Dispatches from the Creation Wars

Poway Case Gets Complicated

I’ve written before about the case of Harper v Poway Unified School District, which involves the question of whether a student has a right to wear a t-shirt that says “homosexuality is shameful.” I believe he clearly does. The case is actually going on two different levels now. Harper’s lawyers asked for a preliminary injunction in their favor and were denied; they appealed that denial and the 9th circuit upheld the lower court’s denial of the preliminary injunction. They have now filed cert with the Supreme Court on that denial and are awaiting word on whether it will be approved (and a conference is scheduled soon on whether the Court will hear it).

Now comes a big wrench in the works: the district court has now granted a motion to dismiss from the school on the grounds that Tyler Harper has now graduated and the case is thus mooted. However, the judge then decided that he would consider the case as it affected Harper’s younger sister, who is still in the same high school, and he still dismissed the case – using the precedent of the appeals court ruling upholding his denial of the injunction in the case! This strikes me as really shoddy on the part of the judge.


First, the appeals court upholding a denial of a motion for preliminary injunction does not mean that the appeals court has ruled on the merits of the case, so using it as a precedent strikes me as absurd. The standard that must be met for issuing a preliminary injunction is far higher than the standard that must be met for winning the case on the merits; many a case has seen a motion for preliminary injunction denied but still come out in favor of the plaintiff who filed the motion.

Second, the whole notion of dismissing the case on grounds of standing because the student has now graduated just points up the serious problem I’ve written about before regarding our legal system’s doctrine of standing. If the government, in this case the school, has violated a student’s rights, the student is almost inevitably going to be out of school by the time the case makes the 3 or 4 year journey to the Supreme Court; this would effectively moot every case. The same argument was made to try to avoid all court rulings on abortion, saying that every case was effectively mooted because, by the time it got to appeal, the woman had already had the baby. The argument was absurd then (and was rejected by the courts) and it is absurd here as well.

So now the plaintiffs will appeal the motion to dismiss and it will go back up. I think the Supreme Court should grant cert in the case, combine the two appeals in to one and either rule on the merits or remand it back to the district court for a full hearing on the merits of the case. If they remand, of course, then it will be appealed no matter who wins, the 9th circuit will most likely rule in favor of the school and it will go back to the Supreme Court again. But at least then there will be an evidential record established that is missing now because the case has not been heard on the merits yet.

Comments

  1. #1 TomMil
    January 26, 2007

    I’m sorry if I’m misreading this Ed, but how could SCOTUS rule on the merits if there hasn’t been a full fact finding? They aren’t in the business of making that kind of fact finding.

  2. #2 Raging Bee
    January 26, 2007

    In all honesty, I think the school was right to forbid that T-shirt from being worn, just as they would have been right to forbid a “Death to the Jews” T-shirt, or a “You suck” or “Fuck you” T-shirt. A school has the responsibility of teaching, and enforcing, basic manners on school grounds, and of preventing the creation of an atmosphere hostile to any particular group of students.

    One student wearing such a T-shirt may not be a big deal, but what about a church-orchestrated campaign to get as many students as possible to wear the same hostile message? That would be, in its effect (both desired and actual) a very effective form of bullying.

    Schools, in loco parentis, are within their rights to forbid gang colors, punish kids for shouting obscenities, and suppressing the spread of lies or statements contrary to the society’s basic values. These are (legally at least) minors who need to be educated and protected, not adults capable of making their own decisions.

  3. #3 Ed Brayton
    January 26, 2007

    Raging Bee-

    The difference between the examples you mention and this one is that all of those situations can be enforced without regard to the viewpoint being expressed. Death threats can and should be banned for anyone, and the courts have long allowed bans on profanity because they are viewpoint-neutral. But in the case of an opinion about homosexuality, generally and in this specific case as well, the schools allow (as they should) kids to form groups and express their opinions in favor of homosexuality; to then ban all expressions against it would be viewpoint discrimination, something the first amendment clearly forbids. A viewpoint neutral policy, like one banning all epithets, all expressions of wanting anyone dead, or all controversial statements on any subject, might pass constitutional muster; a policy that allows one side in an ongoing controversy to express their opinion on it but not the other clearly does not.

  4. #4 kehrsam
    January 26, 2007

    Bee: Perhaps, but those are not the facts of this case. This is one kid trying to make a statement about what he believes, and the statement on the shirt threatens nor harms anyone. No evidence has been put forward that the shirt is either a distraction or likely to cause a commotion, although the school has asserted these things.

    Absent the dismissal, I would have been shocked to see the Supremes take up an interlocutory appeal that didn’t involve a death penalty. Now they might.

  5. #5 Will
    January 26, 2007

    One student wearing such a T-shirt may not be a big deal, but what about a church-orchestrated campaign to get as many students as possible to wear the same hostile message? That would be, in its effect (both desired and actual) a very effective form of bullying.

    I’m reminded of when I was in high school in South Carolina. I was a sophomore when things here started heating up over flying the confederate flag over our state house. At our school, students who were for the flag started wearing shirts with confederate flags on them. This really got to the black students(and some white ones), and things escalated quickly. It reached the boiling point when the flag-lovers were wearing confederate shirts everyday and really starting to antagonize the black students. After threats of fighting were made, the school had to bar students from wearing shirts with the flag on them to keep everyone from freaking out. By the next year the issue had cooled down and the ban was no longer in place.

    While I support the right of people to wear and say what they want, I think its more difficult when dealing with teenagers, who are not generally very rational and are not usually expressing themselves for noble or intellectual reasons in the first place. These are children, after all.

  6. #6 Jason I.
    January 26, 2007

    So now we’re conflating death to an entire group, profanity, and an opinion about sexual orientation? Sounds fairly ridiculous to me.

  7. #7 DuWayne
    January 26, 2007

    This is why I support the schools in my district that are trying to implament a school uniform policy. Short of that, I am all for strict dress codes that do not allow students to wear any clothing that that displays any messages or pictures – regardless of potential offence.

    Whether clothing is offensive or not, it is often a distraction from the learning process. There is no reason that schools should allow students to wear anything they like. People have to wear acceptable clothing at work and in many other venues, school should be no different.

    But allowing one message, without allowing those dissagree to wear their message, is not acceptable. It would be different if they wore a shirt saying “fags must die,” or “burn, queer, burn,” or even “god hates fags and so do I” (all of which I have seen). But that is not what this shirt said.

  8. #8 Raging Bee
    January 26, 2007

    Ed: your point about viewpoint discrimination is valid. The line between “enforcing manners” and “viewpoint discrimination” is not always clear, and — as in Will’s flag-shirt case — can sometimes move. (Some people might say a ban on that “Death to the Jews” T-shirt is “viewpoint discrimination.”) But that doesn’t mean we can’t, or shouldn’t, try to make the best distinction we can. There’s valid viewpoints, and there’s bullying and intimidation; it is our responsibility to acknowledge and teach the difference.

  9. #9 Raging Bee
    January 26, 2007

    DuWayne: I’m inclined to agree on school uniforms. Kids need to learn to stand out by means of what’s IN them, not what’s ON them. Or, as MLK might have said, not by the cost of their clothes, but by the content of their character.

  10. #10 Ed Brayton
    January 26, 2007

    Raging Bee wrote:

    Ed: your point about viewpoint discrimination is valid. The line between “enforcing manners” and “viewpoint discrimination” is not always clear, and — as in Will’s flag-shirt case — can sometimes move. (Some people might say a ban on that “Death to the Jews” T-shirt is “viewpoint discrimination.”) But that doesn’t mean we can’t, or shouldn’t, try to make the best distinction we can. There’s valid viewpoints, and there’s bullying and intimidation; it is our responsibility to acknowledge and teach the difference.

    At the very least, though, we cannot have a policy that forbids one side from making the statement that homosexuality is bad while allowing the other side to make the equivalent statement that it’s just fine. Banning “death to the Jews” would be viewpoint discrimination if they allowed “death to the Christians”, but not if the school’s policy was to ban all expressions that urged death for any group.

  11. #11 Ginger Yellow
    January 26, 2007

    eath threats can and should be banned for anyone, and the courts have long allowed bans on profanity because they are viewpoint-neutral.
    I don’t see how profanity is viewpoint neutral. I think “Jesus tapdancing Christ!” is perfectly OK. A devout Christian presumably wouldn’t.

  12. #12 Brian
    January 26, 2007

    Well, what about a shirt that says “I hate n*ers” in an inner-city school? That’s not viewpoint-neutral profanity, and I’m sure that an NAACP shirt would be allowed.

  13. #13 Prup aka Jim Benton
    January 26, 2007

    I keep on reading your pieces on this case and the equivalent ones, being very sympathetic to your position — especially since it involves a position I know you hate — but being unable to agree with you. (I keep on hearing Justice Holmes’ dicta about the life of the law being experience, not logic.)

    Logically, of course your position about ‘viewpoint neutrality’ makes sense. Unfortunately, experience shows that SOME ‘expressions of opinions’ are more likely to lead to action than others. Let’s take, not “Death to the Jews” but a t-shirt reading ‘The Jews killed Christ.’ (And it IS possible to read the Bible in that way.) Or one that makes the (sadly true) statement that “This country was founded by and for whites.”
    Both of these can be looked on as ‘merely expressions of opinions.’ In fact, history (i.e., experience) has shown that they are, in reality, calls to action, violent action.

    I tell you what. You show me a history of bands of gay teenagers attacking homophobes with baseball bats and it being passed off by their parents and community as merely ‘boyish pranks’ or even being looked on as a form of ‘rite of passage’ and I will support your position one hundred percent. Hell, show me a period of a couple of years where you don’t have examples of gay-bashing, and I’ll go along with you.

    But we ain’t there yet, and until we are, I can’t accept that ‘gay is good’ and ‘gay is shameful’ are equivalent in real-life terms.

  14. #14 Ginger Yellow
    January 26, 2007

    Oops. Those first two lines should be in quotes.

  15. #15 Prup aka Jim Benton
    January 26, 2007

    I should have made it clear that my comments did NOT pertain to expressions of opinion in the world at large (I do support something like the Nazi march through Skokie, as much as it sickened me) but specifically to a situation like a school.

  16. #16 Ed Brayton
    January 26, 2007

    Brian wrote:

    Well, what about a shirt that says “I hate n*ers” in an inner-city school? That’s not viewpoint-neutral profanity, and I’m sure that an NAACP shirt would be allowed.

    Again, it can be banned under a viewpoint-neutral rule, such as the banning of all epithets, or banning all expressions of hatred toward other people. But you can’t have a rule that only bans that particular expression but not similar expressions about other groups.

  17. #17 jpaulr
    January 26, 2007

    Banning “death to the Jews” would be viewpoint discrimination if they allowed “death to the Christians”

    I don’t think this is the appropriate analogy for this case. First, we’re not dealing with death threats here, and second, it should read more along the lines of ” ‘Banning death to the Jews’ would be viewpoint discrimination if they allowed ‘Jews are great!’ ”

    So as not to conflate this issue with death threats (which should all be banned in school) a better analogy would be more along the lines of “X are Evil” vs. “X are Great” (Replace X with any group du jour). This student wore the anti-homosexual tee-shirt in response to a pro-homosexual tee. Now most places would allow the later shirt, but allowing the former could be trouble, espcial where X is a national minority group with a local majority. Is this viewpoint discrimination? Does it stop being viewpoint discrimination and start becoming disrubtive only when someone speaks up? Do you really want to tell kids that they can wear a shirt only until someone complains?

    I don’t think the lines are all that clear in this issue. Language has many different shades of meaning and one person’s disruptive is another’s “so what?”. I think uniforms are a fine idea, as long as the schools can provide them for low-income children. I do agree with Ed, however, that it shouldn’t be thrown out as moot because of the kids graduation.

  18. #18 DuWayne
    January 26, 2007

    jpaulr –

    I think uniforms are a fine idea, as long as the schools can provide them for low-income children.

    The schools in which this is being considered in Portland, already decided that if it goes through, they will be subsidized by the school system.

    The notion of switching to uniforms or a strict dress code, goes far beyond preventing this sort of thing. While that is an important factor, clothing causes a lot of other distractions. Dress codes support the notion that school is doing more than educating, to prepare kids for life.

  19. #19 Ed Brayton
    January 26, 2007

    Prup wrote:

    (I keep on hearing Justice Holmes’ dicta about the life of the law being experience, not logic.)

    With all due respect (and we’ve communicated enough to give me great respect for your views), quoting Holmes, especially making a statement like that, is not a good way to convince me of anything. Despite his immense name recognition, I consider Holmes one of the worst and least principled justices ever to grace the court, largely for absurd opinions like that. If the law is not based on logic it might as well not exist.

    Logically, of course your position about ‘viewpoint neutrality’ makes sense. Unfortunately, experience shows that SOME ‘expressions of opinions’ are more likely to lead to action than others. Let’s take, not “Death to the Jews” but a t-shirt reading ‘The Jews killed Christ.’ (And it IS possible to read the Bible in that way.) Or one that makes the (sadly true) statement that “This country was founded by and for whites.”
    Both of these can be looked on as ‘merely expressions of opinions.’ In fact, history (i.e., experience) has shown that they are, in reality, calls to action, violent action.

    The law already allows schools to censor expressions that are likely to lead to an imminent breach of the peace or to disrupt the school’s functioning smoothly, but those are very fact-specific findings. In this case, the school could not make a case for any such thing. The closest they could come was that one student reported a couple of other students discussing the issue outside of school. There was no disruption, no fighting, no interruption of the school’s activities. Thus, that exception did not apply in this case.

    I tell you what. You show me a history of bands of gay teenagers attacking homophobes with baseball bats and it being passed off by their parents and community as merely ‘boyish pranks’ or even being looked on as a form of ‘rite of passage’ and I will support your position one hundred percent. Hell, show me a period of a couple of years where you don’t have examples of gay-bashing, and I’ll go along with you.

    There is a difference between attacking homosexuals and expressing the opinion that homosexuality is wrong. The fact that there has been, and continues to be, gay bashing does not justify banning the expression of an opinion about homosexuality. It simply doesn’t. I would love nothing better than to live in a world where everyone accepted gays and no one ever told them that what they did was wrong (because, of course, I strongly believe that to be true). But I refuse to demand that the government try and create such a world through coercion.

  20. #20 jpaulr
    January 26, 2007

    I did refresh right before I posted, but Ed slipped one in there responding to the NAACP example which was similar to the “X is Evil” example. So, I have 2 questions:

    1. Where’s the language line drawn in determining hateful speech? I wouldn’t consider the word “shameful” to necessarily be hateful, but in this context I would if I was gay. I wonder wether he’s a “Hate the sin, Love the sinner” or a “Hate the sin; Hate the sinner” Christian….

    2. So the school is banning calling *only* gays “shameful,” and it’s perfectly OK to call homophobes shameful.

    There is a difference between attacking homosexuals and expressing the opinion that it’s wrong. I just don’t think that distinction is always clear or that the two activities are unrelated.

    DuWayne – Agreed. Uniforms do help with a lot of issues, but only if they’re enforced…. My significant other teaches in inner-city Baltimore. Students there are supposed to have uniforms, but the policy isn’t enforced. It can’t be – teachers could try to punish the students, but the administration just doesn’t have to tools to do anything, nor do they seem to care…

  21. #21 J.Paul
    January 26, 2007

    Correction: There should be a few question marks after the 2nd question above:
    2. So the school is banning calling *only* gays “shameful,” and it’s perfectly OK to call homophobes shameful????

    I don’t think that’s what is really happening, but it seems to be what Ed is implying when he says:

    But you can’t have a rule that only bans that particular expression but not similar expressions about other groups.

  22. #22 Tim Limbert
    January 26, 2007

    I teach in a public high school, and have always stood up for the idea that a student does not shed his/her constitutional rights at the schoolhouse door. However…

    We are talking about a situation where students are required by law to be there. They can’t just leave if they don’t like the atmosphere. And they have a right to pursue their education without being subject to harassment and hostility from their fellow students. Here in the midwest bible belt, I’ve seen families run out of town by organized harassment and intimidation taking place over long periods of time within the school setting, and individual cases are usually no more blatant than the t-shirt in question in this case.

    Sure, there’s a fine line to walk when you give school officials the right to police expression, but when there is a legitimate educational purpose involved (preventing a hostile environment) and the school makes its decisions in good faith with proper intent, they should be given slack.

  23. #23 Ed Brayton
    January 26, 2007

    Again, there is a difference between harrassment and disapproval. “I hate fags” is harrassment; “Homosexuality is shameful” is disapproval. And I don’t believe we do anyone any favors by insulating them from the disapproval of others.

  24. #24 PhysioProf
    January 26, 2007

    In relation to mootness doctrine, my vague recollection from law school is that there is an exception for cases in which the same fact pattern is likely to recur frequently in the future, albeit with different litigants. If my recollection is correct, then that exception would permit a court to hear an appeal from a case deciding a dispute between a school and a student even if the student had graduated by the time the appeal is heard.

    Or maybe I’m just making shit up.

  25. #25 Kenneth Fair
    January 26, 2007

    Ed wrote:

    However, the judge then decided that he would consider the case as it affected Harper’s younger sister, who is still in the same high school, and he still dismissed the case – using the precedent of the appeals court ruling upholding his denial of the injunction in the case! This strikes me as really shoddy on the part of the judge.

    First, the appeals court upholding a denial of a motion for preliminary injunction does not mean that the appeals court has ruled on the merits of the case, so using it as a precedent strikes me as absurd. The standard that must be met for issuing a preliminary injunction is far higher than the standard that must be met for winning the case on the merits; many a case has seen a motion for preliminary injunction denied but still come out in favor of the plaintiff who filed the motion.

    I’m afraid I have to take issue with your analysis of the procedural aspects of this case.

    Your statement above substantially misstates the law concerning preliminary injunctions. Although it is true that preliminary injunctions are denied in many cases that the plaintiffs later win, it is not true that the standard to be met for a preliminary injunction is “far higher” than the standard for winning a civil case.

    A preliminary injunction is a request by the plaintiff for the court to enjoin (i.e., prevent or require) some behavior of the defendant after the lawsuit is filed but before it can be brought to trial. To receive a preliminary injunction in federal court, the plaintiff must plead and prove four factors:

    1. An imminent, irreparable injury with no adequate remedy at law;
    2. A substantial likelihood of success on the merits of the case;
    3. That the injury to the plaintiff outweighs the harm to the defendant of granting the injunction; and
    4. That the granting of injunctive relief would not adversely affect the public interest.

    (The Ninth Circuit formulates this test differently, but it has the same ultimate components.)

    In most cases where the plaintiff is denied a preliminary injunction but goes on to win, the plaintiff was unable to show that it would suffer an irreparable injury with no adequate remedy at law. Monetary loss alone generally does not lead to an irreparable injury; an injury is irreparable if it is not accurately measurable, if it cannot be adequately compensated by damages, or if the defendant would be unable to pay. That isn’t the situation in Harper; this case contains a classic irreparable injury. (Indeed, the school conceded as much in arguing to the Ninth Circuit.)

    In Harper, the trial court denied the preliminary injunction (which the Ninth Circuit affirmed) on the ground that the lawsuit did not show a likelihood of probable success on the merits. The plaintiff does not have to show that it will ultimately prevail at trial, merely that if the plaintiff proves the facts it alleges, it has a reasonable chance of winning the case. Unlike the “irreparable injury” hurdle, the “likelihood of success” hurdle is substantially easier to clear in the context of a preliminary injunction hearing than at trial. If you can’t show “likelihood of success” in the preliminary injunction hearing, your case is unlikely to survive a summary judgment or directed verdict.

    That was the situation in Harper. The Ninth Circuit held that, even if Harper was able to prove all of his allegations, he would be unlikely to succeed on the merits because the school’s policy did not violate his First Amendment rights.

    The district court was also correct to dismiss some of the claims under the law-of-the-case doctrine. Essentially, the Ninth Circuit’s ruling said, “Assuming that the facts are X, the current state of the law requires an outcome favorable to the defendant.” This is a ruling on the law, which is binding upon the district court. The district court then applied that ruling to the facts of the case as alleged by Harper. Because the allegations had not changed, the district court correctly determined that the claims in question required dismissal on summary judgment.

    But at least then there will be an evidential record established that is missing now because the case has not been heard on the merits yet.

    There was in fact an evidentiary record. The case was dismissed on summary judgment, which means that the parties submitted evidence (in written form, such as documents, affidavits, and deposition testimony) for the court’s consideration. But the evidence is somewhat secondary here. In considering whether to grant the school district’s summary judgment motion and dismiss the plaintiff’s claims, the district court had to accept the plaintiff’s allegations as true. By granting the summary judgment motion, the district court in essence ruled that even if those allegations were true, the plaintiff could not win the case given the state of the law.

    * * *

    None of this has any bearing on whether the Ninth Circuit’s decision in the case was correct, by the way. I think the constitutional issues are not as cut-and-dried as you’d like them to be, and I think I lean slightly in favor of the Ninth Circuit’s decision, but your position (shared by Judge Kozinski) is respectable, compelling, and who knows? Perhaps even successful at the Supreme Court.

  26. #26 Kenneth Fair
    January 26, 2007

    PhysioProf: The doctrine you’re looking for is “capable of repetition, yet evading review.” Not having access to the district court briefing, I don’t know whether this principle was discussed. But I am surprised that the district court found Tyler’s case to be moot, as this would seem to be exactly the sort of situation for which the doctrine was created. (Ultimately, it had little bearing on the case’s outcome, given that his younger sister was a plaintiff in the case.)

  27. #27 PhysioProf
    January 26, 2007

    “The doctrine you’re looking for is ‘capable of repetition, yet evading review.'”

    Cool. It’s nice not to be full of shit once in a while.

  28. #28 Ed Brayton
    January 26, 2007

    Ken-

    You’re absolutely right. I was confusing the granting of a motion for preliminary injunction with the granting of a motion for summary judgment. Mea culpa. But given that the motion to dismiss was based on mootness, not on the merits, I don’t see why there would still be an evidentiary record.

  29. #29 Ed Brayton
    January 26, 2007

    Oh, wait. Because after the mootness issue, the court still ruled based on the younger sister. Never mind.

  30. #30 Prup aka Jim Benton
    January 26, 2007

    Ed: I too have the highest respect for you, but I hope you will rethink some of what you have written.
    First, to save the reputation of someone I respect more than you do, Holmes doctrine did not imply that logic had no place in the law. I believe what he is saying here is that logic is necessary but not sufficient for a legal system. (A good example of what Holmes was warning against was the recent Michigan case you discussed. For those of you who missed it
    “A Michigan law makes it a first-degree sex crime, equivalent to rape and punishable by life in prison, to engage in penetrative sex in the course of committing another felony.
    A man who traded OxyContin pills for sex was charged by the local DA with a first-degree sex crime. The distribution of the pills was a felony, so the resulting sex happened in the course of committing a felony.”

    The trial judge threw the charge out, but the Appellate court reinstated it, “because the (Michigan) Supreme Court had ruled that judges had to enforce statutes as written, without considering whether the literal language created such an obviously bad result that the legislature couldn’t reasonably be understood as having intended it.” It also pointed out (I am quoting Mark Kleiman in this entire section) that “since under Michigan law adultery is a felony, any adulterous act involving penetration could also be charged as first-degree sex crime.”

    And to go back to my main point on the Holmes quote, if you repeat it, changing ‘law’ to ‘science’ it is a truism. Almost any discarded scientific theory was (and remains) logical. The trouble is that evidence (i.e. experience) produces a fact that is, by the terms of the theory, logically impossible. (And creating a new theory, in effect, is producing a new logical structure in which the new — and the old — evidence is logically possible.)

    As for the specific case we are discussing, while Tim Limbert’s point is valid and sufficient, I want to take it further. “Opinions” don’t exist in a vacuum. A person who has an opinion acts on that in some way. I have read too many memoirs of Jews who lived — in America — through the thirties, and how they suffered from the “Jews are Christ Killers” opinion to say so blithely that “I don’t believe we do anyone any favors by insulating them from the disapproval of others.”

    Ideally, ‘the answer to speech is more speech.’ Were I a teacher and someone walked into my class with that t-shirt, rather than punishing him or sending him home to change it, I’d LIKE to call him in front of the class and force him to defend the statement on it. But if I did that, there would be a new ‘controversial’ t-shirt in the class every day, and while the lessons learned in discussing them would be valuable, they would detract from the lessons I was being paid to give the class. (This is why I accept the banning of the Phelps’ from funerals. Funerals have a purpose, and it isn’t to be a public forum. So do schools.)
    In the world at large, yes, as I said, such t-shirts could be worn. But, keeping in mind Tim’s warning, I think they can and should be banned from schools without banning pro-gay expressions.
    And a final point, switching from Holmes to a “Brandeis brief.” The rate of suicide among gay teens is incredibly high. And what causes that but ‘the disapproval of others’ that they are not protected from, and which they too frequently internalize?
    Again, it is a very fine line, and schools have to be very careful on it — and, having grown up during the McCarthy era, I watched a history teacher so traumatized that he would not express any opinion about anything — which included contradicting a student’s strongly held opinion. By the end of the year, I was literally running the class and not him, because my opinions may be right or wrong, but they are strongly held.

  31. #31 dogmeatIB
    January 26, 2007

    I’m sorry, but I disagree with Ed on this one, as I’ve said before. For me the key is, if you change “homosexuality” to any other group, African Americans, women in school/working, etc., it would be offensive. I know that the shirt said more than that (though many would argue that it wasn’t offensive) my point is simply, if you plugged a protected group into the statements, would it be allowed, I don’t believe it would.

  32. #32 AndyS
    January 26, 2007

    we cannot have a policy that forbids one side from making the statement that homosexuality is bad while allowing the other side to make the equivalent statement that it’s just fine.

    Sure we can, for the same reasons we have laws that protect people from harrassment in the workplace. The school isn’t the public square. As others have said, kids are required to be in school (we owe then a place free from harrassment) and gay kids have disproportionate rates of suicide and physical attack (evidence that they need more protection/support).

    We should try to pass the Equal Rights Amendment again, this time clearly including sexual orientation.

  33. #33 Gretchen
    January 26, 2007

    For me the key is, if you change “homosexuality” to any other group, African Americans, women in school/working, etc., it would be offensive. I know that the shirt said more than that (though many would argue that it wasn’t offensive) my point is simply, if you plugged a protected group into the statements, would it be allowed, I don’t believe it would.

    And he’s saying it shouldn’t be. Do you agree with that, or not?

  34. #34 DuWayne
    January 26, 2007

    Prup, dogmeat, AndyS –

    Why do kids need to wear anything that expresses an opinion? I am not for passing restrictions on opinons that they wish to express, outside the classroom. But why should they be allowed to wear anything that is likely to cause a distraction?

    Smart districts pass blanket bans. No one gets singled out. Everyone’s learning expierience improved.

  35. #35 Gretchen
    January 26, 2007

    Why does anyone need to wear anything that expresses an opinion?

  36. #36 DuWayne
    January 26, 2007

    Let me rephrase that, why do kids need to wear anything that expresses an opinion, in school? It has little to no value, it often detracts from the educational process and causes a lot of problems.

  37. #37 Gretchen
    January 26, 2007

    Likewise, so it does for adults. Maybe adults should wear uniforms?

  38. #38 Ed Brayton
    January 26, 2007

    While I certainly understand the concern over the high suicide rate of gay teenagers and the historical and current mistreatment of gays – subjects I write about often and obviously feel very strongly about – I do not believe that the government has the legitimate authority to protect people from the ideas of others, only their actions. Those of us who argue for gay rights are clearly split on this issue, but it surely isn’t due to lack of concern for those problems. There are many positive steps that can and should be taken to address those problems, such as the formation of GSA clubs, without taking the step of censoring free expression.

    We also have to keep in mind that it is possible for a person to be absolutely convinced that homosexuality is sinful and shameful and still treat gay people very well. I would point to my stepmother, for example, who is a born again Christian and a Biblical literalist who absolutely believes that homosexuality is an abomination. But that didn’t prevent her from caring for my uncle for years as he died of AIDS, or to help out a great deal with the establishment of a house for AIDS patients and a foundation that helped gays and lesbians for many years. To her great credit, she takes Jesus’ admonition that what you do to those in need you do to him as well as literally as she does Leviticus.

  39. #39 DuWayne
    January 27, 2007

    Gretchen –

    A lot of adults do, when they are at work. Not necessarily a uniform either, they could just be subject to a dress code – even a strict one. When I worked at a sales job, I had to wear “casual dress.” When I worked at the van and truck conversion factory, I had to wear company shirts and jeans without tears or holes. When I worked for the roofing company, I wore company shirts, hoodies, jackets and hats (though the hat was optional). For that matter, everyone who works in a school has to follow a dress code.

    I am not suggesting that kids outside school, have anyone but their parents restricting what they wear. But there is asolutely no good reason to extend that to school. Hell, every school has a dress code. In fact some, even have very strict dress codes or even uniforms.

    Damn, me not even ten years ago, would really want to kick my ass for this. To be clear, I am absolutely, 1005 behind encouraging children to express themselves. But in school, they should not be allowed the lazy, disruptive route to do so. If they want to present an idea or opinion, they should either have to say it, or in the classroom, write a paper about it – support it, debate it. But if it’s that important to them, they should have to work at it. There is no reason that my childs education, or anyone elses, should be disrupted by someone’s t-shirt.

    Believe me, I am not one who is afraid to express myself with my clothing. Sometimes to make a statement, others, like the light, long skirts, because they are unbelievably comfortable. I am perfectly comfortable going most anywhere, wearing quite outlandish outfits. I used to play gigs, as the frontman, occasionaly wearing a wrap-around skirt. I think it is great to encourage kids to be and dress, who they are. I just don’t think schools are an appropriate place for it.

    I also think that the arguments for uniforms are compelling. They level the playing field, no one is wearing better clothes than anyone else, more fashionable or risque, than anyone else. No one has to feel insecure about what their parents make them wear. No one can wear outlandish, distracting clothes or offensive opinions on their shirts.

    I will be perfectly content if the system my son is in, only adopts a strict dress code, rather than uniforms. But after hearing the arguments and the evidence from districts that have uniform policies, I am not against uniforms either. I didn’t feel that way about them before getting involved with the discussion in my son’s, soon to be, school system.

  40. #40 Richard Wein
    January 27, 2007

    [i]Again, there is a difference between harrassment and disapproval. “I hate fags” is harrassment; “Homosexuality is shameful” is disapproval.[/i]

    I disagree. “Homosexuality is shameful” could well be harassment, depending on the context. I don’t know the deatils of this case, but I wonder why the student in question chose to wear the T-shirt to school. It seems quite likely to me that his purpose was to harass homosexual students at the school, and not merely to express a general opinion.

  41. #41 dogmeatIB
    January 27, 2007

    “And he’s saying it shouldn’t be. Do you agree with that, or not?”

    Gretchen,

    Ed believes that the shirt was a protected expression of free speech, I disagree. My point was that if you changed the phrase on the shirt to state something similar about another group, minority, gender, religion, whatever, that would not have been protected speech, the school would have been completely justified in their insistence that he cover/remove the shirt.

    For example, staying with the biblical basis:

    “Women working is a sin” followed by a passage quote supporting women in a subservient role.

    “Lincoln was wrong” followed by a passage quote supporting slavery

    How about a confederate flag with a quote: “I only want what my grandaddy owned”

    DuWayne,

    I agree, personally I’m all for uniforms with maybe a Friday “spirit day” where students get to wear a school t-shirt and jeans.

  42. #42 Ed Brayton
    January 27, 2007

    Richard Wein wrote:

    I don’t know the deatils of this case, but I wonder why the student in question chose to wear the T-shirt to school. It seems quite likely to me that his purpose was to harass homosexual students at the school, and not merely to express a general opinion.

    The details are that he wore the shirt the day after the “Day of Silence”. The Day of Silence is an event that has become fairly popular around the country, where students do not talk at school for the entire day and when someone asks them something they hand them a card saying:

    Please understand my reasons for not speaking today. I am participating in the Day of Silence, a national youth movement protesting the silence faced by lesbian, gay,
    bisexual and transgender people and their allies. My deliberate silence echoes that silence, which is caused by
    harassment, prejudice, and discrimination. I believe that ending the silence is the first step toward fighting these injustices. Think about the voices you are not hearing today. What are you going to do to end the silence?

    Religious right groups have responded with what they call the Day of Truth, doing the same thing with cards and shirts and such. Now, I’m a strong supporter of the Day of Silence, as I am of the Gay/Straight Alliance clubs that have become common in schools. I think they are invaluable tools for helping gay teenagers deal with the difficulties, and they are many, of growing up in our society. But I do not believe that the government has the constitutional authority to allow one opinion to be expressed and not the opposite opinion; this is precisely what the Courts have long called viewpoint discrimination and have not allowed. It should be noted that the Day of Truth events have generally been peaceful and non-harrassing. They are careful not to target any individual student, or even to target gays in general, but rather to keep their message about the nature of homosexuality itself. I despise their position, and I certainly do understand that the expression of those opinions may well cause some distress for gay teens. However, I don’t believe that it is a legitimate basis for censorship to say that it causes others emotional distress; there is no limit to the ways someone’s expression of an opinion can cause emotional distress to another person, so once we use that as the basis for censorship there is no principled way to limit such interference. I am all for protecting everyone from the actions of others; I am opposed to protecting anyone from the thoughts or opinions of others. And that’s true even when I find the opinion being expressed appalling, as I do in this case.

    It’s interesting to note that at this particular school, the girl that heads up the Gay/Straight Alliance at the school spoke out in favor of allowing Harper to wear that shirt. I can’t find the exact quote now, but she said basically that if they want to be allowed to state their position publicly then they have to allow others the right to state theirs as well. A wise and mature position for someone so young.

  43. #43 dogmeatIB
    January 27, 2007

    Ed,

    I agree that the Christian response, “Day of Truth,” is as valid as the day of silence. My point is the condemnation element of the message. At our school the Fellowship of Christian Students wore a variety of shirts supporting the FCS, Christianity, etc., but they, as a group, opted not to wear the biblical verses or condemnations. Perfectly reasonable in my opinion.

    The “Day of Silence” shirts and supporters could talk about the very real physical harm done to the victims they represent and could condemn Christianity in the process. I would disagree with that method just as much.

  44. #44 AndyS
    January 27, 2007

    I agree with DuWayne and others that school isn’t a place where it’s appropriate to wear your opinions on your sleeve, or chest, or ass….

    I also with Ed: free speech is a connerstone of good government.

    I just think schools aren’t the same as the public square. In fact as DuWayne alluded to they are a great place to teach kids how to exchange ideas in a civil and intelligent way.

  45. #45 Richard Wein
    January 28, 2007

    Ed Brayton wrote:

    The details are that he wore the shirt the day after the “Day of Silence”…. Religious right groups have responded with what they call the Day of Truth, doing the same thing with cards and shirts and such.

    OK, in those circumstances I think it’s reasonable to say that the religious students were expressing a general opinion, rather than attempting to harrass gay students.

    However, in some other circumstances I would consider it right (ethically if not legally) for the school to ban the T-shirts.

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