I've written before about the 9th circuit case Harper v Poway Unified School District, which I think the court got wrong. The case involved a student who wore a t-shirt to school on the day after the pro-gay Day of Silence event that said "Be Ashamed, Our School Embraced What God Has Condemned" and "Homosexuality is Shameful." The school told him he had to take it off, he refused and filed suit. The district court dismissed the case and a 2-1 panel of the 9th circuit upheld that dismissal, with a flaming dissent from Judge Kozinski. The 9th circuit then denied an en banc rehearing, but they also issued a set of opinions that show how deeply divided they are on the issue.
The question of where to draw the line on student speech in a school setting is not an easy one. As always, I tend toward allowing maximum freedom. But there are statements I can imagine on a t-shirt that I would support the authority of the school to prohibit. Judge Kozinski uses the example of a t-shirt that had "Hitler Had the Right Idea" on one side and "Let's Finish the Job!" on the other. Or one that said "Hide Your Sisters - The Blacks Are Coming." But I don't think the t-shirt in this case rose to that level. Is that a hard and fast rule? I wish it was. But sometimes the law requires making difficult judgments like that.
But simply as a matter of applying precedent, I believe that Judge Kozinski's dissent was correct. The standard in Tinker, the controlling precedent, is that the school may only interfere with student speech if that speech "involves substantial disorder or invasion of the rights of others" and only if the school can show "evidence that [the ban] is necessary to avoid material and substantial interference with schoolwork or discipline." Neither is the case here.
The school could show no evidence of any material or substantial interference with the school's normal educational function. The closest they could come was one teacher indicating that a group of students was discussing the matter rather than doing their homework during his class. They further alleged that a "tense verbal discussion" took place between classes outside the school, but as Kozinski points out, the mere fact that said discussion did not escalate any further and remained just a discussion is evidence against the contention that the issue was causing substantial disorder. In fact, the school didn't even know about it until the plaintiff himself mentioned it in an affidavit.
I think it's also worth noting that Judge Reinhardt's position in this case is in conflict with other opinions he has written. In the 2002 case Lavine v Blaine School District, Reinhardt himself issued a dissenting opinion where he spoke eloquently of the need to protect student free speech even where the message is highly offensive and even aimed at a particular student:
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever.
I am, of course, a staunch advocate of equal rights for gays. And I'm an equally staunch advocate of the formation of Gay/Straight Alliance clubs in school. I think they are enormously valuable for helping gay teens handle the bigotry they face every day. Anti-gay bigotry is a vile thing; it is not, however, a crime. The answer for such expression is more speech, not restrictions on speech. I don't believe we do those students any favors by protecting them from the views of others. The best thing we can do for them is not to ban any statements that offend them, it is to stand with them in the face of such statements, and attack them not with suspensions but with reason and an unwillingness to allow such sentiments to tear them down.
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I'm not sure I agree with this Ed.
if your a gay student in that school I think that is at least as offensive and oppressive as this
I think this boils down to perspective. I don't find the second near as offensive as the first.
I don't think it's a crime to wear either as you said but the clear intent of the first is essentially to stir up emotions at the school and in that regard perhaps the school is correct in having the student remove it. I think the speech angle is different from school safety issues.
And while that apparently didn't escalate to that in this case it doesn't mean we should attempt to light matches over these issues in schools.
But I could be wrong:-)
I would find "Blacks are rapists" to be more offensive than "Gays are condemned by God", but only because the later is nonsensical gibberish to my atheistic perspective while the former is a factual claim based on a real-world crime. But to someone who's perspective includes God, I think GH's weighing would be reasonable.
As to the "Hitler Had the Right Idea. Let's Finish the Job!" one, that goes beyond offensiveness as it's essentially a death threat made against Jews (and Gypsies, and the handicapped, and, well, gays too.)
However, if you consider that God's supposed condemnation of homosexuals includes calls to stone them to death, could the student's shirt not also be viewed as a death threat?
Here's one to think about: what if the kid wore a t-shirt that simply had Biblical references on it, that is verses that condemns homosexuality?
If its ok to wear a shirt that says "Gays are condemned by God", then is it ok to wear a shirt that says "Blacks are condemned by God"?
...or how about "Be Ashamed, Our School Embraced What Hitler Has Condemned. Judaism is Shameful."
So then here's the question: where do we draw the line? How do we separate what can be forbidden from what can't? I can think of all sorts of things that are just as offensive to some people that I'm sure we would all say should be allowed. Suppose a kid wears a "no blood for oil" t-shirt in a class with someone whose father was killed in Iraq? To that student, the message might be just as offensive - whether it ought to be or not is irrelevant - as any of the above. I wish there was an easy way to draw that line. The courts have said that the school can only stop in to stop an imminent breach of the peace, essentially. But even there, doesn't that actually endorse the heckler's veto? We wouldn't accept that if someone wore a pro-gay t-shirt and someone else started a disturbance over it. That standard is actually content-neutral to the point of absurdity.
The "Let's Finish the Job" is a death threat (whether serious or not) since it is a call to action, where as the others are merely threatening by historical implications.
But what about a shirt with just Leviticus 20:13 on it:
"If a man also lie with mankind, as he lieth with a woman, both of them shall surely be put to death: they have wrought confusion; their blood shall be upon them."
That's a call to action, isn't it? (unless you weasel out by saying the "shall surely" denotes a prediction.)
Up front, let me say that I think hate speech, bigotry, death threats, whatever, are all wrong, morally wrong - or for you atheists, ethically wrong.
That having been said, I am very, very suspicious on restrictions of freedom of expression. Because I think something is wrong does not mean I think it should be illegal.
Because some expression offends us - even if in a particular situation "us" is the majority - is not good enough reason to ban it. In my opinion, you'd better have a more cogent reason to ban something than simply saying,"it's offensive."
Schools do have a special - and difficult - role to play in our society, and I am willing to give a little leeway in that respect on the side of educational order. But only a little. And only if there is good evidence that disorder would result. I don't want a heckler's veto to operate in schools any more than I want it to operate out in the public square.
If somebody wants to make an issue of hating other people, I would just as soon let them try to do it in the open air rather than while furtively hiding in a figurative black hole.
At one of our public schools here a few years back, a young fellow got kicked out of school for wearing a dress. AFAIK, he was not gay or a cross-dresser. He just wanted to "make a statement," since by his interpretation his garb was well within the school's dress code. His hem was at the correct height; he was just the wrong gender. I confess to ignorance as to the eventual disposition of the case.
At my school, where we have no dress code (well, they have to wear clothes and shoes), we have had no major issues. Some transfers come in wearing pretty outlandish outfits, hoping to cause a stir, but so many at the school have seen outlandish before that no one (staff included) say a thing. Eventually, the new kids give up the weird clothing.
AFAIK, we've had to send home only one kid, a girl whose shirt was a little too sheer for the braless option.
Personally I'm rather torn on this one myself, as I said a few weeks ago when Ed posted about it (or is it months now?). I will never understand how someone can claim to believe in a religion of love and tolerance and then spew hate ... but then while I believe in some sort of higher power, I have a hard time with the invisible man in the sky who makes sure your kid's baseball team wins.
I believe you could argue though that wearing such a shirt creates an environment of hatred. If you look at the definitions of hate speech, while there is some wiggle room, the shirt in question did fit under many people's definition of hate speech. It's more eloquent than "God hates fags," but really, isn't the sentiment the same?
Incidents like this are part of why I come down in favour of school uniforms. It just saves trouble.
I agree that this must have been a very difficult judgement. I do think the school was in the right in this instance, though. There was a past history of physical violence in this student body over matters of sexual orientation - a history which so concerned the school they had requested a police presence - asking a student wearing a provocative and inflammatory message to remove it seems only prudent.
I have a tee shirt that says "God Hates Shrimp" on the front, and cites Leviticus 11:9-12 and Deuteronomy 14:9-10. (No kidding, got it from cafepress.com).
Do you believe that if I wore it into a Red Lobster they should have the right to deny me service?
I suppose I might have went to the most authoritarian high school in the country, because people were prohibited from wearing Bob Marley t-shirts; just because he was an advocate of marijuana use.
I am not neccessarily in favor of uniforms per-say but I do support dress codes that ban clothing with any writing, logos (other than the articles manufacturer) or pictures. It clears up problems like this without targeting any individual sentiment.
I think that schools should take steps to help focus kids on education. Even many, more benign, tee-shirts are just plain distracting. And while I am, in fact, a rather gregarious dresser myself on occasion, I do not think it is really appropriate to the learning environment - except on possible "casual" days.
I just had to point out that, where I come from, this is a slogan suited to the anti-tobacco lobby :)
I used to be part of the "let them express their individuality" crowd. Then I became a teacher. It's incredible how much time is wasted on clothing issues. Clothing can be a major distraction. Clear, fairly restrictive dress codes work best.
I had a kid who wore a shirt with a pentagram on it. He was asked to remove it or turn it inside-out. He complained to me about it (knowing my soft spot for nonconformists), and I asked him how supportive his parents were and suggested he fight it. He won with the threat of a lawsuit, and now pagan shirts can join the bloody-Jesus-on-a-stick shirts in the hallway. So, a possible solution is that shirts can profess a belief but must not be too specific about it, i.e., no words attacking other groups.
School uniforms are looking better all the time.
I think this is a matter of intent rather than any actual speech. The punk's intent was the cause offense to people within a school system, which in my mind is intent to disturb the student body. If the kid has a problem with what the school did there are other venues than a t-shirt to discuss them.
I'm going to bring up something no one else has. How free are the teachers in that schol to run discussions on issues that are controversial. (I ask this because in my senior year I transferred from a truly great Catholic High School to a really bad public one. My history teacher in the puyblic school had been scared by the McCarthyites, to the point where he wouldn't express a positive opinion on anything. Of course, this meant that he wouldn't contradict a student's positive opinion either, so a group of about five of us who cared about the subject basically took over the class and ran it for ourselves, while the uninterested students hung out in the back and studied, read comic books, or tried to get themselves dates and the teacher staued VERY quiet.)
The point is that is the teacher could use the subject of the t-shirt for a full-blown, all sides discussion of the topic -- if he were allowed to by the School Board. This way reason could be used to combat hate. That would work.
But either of the other alternatives, 'take it off' or the teacher simply declaring why he thought it was wrong would have exacerbated the subject. Use the shirt to inspire the students to find out why people take both subjects, let THEM discover why their prejudices and stereotypes were wrong (Imagine discussing Caesar, J. Edgar, and Barney Frank, Mauresmo and Glenn Burke, etc), and the teacher can have an impact.
(But then, this is why I welcome, on the evolution debate, the idea of 'teaching the controversy' -- the right way.) The idea of school is not to 'tell the students what is right,' but to get them interested enough in the subject so they'll care enough to find out what is right for themselves. Without that, all they are left with -- in either discussion -- is "Teacher says this and pastor says that and Daddy says this, and which authority should I follow?" Even if they follow the right one, it's for the wrong reasons.
Sorry this was incoherent, but domestic duties got me rushing it.