - I can't recall someone being beaten up for being an Evangelical Christian. And I can't recall the last time an atheist went beserk because a school told him to be tolerant of those with different religious beliefs.

Who's really being intolerant here?

Joseph Hovsep said...

it privileges the viewpoints of certain government employees -- those who are doing the educating -- in matters that are, by definition, unsettled.

First, I support giving kids a lot of leeway in expressing their views. I support Kozinski here.

Second, I'm not arguing that schools should be promoting sex or drugs or homosexuality. I'm saying that they should be educating kids about these topics to the extent necessary to protect students and promote a healthy educational environment. I'm talking about teaching tolerance and respect for fellow students to prevent bullying and harassment of gay kids and religious kids alike. Ignoring issues like this does more harm than good in my opinion.

The issue is not whether schools should teach that homosexuality is good or sinful. The issue is whether schools should promote tolerance and acknowledge the existence of gay kids or pretend there is no harassment of gay kids and refuse to address the issue at all (which is the case in most schools).

When I was in high school in the early 1990s, I remember our health teacher saying at the beginning of the sex ed section that we should be honest and respectful but we were not allowed to talk about homosexuality or abortion. Period. Personally, I think that's a lost opportunity for health educational exchange about issues that matter to kids and issues that some kids will have to face before they get any kind of other education on the topics.

Marghlar said...

I was going to post something more substantive, but I think Simon has pretty fairly laid out how I view this situation. The problem is the viewpoint discrimination -- if the school wanted to avoid having disruption in the classroom, they have to find a way to do it that regulates place/time/manner, not just squelching one side of a debate.

downtownlad said...

Imagine if the schools made these tolerance discussions two-sided?

"Some people think that it's wrong to beat up and bully students because they are gay. Other people think that gay students are getting what they deserve because they are engaging in a sinful behavior and deserve to get their asses kicked in. We'll let you, the students, decide what's right."

That is what the Christians are essentially advocating for, isn't it?

By trying to silence the schools from saying that bullying against gays is wrong, aren't they in essence advocating it?

Marghlar said...

DTL: I think the school can properly prohibit, and strongly enforce, violence and threatening language against gay students. But does tolerance necessarily mean agreeing with others lifestyle choices?

Ultimately, a lot of public debate is about trying to convince other people that what they do or think is wrong. That's part and parcel of political speech. And the core of the First Amendment is that the government can't take sides by suppressing only messages it disagrees with, absent threats of violence or trampeling on certain common law interests (like defamation, etc.).

I agree with you wholeheartedly that people who choose to communicate their viewpoints in the manner that this student engaged in are small-minded bigots who have no claim to my tolerance or respect. What they do have a claim to are the same first amendment rights that I enjoy.

Freeman Hunt said...
This comment has been removed by a blog administrator.
Freeman Hunt said...

Who has not witnessed the gay kid getting beaten up?
I haven't. There were openly gay people at my high school ten years ago, and I was in Arkansas.

I had lots of gay friends in high school and college. Not one of them was ever beaten up.

I'm not saying that there is no hostility anywhere, but I do think the "if you're gay, people will attack you" meme is overstated.

Thorley Winston said...

That is what the Christians are essentially advocating for, isn't it?

By trying to silence the schools from saying that bullying against gays is wrong, aren't they in essence advocating it?


Right, because as we all know there is no difference between saying that someone’s behavior is shameful and saying that they ought to be physically assaulted for it.

Simon said...

downtownlad said...
I'll just add that Kozynski should be on the Supreme Court. Ah - but we'll have to wait for a President John McCain for something like that to ever happen.

I agree - but sadly, Alex will never be on the Supreme Court. He deserves to be, to be sure, he would be marvellous there, and had Bush 41 been re-elected, there is no doubt in my mind that he would be on the Court today. But he is a white, european male, and while I think the following is contemptible, I think political expediency forecloses the possibility of a Republican president appointing another white, european male to the Supreme Court for the next few vacancies. Fortunately, there are several candidates who would be excellent candidates even without this diversity criteria; Karen Williams is often mentioned, as is Emilio Garza, and my crush on a Justiceship for Judge Sykes is well-documented in comments passim.

Simon said...

I should say, incidentally, regarding Alex: not only would he make a superlative Justice, but on a personal note, I think that he gives great hope to all of us who suffer under the weight of a funny accent and European teeth, hope that we can make it in American legal circles if we work hard and can make good arguments.

downtownlad said...

Marghlar,

When did I ever say that students don't have first amendment rights. I agree that if a school is going to limit speech, it has to do so across the board.

But there is nothing wrong with a school from teaching that it's wrong to bully people for being gay (or being "perceived" as gay - which is often the case). And there's nothing wrong with a school from teaching that homosexuality is a completely natural and is a normal condition that occurs across many species. That happens to be the scientific viewpoint. The "sinful" discussion is appropriate for Sunday school, not a classroom, since it's based on religion, not science and not facts. A school should not be teaching about whether homosexuality is moral or immoral. But it does exist - and they can teach about if they want to.

And those who proclaim that they have never seen any bullying against those perceived to be gay - are obviously not looking. "Fag" is one of the most commonly used derogatory terms in school.

Freeman - the taunting doesn't necessarilly take place in high school. I'd reckon it's way more common in elementary and middle school, before kids even realize they're gay.

And trust me. If this T-shirt is allowed, I guarantee you that students will start wearing T-shirts that say "Jesus is a moron". I doubt Christians would tolerate that.

Hey said...

The main thing that so many of my fellow secularists don't realise is that tolerance != acceptance. It is deeply inappropriate, unfriendly, and illiberal to demand acceptance. It is simply good manners (and a desperately good idea for civil peace) to extend tolerance to most social and nearly all religious matters (thank you 16th, 17th, 18th, and 19th centuries for your many counterexamples!).

For very many religious people, they can simply not accept homosexuality, in the same manner that a religious Jew can not accept Jesus, a Christian can not accept Muhammad, that none of the above can accept Buddha, the Vedas, or any of the Sikh Gurus. And how secularists can not accept any of the above. What we ca all do, however, to create a productive, stable, and peaceful society is to tolerate the obvious idiocy (choose for yourself which of these is the obvious idiocy) of our fellows.

As to the merits of the case: wrongly decided, contradicts so much precedent that the contradicted casefiles may weigh a ton or two, and is mostly simply setting up an entertaining opportunity for Scalia to eviscerate the respondents and their lawyers. This is a model for a TRO case, as the plaintiff has so many volumes of USSC precedent on his side.

I'd like to echo the call for consistency of reversals and judicial error to lead to removal for bad behaviour.

Simon said...

Joe,
"I don't think there is a good "contemporary comparable controversy." It might be girls' equal access to athletic opportunities or students' use of drugs or engaging in sex."

So are you saying that you're opposed to girls' equal access to athletic opportunities, or that you think schoools have a moral obligation to oppose girls' equal access to athletic opportunities? Surely you mean one or the other, since I asked for an example of a controversy on which you think the school is morally obligated to pick sides where you think they're obligated to pick a side that you disagree with.

downtownlad said...

Thorley - I never said they were equivalent. So please don't put words in my mouth.

Gays ARE beaten up in school. Let's not pretend otherwise. It is perfectly proper for a school to tell children that it's wrong to beat up people, just because they think that person is gay.

Evangelical Christians have a right to believe that homosexuality is immoral. We should be tolerant of their beliefs. But I don't think a T-shirt in school is the proper place to state those beliefs, therefore ALL messages on T-shirts should be forbidden (including those advocating FOR homosexuality). That will allow a proper environment for learning.

The Drill SGT said...

Victoria,

My apologies dear. For the record, I nearly always agree with your posts, and always enjoy your style.

You are civil, contributing and entertaining. A rare three-fer

The Drill SGT said...

downtownlad,

I'm not a practicing Christian, nor strongly anti-gay, but as I understand their position on gays, prostitutes and money lenders (Jesus examples here), the operative phrase is:

Hate the sin, love the sinner.

AJ Lynch said...

Ann:
I come here for relaxation and enjoyment. And sometimes your questions are too much like a test or work. Not a complaint just my take on this.

SippicanCottage said...
This comment has been removed by the author.
josil said...

as i understand it, the school was sponsoring an LGBT day, to which the T-shirters were demonstrating disapproval. now, could the T-shirters have brought the school officials to court for distressing their education by sponsoring the event?

CB said...

But there is nothing wrong with a school teaching that it's wrong to bully people for being gay.

Whoa, I think you just changed the subject there--and also presented a straw man argumet. This case is about speech, and has nothing to do with physical violence. Besides, for every gay student that's been picked on, a thousand skinny little nerds (myself included, years ago) have been picked on and bullied.

BTW, sorry for calling you "downtownload" upthread; I swear it was a typo!

SippicanCottage said...
This comment has been removed by the author.
Thorley Winston said...

Thorley - I never said they were equivalent. So please don't put words in my mouth.
At 1:29 PM, April 21, 2006 DTL wrote:
“"Some people think that it's wrong to beat up and bully students because they are gay. Other people think that gay students are getting what they deserve because they are engaging in a sinful behavior and deserve to get their asses kicked in. We'll let you, the students, decide what's right."

That is what the Christians are essentially advocating for, isn't it?

By trying to silence the schools from saying that bullying against gays is wrong, aren't they in essence advocating it?”

Simon said...

"there is nothing wrong with a school from teaching that it's wrong to bully people for being gay (or being "perceived" as gay - which is often the case). And there's nothing wrong with a school from teaching that homosexuality is a completely natural and [] normal condition"

You here breezily conjoin two very different propositions, perhaps hoping that the universal agreeability of the first will lend its aura to the second. I don't think anybody disagrees with the proposition that schools should teach children that physical violence is deprecated, and that the correct way to resolve interpersonal and political disagreemets is through reasonable and calm political discourse (although obviously there is a reasonable concern that this can be a prelude to subtle anti-war indoctrination). But the latter proposition - teaching that homosexuality is perfectly normal and natural - is taking sides. There are a great number of people in this country who simply don't agree with that. Who the hell are we to say that our viewpoint is right? It is appropriate for schools, perhaps, to acknowledge that there is a controversy, and perhaps to outline both sides of it, but not to pick sides, explicitly or impliedly.



"Gays ARE beaten up in school. Let's not pretend otherwise."

Well, yes, that's true, to some extent. But a more accurate rendering is that kids are beaten up in school. They are beaten up for many excuses: because they're a nerd, because they are part of the wrong crowd, because their parents are x, y or z, because of their hair/clothes/manner, because of the color of their skin, and yes, because they're gay. Notice I said "excuses" not "reasons"; the problem is bullying, not homophobia; bullies will find an excuse, any excuse. The victim being gay may be the excuse of the week, or something else may be. Next week it might be different. The reason some many, many kids get picked on at school is because a great number of children are vicious, mean and vindictive having yet to learn social graces and interpersonal skills, and they like to assert power over others, particularly when those others can be marginalized into predefined groups.

Harkonnendog said...

This doesn't bother me because they are kids.

If they were adults I'd think it was a free speech issue. Seems to me you err on the side of freedom, always. Not freedom from, but freedom to...

tjl said...

Thorley, CB:

"This case is about speech, and has nothing to do with physical violence."

You are not considering how speech can have an impact far more threatening than its explicit content. The T-shirt doesn't send the message, "I condemn you but I respect your right to be left in peace." The perceived message is likely to be, "I condemn you and you don't want to run into me after school if you know what's good for you."

SteveR said...

DTL:" It is perfectly proper for a school to tell children that it's wrong to beat up people, just because they think that person is gay."

As some one who got picked on for no reason that I could identify, lets be clear: It is perfectly proper for a school to tell children that it's wrong to beat up people, *for any reason.* I couldn't care less why some one beats some one up, its wrong and I would consider anyone beating me up to be commiting a hate crime, and I don't fit into any protected category.

Victoria: DrillSgt did the same thing to me

Ann Althouse said...

AJ Lynch said..."I come here for relaxation and enjoyment. And sometimes your questions are too much like a test or work. Not a complaint just my take on this."

Yes, but isn't it interesting how many people go right ahead and take the test?

Drethelin said...

I fail to see the justification. The fact that a shirt offends or even frightens someone is and always will be the problem of the offendee. There are an infinite amount of disruptive influences at school and beyond, and learning to deal with them is pretty important. If you can't concentrate on schoolwork when someone is wearing a SHIRT, how can you concentrate on something more important?

Even if you embrace the idea that someone has the right not to be offended, why doesn't that right extend to the guy who dislikes homosexuals? Maybe the policy should be against men holding hands in his sight.

If someone wants the right to make displays that offend someone else, they need to extend that right to the person being offended. If you can't take it don't dish it out. Even if you morally object to what his display represents, you have no right to censor it, because that is exactly the same grounds on which he objects to you and your actions.

CB said...

AJ Lynch, Professor Althouse:

It sure beats doing real work.

Joan said...

When my 5-year-old smacks his older brother, I always tell him that if he were an adult he could be arrested and charged with assault. It's against the law to beat people up, period.

The t-shirt wasn't advocating a position on the bullying of homosexuals, it was stating an opinion on homosexuality. I don't think that "so beating up gays is OK" automatically follows from "Homosexuality is shameful."

And I'm so, so glad that my kids' (public, charter) school has a strict dress code.

downtownlad said...

Schools are allowed to acknowledge that gays exist.

The Constitution does not require them to recognize the archaic Christian beliefs on this subject.

Just as schools have every right to teach about evolution, i.e. the teaching of reason and science, and to ignore "intelligent design", which is in no way science, and is in everyway religion.

The Bible teaches a lot of stupid things. That the world was created in 6 days. That the earth is 5000 years old. That some dude rose from the dead. That you should marry your sister-in-law if your brother days. That being gay is bad.

Whatever. Believe it all you want. But there is no logical reason for schools to teach that homosexuality is wrong.

What's next? Schools shouldn't be able to teach that women might scream in pain when they're giving birth, because some Scientologists might get upset? That is essentially what you're saying.

Schools teach that we should tolerate all sorts of people. People of other races. People of other religions. People with disabilities. And a few brave ones teach that we should tolerate those of other sexual orientations as well.

Is it really that hard to respect the views of those you disagree with? For some Christians, I guess it is.

Thorley Winston said...

The Bible teaches a lot of stupid things.

And this is precisely the part where people quit reading your rant and moved on to the next post.

downtownlad said...

Thorley - Just because I tolerate Christianity (which I do), doesn't mean I have to accept it (which I don't).

You won't find me whining when a school teaches that we should tolerate people of all religions.

Ann Althouse said...

CB said...AJ Lynch, Professor Althouse: "It sure beats doing real work."

Voluntariness makes all the difference.

Simon said...

"Schools are allowed to acknowledge that gays exist . . . But there is no logical reason for schools to teach that homosexuality is wrong."

Again with the conjoining two different propositions. Homosexuality exists and has existed throughout human history. So have any number of things, some of which various societies have embraced, some of which various societies have merely tolerated, and some of which various societies have actively fought or rejected. At this time in America, there are a number of people who think that homosexuality (or, more specifically, homosexual conduct) is wrong (I think you do yourself a disservice, by the way, to act on the assumption that such disapprobation must always be religiously inspired, let alone inspired by one particular religion). How those tensions will be resolved, and to what extent society will tolerate or accomodate such activities is a continuing political debate, even if you or I might think that's pretty retarded. It always seemed to me that being opposed to gays was as pointless as being opposed to the weather. But people are, and it is a controversy, and while you're right that schools should teach that it exists, and if hard facts ever appear proving that it is genetic rather than a choice, they should present that, but they should not be taking sides as to whether or not it should be accepted. That is a decision to be made by individuals.

"What's next? Schools shouldn't be able to teach that women might scream in pain when they're giving birth, because some Scientologists might get upset? . . . Is it really that hard to respect the views of those you disagree with?"

Let's agree to disagree so we can go make fun of the scientologists together. F*cking nutjobs that they are. ;)

downtownlad said...

I tolerate Scientologists, but I don't accept them.

But hey - I could be wrong. You never know!

downtownlad said...

And I would NEVER go to school wearing a T-shirt that made fun of Scientologists, if my school happened to have a forum that said I should respect them.

People need to chill out.

Kev said...

HaloJonesFan said:
"(For example, a smart person probably wouldn't have worn a T-shirt like that in the first place, and we wouldn't even be having this conversation.)"

So you're saying someone is only "smart" if they quietly "tow the company line" instead of making a statement about a current event with which he/she disagrees?

downtownlad said:
"Why are Christians so offended when a school says it's wrong to bully gay people? Do they really think that Jesus (assuming he had actually existed) would be beating up gay people in schools and calling them names?"

No, he wouldn't have beaten them up, but he may well have said the same thing to them that he said to the prostitute who just barely escaped being a stoning victim: "Go now, and sin no more."

Also from downtownlad:
"And I can't recall the last time an atheist went beserk because a school told him to be tolerant of those with different religious beliefs."

Umm...Michael Newdow, anyone?

(Verification word: muskz. An edgy new cologne for the gamer/anime generation.)

CB said...

The Bible teaches a lot of stupid things.

How dare you suggest that it's stupid to teach that if a man rapes a virgin, he is to pay her father 50 shekels (Deuteronomy 22:28) or that if a man beats his slave to death, he is not to be punished, because the loss of his property is punishment enough. (Exodus 21:20-21)

Marghlar said...

DTL: I'd agree with you that the school can properly promote tolerance -- through teaching and advocacy. What it can't do is supress student speech on a one-sided basis. In this case, the school crossed that line. I don't think the t-shirt was so overtly threatening that it necessarily implies violence. And to the degree that it was, I think that can be controlled by strong anti-bullying policies.

Basically, I think the First Amendment permits schools to choose between banning all slogans on clothing, or permitting messages such as these. What it can't do is cherry pick which messages it finds offensive (in a viewpoint discriminatory way) and censor only those messages.

SippicanCottage said...
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hygate said...

Who on this thread has not witnessed a student being called a "fag" when they went to school? Who has not witnessed the gay kid getting beaten up? It happens in every single high school in this country.

Which is an argument for better discipline in schools. The gay awareness events (tape over students’ mouths, designated speakers for the students in classrooms) seem to go well beyond discouraging violent behavior. What's wrong with holding an assembly and telling the students that if you get caught bullying anybody for any reason we are going to kick you the hell out of this school. (I know, because then the school gets sued because somebody’s little monster is kicked out.)

But the last time I checked - I can't recall someone being beaten up for being an Evangelical Christian.

Which tells me that you didn't go to the school I attended. Evangelicals in public school are usually in the minority. Therefore, kids being the way they are, they are often targeted for harassment.

CB said...

Hey, when you Algonquin Rountable Bibilical Scholars are through, why don't you just cut words out of it, paste them on a ransom note, and say, "See, the Bible teaches kidnapping too."

Wha?

AJ Lynch said...

Ann said...see how many are taking the test.

That's because Ann attracts a very competitive and informed amalgamation of visitors.

SippicanCottage said...
This comment has been removed by the author.
Pogo said...

I am continually amazed how repeatedly coerced conformity is demanded by "libertarians" like downtownlad.

Note how well it fits into the PC cultural requirement for "free speech", in which "free" gains an Orwellian definition meaning "free of all that might be offensive and demeaning."

Revel wrote about The Totalitarian Temptation in the West. This has been a prime example.

knoxgirl said...

I subscribe to the South Park school of Free Speech which is, as far as I can tell, Anything Goes.

The more freaked out or offended you get by "speech" the more power you give it. I am aware that this sounds like some tired dictate from the Riot Grrrls or something, but at this point in history, I just think we can NOT settle for less.

Just look at bullsh*t like this particular shirt as absurdly stupid and get on with your life. If you want to worry about something, worry about Iran getting nukes. Now is not the time to limit freedom in any way.

Eli Blake said...

Hygate:

Occasionally, evangelical Christians are the targets of hate crimes but it is rare:

Here are links to 2004 FBI hate crime statistics and also to 2000 FBI hate crime statistics (a PDF file, the table comparable to the 2004 data is on page 11).

In 2004, of 9,035 hate crimes (actual 'offenses', second column of the table, as opposed to non-criminal 'incidents') tracked by the FBI, 57 were crimes committed against people because of their Catholic religion, and 43 against people because of their Protestant religion (evangelicals are traditionally classified as protestants). There were also 140 which were 'anti-other religion' which probably includes Mormons, Jehovah's witnesses and some other Christians who wouldn't be considered 'Catholic' or 'Protestant.' However, even if all 43 crimes against people or property based on their affiliation with a Protestant denomination were against evangelical Christians, and even if all 140 crimes against 'other' were against other Christian faiths, then 43 crimes against evangelical Christians and (57+43+140 = 240) crimes committed against all Christians would be respectively 43/9035 = 0.48 % and 240/9035 = 2.66% of hate crimes generally. And that again assumes that all crimes whose targets we can't determine are in fact evangelicals in the first count and Christians in the second count.

This contrasts with, for example, 1,003 offenses in which a person or property was targetted because of affiliation with the Jewish faith, 193 in which a person or proerty was targetted because of affiliation with the Muslim faith, and 1,371 crimes committed that targetted homosexual persons, organizations, or bisexuals (vs. 35 in which a person's heterosexuality was the motivation for the crime).

So, yeah, it is entirely possible that a few evangelical Christians have been targetted for crimes because of their faith, and where this happens we should in fact have zero tolerance for it, but there is an order of magnitude difference: for every crime committed against Protestants (including evangelicals) because they are Protestants, there are over 30 crimes committed against homosexuals or their organizations. Throw in the fact that there are over 100 million Protestants in America vs. probably no more than 10-15 million homosexuals, and it is immediately clear that homosexuals are hundreds of times more likely to be targetted for crime. Only the traditional targets of hate crime, blacks and Jews, are as likely to be targetted as homosexuals.

Simon said...

I wonder how the statistics that Eli just posted square against Michael Newdow's persecution complex, given that Christians were 16.57 times more frequently the victims of hate crime than were atheists last year.

Russell said...

CB: About the etymology of "faggot":

"The oft-heard statement that male homosexuals were called faggots in reference to their being burned at the stake is an etymological urban legend."

http://www.etymonline.com/index.php?term=faggot

Marghlar said...

Simon:

Hmmm...seems like a numerosity fallacy to me. If you take into account relative proportions of the population (5% v. 80% would be a rough estimate, off of Wikipedia), than you'd predict about a 1:16 ratio if both groups were targeted to an equal amount. The ratio you provided did seem cherry-picked -- you find higher rates of atheists v. Christians being targeted if you track by incident or number of offenses -- both come in under 1:16.

Also, you are making the assumption that enforcement is entirely proportionate...I don't know that it isn't, but that's an unfounded assumption.

Marghlar said...

(For the record: I think Michael Newdow's claims are pretty lame...but then, I am an agnostic who sees little point in modern extensions of the Establishment Clause...)

CB said...

Oops--thanks Russell. With all of the folk etymologies out there, my guard should have been up.

MadisonMan said...

No, he (Jesus) wouldn't have beaten them up, but he may well have said the same thing to them that he said to the prostitute who just barely escaped being a stoning victim: "Go now, and sin no more."

Well, there is plenty of opportunity in the scriptures for Jesus to discuss homosexuals, and he never does. Why is that?

Maybe there should be a T-shirt wearing of "Be Ashamed, Our School Embraced what Jesus did not condemn as shameful" -- but I guess that doesn't have enough oomph.

It seems obvious to me that all T-shirt messages should be banned, or none. The school board will want to err on the side of won't-be-sued, and should ban all. Unless the wearing of a blank T-shirt has a hidden meaning of which I am unaware.

Simon said...

"you are making the assumption that enforcement is entirely proportionate...I don't know that it isn't, but that's an unfounded assumption."

Mainly I'm just trying to make trouble. ;)


"For the record: I think Michael Newdow's claims are pretty lame...but then, I am an agnostic who sees little point in modern extensions of the Establishment Clause..."

For such a contentious topic, there does seem to be a lot of unusual harmony in this thread. We've got Downtownlad and I agreeing on school uniforms, on Alex Kozinski (and indeed, in a general sense, prospectively a general outlook); meanwhile, you and I both turn out to be agnostics who generally lean towards a similar sort of jurisprudence. And, IIRC, the same bourborn - DTL, I'll have to buy you a bottle of Maker's MArk if I'm ever in your neck of the woods, see if we can keep the off-topic links cordial. :p

37383938393839383938383 said...

c. having sex at the top of the hill and not getting a pail of water

Hmm. I thought everyone recognized that Jack and Jill used that particular errand as a pretext to ascend the hilltop, where no one else could see them.

Hans Gruber said...

The problem is not that the majority erred in their assessment of the speech as disruptive.

The problem is that the majority held that "vulnerable" and "historically oppressed" minorties have a RIGHT to be free from offensive speech; whereas those who are not among the favored groups do not have such a right. You can insult fat kids, but not gay ones. You can provoke Christians, but not Jews.

As Professor Volokh observes, those oppposing illegal immigration, voicing objections to Islam, or opposing same-sex marriage would similarly be silenced.

Hans Gruber said...

I think a lot of people tend to agree that schools should have the sort of authority to regulate what they believe to be abusive or disruptive speech.

But I think those supporting the decision would do well to understand the danger of the rationale proffered by the majority. Here are some quotes:

"The Tenth Circuit has held that the “display of the Confederate flag might . . . interfere with the rights of other students to be secure and let alone,” even though there was no indication that any student was physically accosted with the flag, aside from its general display"

"Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation, have a right to be free from such attacks while on school campuses."

"Being secure involves not only freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."

"Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn"

"Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong."

"Different circumstances require different results. We consider here only whether schools may prohibit the wearing of T-shirts on high school campuses and in high school classes that flaunt demeaning slogans, phrases or aphorisms relating to a core characteristic of particularly vulnerable students and that may cause them significant injury."

"Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation."

hygate said...

Eli - I have no doubt that homosexuals suffer from hate crimes at a much higher rate than Evangelicals. In fact I'm amazed that any hate crimes have been reported against them. I do doubt that instances of bullying them in school are ever going to be reported as a hate crime. For the record, I'm against hate crime legislation, am agnostic, and find the concept that homosexuality is inherently sinful to be absurd. I'm just pointing out that anyone who differs from the prevailing norms in a high school is in danger of bullying and therefore perhaps the answer isn't to indoctrinate the student body into accepting any one group’s differences. Instead it needs to be made clear that the school expects each student's behavior to fall within certain norms (like 'don’t violate other students' rights'), that the consequences of violating these norms are severe, and then enforcing the norms. Oh, and I can be counted in the pro school uniforms camp and like Makers Mark as well.

John said...

My father always told me that our home was not a democracy, and that extended to school, too. I find myself rejecting the idea that high school students have any first-amendment rights while at school. But even so, the shirt seems "over the line" to me in that the insult it carries would not be allowed to be spoken to another student, at least during class. "Them's fightin' words," as the old quote goes.

Also, since the shirts reference an inherent and probably unchangeable aspect of their fellow students, a proper analog might be "Dark skin is shameful", which is of course ridiculous, and would never be allowed by a reasonable school administration.

Another point: The pro-gay event at the school was a positive event, meaning that it did not oppose or discourage anything, but was instead supportive of gay students and their families. The shirts, on the other hand, had an opposition message that was directly insulting. Instead of saying "I support traditional families," or "1 man + 1 woman = marriage," or even "School is no place for gay propaganda", the shirts directed their message squarely at fellow students in a blatant attempt to degrade them.

Count me as another one in favor of uniforms, by the way.

hygate said...

Expanding on my previous comment while continuing to wander way off topic -

Does anyone think that the "pro" gay activities changed any student's attitude towards homosexuality? At best the activities demonstrated that the school would no longer tolerate harassment of gay (or perceived as gay) students. What the students who disapproved of homosexuality and had the propensity to bully others learned was that the school wouldn't put up with their behavior any longer and if they stopped bullying gays it was for that reason, not because of new found understanding. I contend that the school could have achieved the same result without taking a stance on homosexuality; thereby avoiding the first amendment issue entirely.

hygate said...

The pro-gay event at the school was a positive event, meaning that it did not oppose or discourage anything

Of course it did. It opposed and discourged anti-gay feelings. The fact that we feel that anti-gay feelings are wrong does not alter in any way the first amendment aspects of the case, at least in my non-lawyer, layman opinion.

Ann Althouse said...

hygate said..."'The pro-gay event at the school was a positive event, meaning that it did not oppose or discourage anything.' Of course it did. It opposed and discourged anti-gay feelings."

With reasoning like that, it's impossible to be positive. You think you're positive? You're forgetting that you're anti-negative! Positive is negative, being negative negative.

bearbee said...

"Have uniforms. Or have a dress code that says T-shirts cannot contain ANY messages. Seems pretty simple to me."

Nothing is ever simple.

Is wearing a billboard with a message ok? Or do you mean that NOTHING can carry a message? If so, does that mean banning Ralph Lauren logos on shirts, school jackets with writing, any belt buckles with insignias, jewelry including peace symbols and any religious objects, any notebook covers with slogans, tattoos and of course head scarves which would send a message? Is it to be a zero tolerance 'being suspended for having a nail file' type code?

Sloppy dress probably induces or at a minimum compounds sloppy behavior and sloppy thinking. Society is far too permissive in allowing kids to show up in school with unusual body piercings, low hung jeans, exposed underwear and bare midriffs. Uniforms should be considered. "G" forbid we should require an iota of discipline.

BTW the T-shirt contained the "G" word. That is probably what really freaked school authorities........

re: threatening, 'burning cross' disruptive or negative, I wonder if the following messages would pass school scrutiny:

I love God
I practice oral sex
I eat dog meat
I masturbate
Non-whites are nice

Kev said...

I think I understand what hygate means: Let's take it as a given that (whether or not you personally agree with the concept) there are people in society who sincerely believe that homosexuality is an abomination. The pro-gay rally at the school basically sent the message to these people that "your beliefs don't matter to us, but the beliefs of others do." In this case, a positive is a negative for a certain group of people, just as, say, a rally in support of the rioting Danish-cartoon protesters would be a negative for the families of those who were killed in the protests. Count me in among those who feel that the school district erred by coming down on one side in this issue.

"With reasoning like that, it's impossible to be positive. You think you're positive? You're forgetting that you're anti-negative! Positive is negative, being negative negative."

Positive is negative? So black is white, and up is down? Wasn't that supposed to happen 22 years ago? ;-)

The Drill SGT said...

Ann,

Setting aside the issue of whether the "pro-gay" event was positive or negative, it was demonstrably disruptive. It was not a simple "anti-bully" or "pro-tolerance" message. It was school supported pro-gay viewpoint promulgation.

1. The same event the previous year had caused trouble and sparked increased tensions in the school.

2. The school sanctioned political theater in class that seems disruptive of teaching in at least my mind.
On the “Day of Silence,” participating students wore duct tape over their mouths to symbolize the silencing effect of intolerance upon gays and lesbians;these students would not speak in class except through a designated representative.

The school allowed this speech because it supported the viewpoint presented. It silenced the opposing viewpoint. Two years in a row.

Would you allow an event where the message was "God hates the sin and loves the sinner. Repent!". I'm certain you would not.

I think the school admin should have not supported any of those activities on either side.

It's a swamp

hygate said...

ann althouse said:

With reasoning like that, it's impossible to be positive. You think you're positive? You're forgetting that you're anti-negative! Positive is negative, being negative negative.

I disagree. If you are speaking up for something - in this case the message seemed to be 'homosexuality is acceptable and people who persecute gays are bad’ - then it’s reasonable to assume that you have negative feelings against its obverse - the proposition that homosexuality is bad and persecuting gays is great. Being a small ell libertarian I think the government should pretty much limit itself to enforcing mutually agreed upon contracts, enforcing restrictions against fraud and force, and providing for the common defense. It should get out of the social engineering field all together. (I say small ell because I know that pure libertarianism is never going to be implemented and if it was it would be over thrown rather quickly.) In this case the school administration seems to have failed in their duty to provide a safe environment for all of its students and two of the victims called them on their failure by suing them and winning. Great for them! But I think the remedy, reeducation camp for the students so that they can learn right-thinking, was the incorrect response. The positive response from the government school should have been 'We don't care how you feel about gays; that's your business. Just don't hassle them or interfere with them or there will be negative consequences.' Of course that solution isn't perfect either, but I think it's a better one than what the school came up with. In any event, statements such as "the pro-gay events were positive and the t-shirt is negative" and similar comments seem like sophistry to me; meant to privilege one groups speech over another. Finally, the student wearing the t-shirt would assert that he is being positive, after all he is trying to save immortal souls.

Kurt said...

I could have sworn I posted a comment here last night, but I guess I forgot to hit "publish"...

Anyway, my comment was really a question concerning what sort of apparel would or would not be appropriate at school, and what sorts of messages would or wouldn't be tolerated. When I was in 7th or 8th grade (in the late 70s), I remember a heavy girl who got in trouble for wearing a shirt to school that said "itty bitty titty club," ironically calling attention to that fact that in that respect she was rather well-developed in that area. I don't have a problem with a school viewing a shirt like that as disruptive or inappropriate.

But when we move into political content, I'm sure that the boundaries are much more fluid and much more partisan. For instance, while a student wearing a pro-Hitler shirt (or even one with a picture of Hitler) would probably be told to change the shirt, I wonder what would happen to someone wearing a pro-Mao shirt or (more likely) a Che Guevara T-Shirt. I suspect that people can and do get away with wearing Che Guevara T-shirts to school. If it's ok to celebrate a murderous thug who helped one of the world's most long-lived dictators come to power (and for the sake of this argument, recall that Castro's regime has quite a history of imprisoning gays for being gay), then why is it any worse for a bigoted, homophobic student to wear a shirt saying that he thinks homosexuality is sinful? Or, if you don't want to tolerate the bigoted homophobe's shirt, then why tolerate the Che shirt, yet I'm sure most schools do.

onelmom said...

"Some people think that it's wrong to beat up and bully students because they are gay. Other people think that gay students are getting what they deserve because they are engaging in a sinful behavior and deserve to get their asses kicked in. We'll let you, the students, decide what's right."

That is what the Christians are essentially advocating for, isn't it?

No, it isn't. It really isn't.

Those of us who believe that Jesus existed, and have studied and follow his teachings, can't argue that it's okay to beat up "sinners" who deserve it.

If it was, we'd be sanctioning our own "asses [being] kicked in" on a daily basis.

Hans Gruber said...

"The pro-gay event at the school was a positive event, meaning that it did not oppose or discourage anything, but was instead supportive of gay students and their families."

Wow. You really believe that?

Hans Gruber said...

"With reasoning like that, it's impossible to be positive. You think you're positive? You're forgetting that you're anti-negative! Positive is negative, being negative negative."

It's not impossible to "positive" but it is impossible to take a stand on something without opposing some belief or opposite.

An anti-gay message could be described as a "positive" event just as well.

JimNtexas said...

Either we get school choice, or education for the poor and middle class will just end in this country, overwhelmed by impossible demands of political correctness.