The Washington Post had an editorial yesterday about student free speech and the Harper v Poway case, where the 9th circuit ruled that a school could prevent a student from wearing a t-shirt declaring that homosexuality was against God's law and shameful. I think they hit the nail pretty much on the head:
The case is hard -- pitting important First Amendment values against the ability of a public school system to create an environment in which all students feel welcome and comfortable. In our view, the court's answer presents serious problems. Identifying a better solution, however, is tricky -- and may be a task for the Supreme Court.
I would have voted with Judge Kozinski in dissent in the case, but I certainly recognize the difficulties that might cause. There is no easy solution to such situations. I'd like to see the Supreme Court take the case and offer a bright line rule that makes sense that schools can apply objectively and without regard to the content of the speech.
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This really is a no-win situation, since I agree with both sides. I think that, as a public school teacher, I would have a problem with any student's shirt claiming any of my other students were "shameful".
This, of course, brings up the reverse situation. Are we going to ban shirts that promote gay-rights? It isn't exactly the same, since it isn't directly attacking anyone, though I am sure that the anti-gay crowd would disagree.
I think Kozinski was spot on here, especially given the context of the case. In general, I think t-shirts with offensive messages should be banned, just for the distraction they cause. But here, the kid was wearing the shirt to protest the SCHOOL's activities of the day before. In other words, the protest was not about other students who may have been gay, but against a school policy. That, my friends, is political speech, and precisely what the First Amendment was designed to protect.
By the way, the whole affair is also good advertising for uniforms.
An employer can restrict speech in the workplace without any first amendment issues because every employee is there voluntarily. High school students have little choice about being where they are; the school has a monopoly and they have the least say of anyone involved. Their situation is not analogous to prisoners either, because their only crime is being young.
The school, operating under the delusion that learning is taking place, has apoplexy if their teaching-to-the-test is delayed by even a day for any reason... even by a teachable moment.
Being forced not to "distract" others while a prisoner through graduation, students are then magically supposed to be able to make constructive use of free speech afterward.
Paradoxically when schools restrict speech they give additional power to the speech that does slip through their fingers. Given the extremely little amount of knowledge the kids will acquire in their 13 years of imprisonment I find it hard to give a damn about the school's concerns.
You want a bright-line rule that can be applied regardless of the content of the speech? Easy.
"The school may not deny a constitutional right to free speech."
Being 'comfortable' isn't the purpose of school; nor is it supposed to be a guardian of political correctness. Ultimately, students will be far more comfortable in environments where they can speak out in favor of their minority beliefs/positions/ethnicities/religions/etc. freely and without consequence. If schools can stifle speech merely because it belongs to an unpopular minority, then unpopular minorities will be censured. You want children to be able to make pro-homosexual rights statements at school? They must also be permitted to make anti-homosexual rights statements. You want the minorities you agree with to be protected? You must also protect those you disagree with, even and most especially the ones you loathe.
Caledonian-
Would you apply that standard in any situation? How about if someone wore a t-shirt that said, "Hitler was right; we should finish the job"? Or "Kill the Niggers"? It's a serious question, I'm not trying to be flippant. While I obviously tend toward allowing the widest possible latitude for free expression in all situations, I can recognize the need to draw a line somewhere. The question, of course, is where. The courts have generally done this by saying that the schools can prohibit profanity on shirts because that is content-neutral, and that they can prohibit any message that threatens an imminent breach of the peace or disruption of school function. And while I think either of the two examples above would probably fit the second criteria from the courts (from the Tinker ruling), it still concerns me that this amounts to a heckler's veto.
Kids have rights; but adults, and society in general, have obligations toward kids that supercede those rights. Among those obligations are: to teach kids right from wrong; to pass on to them those values we deem good, uplifting, or conducive to good actions; to protect them from pernicious lies and manipulation; to give them the tools they need to function as responsible adults in a free society, including good manners; and to create the most just and encouraging environment possible in which they can learn what they need to know and grow to their full potential.
If a minor is seen preaching Nazism or flat-Earth-ism, or spreading falsehoods about where babies or AIDS come from, it is the duty of some adults -- parents, teachers, ministers, whoever has custody -- to shut him up, sit him down, and explain why those statements are wrong and not to be tolerated.
And in the case of T-shirts with hateful messages, when a kids wears such a statement, and the school is seen condoning it, that creates a hostile environment for those who disagree with the message. It is a form of bullying, plain and simple, and it's no more "protected speech" than a kid shouting obscenities in a teacher's face.
Schools function "in loco parentis." And if a parent can tell his/her kids what to wear, then the school should have the same authority, in accordance with the laws of the land.
Either students have free speech, or they don't. Adults are considered to have free speech, and there are really very few limitations on what can be said publically -- location and time is generally more important than content, and even those restrictions are very light.
Children have, I believe, been ruled to possess free speech rights. They are also compelled to go to school, and as such cannot freely choose time and place. The government necessarily must pay a price for that imposition.
"Kill the Niggers" is a direct threat, and as such, I wouldn't permit it. The Hitler shirt is abombinable, but that's the price one pays for freedom.
As children are forced to enter school, the government has less right to restrict their speech there, not more.
Would you object if the standards you described were applied to adults who were compelled to remain within a government facility, Mr. Brayton?
As children are forced to enter school, the government has less right to restrict their speech there, not more.
This statement is absurd: children are "forced to enter school" for a specific purpose, and it's ridiculous to say that the school can't stop or prevent activities that contradict or subvert that purpose.