Another Anti-Gay Free Speech Case

Let me speak to the issue as a true card-carrying liberal (well, I was a delegate once to the Democratic county convention, and they didn't issue cards, but still...).

The Right places very little value on fairness, except as a tactic. And you can be sure their well financed PR machine will make hay with this case.

"See," some of them will say, "they're against free speech too, so when we're against free speech it's not so bad."

Others will appeal to the more delusional: "It's lib-ruhls who are against free speech, not us. And obtw, it was conservatives who went on freedom rides in the '60s, and lib-ruhls who turned the dogs and firehoses on us. And the Nazis? All liberals."

That said, if we don't join them in this, then we don't stand for anything except the defeat of conservatism. Having seen the obverse side of that attitude for so many years, I can tell you it's gonzo ugly, and it's nothing I'd ever want to see when I look in the mirror.

The cure for speech is more speech. Period.

And obtw, my kid's high school had a big Fellowship of Christian Athletes club (gang? klavern?) meeting on school property, but when my kid wanted to set up a YRUU club, he was told absolutely no.

The question really is, with all the alleged liberals in education, when was the last time you heard of a school that didn't side with conservatives and against liberals?

If this were a college, you and the ADF would be right. But this is a high school, with minors in the custody of adults, so the school staff have an obligation to keep certain opinions out of the school, if they are found to be false and dishonest, or contrary to our values in a significant way (i.e., denying others their rights or calling for criminal action), or if they create a hostile atmosphere for some students.

That said, the card and T-shirt at issue here are basically nothing more than bland, blithering non-statements that don't really say anything more substantial than "look at this Web page." The school overreacted, and misused -- but did not abuse -- their legitimate authority.

The only elements of that case that need a closer examination are the questions of:
1) was he handing them out during non-educational time
2) was his efforts causing a disruption (which the pamphlets could very well cause a disruption)
3) what did the pamphlets say

Beyond that, I have to agree, it's pretty much an open and shut case.

Wouldn't it have been easier for the school to have neither of those days? Are they really necessary in a high school environment?

Days of Silence are absolutely necessary, to fight against the blatant homobigotry and Hatred For Jesus shoved down kids' throats at home. On the information in this post, this kid doesn't seem to be disruptive or hostile, so the school probably overreacted in this case.

I have to agree with Raging Bee about k-12 schools as captive audiences of groupthinking minors, though. Psychological and physical torture can fly under the radar of administrators and seriously damage kids in such an environment.

IlDayo: Events of this sort can be considered appropriate, to the extent that they express or uphold important values, such as equality under the law, resistance to injustice, sympathy or mourning for people suffering from disaster or injustice. From what I've read, the Day of Silence didn't look any less appropriate than a moment of silence for a fellow student who has died, or for US soldiers killed in action.

Raging Bee wrote:

If this were a college, you and the ADF would be right. But this is a high school, with minors in the custody of adults, so the school staff have an obligation to keep certain opinions out of the school, if they are found to be false and dishonest, or contrary to our values in a significant way (i.e., denying others their rights or calling for criminal action), or if they create a hostile atmosphere for some students.

I disagree. It's not the government's job to decide which opinions must be kept out of the school or which are "contrary to our values" (to whose values?). Only in the most extreme of cases should they step in, and as you admit, this wasn't even a mild case. If the government tells one group of students that they have the right to express their views but tells another group that they don't, that is viewpoint discrimination. Are there extreme cases where this is necessary? Sure. I don't think any of us would say that a school should allow someone to hand out flyers that said, "Niggers deserve to die." But we should err on the side of allowing as much free speech as we can and still have functioning schools that can go about their jobs. That is the basic lesson of Tinker and I think it's the correct one. And in this case, the parallels between the two decisions are obvious and so is the fact that the school decided that one opinion could be expressed and the other could not, solely because the latter was a religious opinion. That surely flies in the face of the first amendment.

Ed, this was a mild case, and they overreacted. But all my experiences and anecdotal evidence (which means nothing, I know) tells me that you vastly underestimate the psychological torture that anyone who is unfortunate enough to be labeled an Other goes through in school. Add to that the mandatory attendance and you have a vicious destroyer of lives that is difficult to fight with adult oversight.

Ed wrote:

It's not the government's job to decide which opinions must be kept out of the school or which are "contrary to our values" (to whose values?).

Not directly -- but it's something most parents want done, which they are expceted by law to do (neglect, endangerment and contributing to delinquency are crimes), and for which they demand that their schools -- public and private -- assist; therefore the schools have no choice but to teach values and manners along with all the "academic" stuff. It is the obligation of adults -- as parents, voters, and as a society -- to uphold, practice and pass on their values to the next generation; and a lot of these duties are explicitly delegated to the schools in which parents choose to enroll their kids.

(I really don't see why any of this is at all controversial. For as long as I remember, every school year began with a long and detailed description of the school's rules of conduct, which reflected the values of the parents who organized the school and hired the teacher, and which also kind of mirrored the laws (the "official definition" of the people's values) I'd have to obey as an adult.)

If the government tells one group of students that they have the right to express their views but tells another group that they don't, that is viewpoint discrimination.

True; but if the latter group's stated views were clearly contrary to some basic notion of right and wrong (like the racist slogan you cite), or if the views consisted of obvious and destructive falsehoods, or if the expression of said views created a hostile climate in the school, then it would be a perfectly justified act of viewpoint discrimination. People are equal, viewpoints are not.

The ADF and the gay-bashing kids (probably with a wink from their parents and the IDiot crowd) are trying to push the envelope with cases like this, hoping to hound and badger school officials into silent acquiescence -- just like kids pushing limits with their parents. And just as parents need a free hand to hold their kids to reasonable limits, the school officials must be given the authority to do their jobs. This school made the wrong decision, but the worst thing we can do is deny them the authority to make and enforce such decisions.

Raging Bee wrote:

Not directly -- but it's something most parents want done, which they are expceted by law to do (neglect, endangerment and contributing to delinquency are crimes), and for which they demand that their schools -- public and private -- assist; therefore the schools have no choice but to teach values and manners along with all the "academic" stuff. It is the obligation of adults -- as parents, voters, and as a society -- to uphold, practice and pass on their values to the next generation; and a lot of these duties are explicitly delegated to the schools in which parents choose to enroll their kids.

But do you not recognize that this argument - word for word - is also used to argue that the schools should teach that homosexuality is evil and can be changed? If you're going to give government that kind of power in schools, you're not going to like which values the parents are going to demand be taught. But remember, we're not talking about what the school is saying or teaching, we're talking about what a student is allowed to say. And when the government starts telling students that they can express one opinion on an ongoing, controversial issue but telling other students they can't express theirs, we've got a big problem on our hands. The constitution pretty clearly forbids that.

True; but if the latter group's stated views were clearly contrary to some basic notion of right and wrong (like the racist slogan you cite), or if the views consisted of obvious and destructive falsehoods, or if the expression of said views created a hostile climate in the school, then it would be a perfectly justified act of viewpoint discrimination. People are equal, viewpoints are not.

But the right to express viewpoints must be equal under the 1st and 14th amendments. And again, who gets to decide which notions are "contrary to some basic notion of right and wrong"? If it was left to a majority vote, as you seem to think it should, you're going to find more often than not that it's the pro-gay position that is viewed as being contrary to some basic notion of right and wrong, and is therefore forbidden. Give them the power to prohibit expressions you think are morally wrong, and you also give them the power to prohibit your expressions that others think are morally wrong.

Interesting case, but I would respectfully disagree with your stance. On the one hand, we have the Day of Silence, a primarily non-disruptive and voluntary event designed to promote awareness of a real social issue about hatefuly bigotry against people with a biologically based difference in sexual orientation. (Nothing in there about religion.) And on the other hand, we have the Day of "Truth," which added to hallway litter and introduced divisive and condemnatory religious viewpoints into the mix -- something that I thought the separation of church and state had already dealt with.

I see your point about allowing both viewpoints fair and equal access, but there are differences, at least in my view.

If you're going to give government that kind of power in schools, you're not going to like which values the parents are going to demand be taught.

Government already has that kind of power, and we're already hearing the demands; we've been hearing demands of all sorts at least since the Scopes trial, and probably much earlier. Besides, such decisions are inevitable: kids will learn values from what they see around them, whether or not anyone ever attempted, or even made a conscious decision, to teach them values.

As for which specific values schools should teach kids, a good baseline would be the laws they are expected to obey, and the values underlying them. That, at least, will keep them out of trouble until they come of age and can decide which country they want to live in.

But the right to express viewpoints must be equal under the 1st and 14th amendments.

For adults who can take responsibility for their words and actions, yes. For minors who can't, no: adults have obligations toward kids, which often supercede their rights (although, paradoxically, chief among these obligations is to teach kids their rights). Freedom of speech, for example, does not mean kids have the right to ignore their lessons, substitute opinion for fact, flunk exams with impunity, disregard manners, disobey their parents, scream at their teachers, or verbally bully other kids. And teaching kids their rights must include enforcing the discipline and mutual respect required to exercise those rights in a civil society.

Parents have near-total control over what their kids can wear, what they can eat, what they can watch on TV, what books they read, what church they go to, how they speak to adults, and who they get to hang with. And schools -- acting "in loco parentis" -- have similar prerogatives toward their students, at least when they're on school turf during school time. Saying that kids have equal rights to adults is a rather dangerous bit of self-deception.

Carolyn Bahm wrote:

On the one hand, we have the Day of Silence, a primarily non-disruptive and voluntary event designed to promote awareness of a real social issue about hatefuly bigotry against people with a biologically based difference in sexual orientation. (Nothing in there about religion.) And on the other hand, we have the Day of "Truth," which added to hallway litter and introduced divisive and condemnatory religious viewpoints into the mix -- something that I thought the separation of church and state had already dealt with.

But this is a purely subjective judgement. You support the Day of Silence (so do I) and so you deem it to be a valuable event. You don't support the Day of Truth (nor do I), so you decide that it was only "hallway litter". But the fact is that there was no disruption in this case, and the latter was just as voluntary as the former. As far as separation of church and state goes, that concept deals with what the government can say, not with what individuals can say. Since this case dealth with student speech, the establishment clause is completely irrelevant. The free exercise clause, along with the free speech clause, guarantees the right of a student to speak their mind, particularly about serious political disputes of the day. The courts have ruled on this many times and said that the only time the school can censor student speech is to prevent an imminent disruption of the school's educational mission (none was even alleged in this case, much less proven) or to prevent the violation of someone else's rights (and there is no such allegation in this case). As a legal matter, this really is open and shut.

Raging Bee-

I'm afraid you're simply wrong on this one. This notion that the schools act "in loco parentis" does not mean that the schools have all of the authority that parents do. The government's authority is clearly proscribed by the constitution, and the Supreme Court has rightly said that students do not give up their first amendment rights when they walk through the schoolhouse doors. There are more acceptable limitations on them than in the outside world, but those are exceptions to the rule, not the rule itself. You don't start from the assumption that they have no free speech rights and then dole out the ones you think they should have; you start from the assumption that they have them and restrict the ones that are necessary to restrict in order to serve a compelling state interest (just as in every other area of constitutional law). In such cases, the courts have said - correctly - that the government can only prohibit speech that violates the rights of others or that prevents the school from pursuing its legitimate educational mission. Neither was present in this case. There was no disruption of educational activity, no one's rights were violated by this student handing out cards and wearing a t-shirt with his own opinion (an opinion not stated in a patently offensive way) on a controversial subject. He was doing precisely what the other students were doing, expressing an opinion. For the government to allow it for one student and deny it for another, when the behavior is exactly identical, violates the constitution. And I have no doubt that court will rule that way. This case is so obvious that I can't believe the school would fight it. They should settle it, immediately.

In such cases, the courts have said - correctly - that the government can only prohibit speech that violates the rights of others or that prevents the school from pursuing its legitimate educational mission.

Ed: I don't think we disagree as much as you seem to think we do. I'm certainly with you on the silliness of this school's decision; but a "silly" or "erroneous" decision is not necessarily an "unconstitutional" one, and I fear that making a constitutional case out of it could constrain teachers' authority to stand against pernicious ideas and falsehoods. That's why I think the principal really ought to back down on this, and take it as an opportunity to try and clarify the rules on acceptable student speech. Discussions of this issue in civics classes might be beneficial, possibly including the content of that Web site the cards mentioned.

(Yes, I do think the content of the Web site referenced might be relevant to a decision. It would certainly not be right to allow, for example, advertizing for a jihadi or Nazi Web site in a high school; nor would I think it acceptable for kids to wear "www.godhatesfags.com" on T-shirts. If a certain URL was well-known to contain hateful statements, then spreading that URL around in a school could be, in effect, a form of intimidation -- what Marion Zimmer Bradley once called "silent slander," the kind that's hardest to refute because it is silent and disguised.)

I may disagree with you (and possibly with the Supreme Court, though I'm not sure about that), on how broadly to interpret the "legitimate educational mission" clause: as I see it, schools constrain students' freedom of speech every day, and most of the constraints aren't controversial. (Minor example: in a creative writing workshop, we were told that negative criticism was forbidden, and all criticism of students' writings must be "constructive," couched in positive or neutral terms -- which made perfect sense to me. Also, arguing about politics in a math class was generally frowned upon.) The attitude I've noticed is "You're here to learn, not to speak out, and teachers are paid to teach you, therefore you must follow the school's rules, do the work assigned, and participate in class activities in order to learn what you need to know." School officials generally had a lot of latitude in deciding what interfered with the "legitimate educational mission" of the school, and parents seemed eager to be seen reinforcing, not undermining, the teachers' authority as role-models.

Yes, Raging One, schools have a great deal of control over student's speech. But Ed is correct to point out that freedom is only here conceded for a particular purpose, to further the educational process. Therefore curbs on speech which are irrelevant to education are not allowed.

The current case is trivial for two reasons. First, the speech here being proscribed (wearing a t-shirt and handing out non-disruptive printed material) is always constitutional. I am not aware of a single case to the contrary. Since the speech was also the student's sincerely held religious viewpoint, it should be doubly protected: The administrator who stated, "[R]eligion is not allowed in school," should be fired immediately for abject stupidity.

Second, even had this speech not been already permissable, the school had already opened a limited public forum by holding its event the prior day. If a school creates a forum for speech, it may not then employ viewpoint discrimination in deciding what other ideas might be presented (always assuming no violence, profanity, etc).

I date a school administrator. She is trained quite well in many things, but serving as the thought police is not one of them, nor should it be.

Mr. Brayton,

You make a thoughtful response to the objections in my earlier comment, but I still disagree. Let me qualify some of the muddier wording in my original comments. (I'm continuing this discussion not to harangue you with our differences -- just to explain my views more clearly. I do respect the viewpoint you have, although I disagree with it. And I promise that if I have anything further to say after this, I won't clutter your comments with additional long-winded responses from me; I'll post on a blog of my own and just post a short comment on yours, inviting you to visit. Thanks for giving me this opportunity to respond once more, however.)

I don't think of the Day of Truth as "only hallway litter" overall; I was being entirely literal when I compared a non-paperwork event to one that generated actual slips of paper that many thoughtless teens will undoubtedly toss aside, creating a hallway mess that school janitorial staff will have to address. It's messy and requires manpower to clean up. So the Day of Truth has a small negative effect on the school that the Day of Silence does not. Depending on the size of the school and the number of fliers handed out, it will also fill up the trash bags even if students are neat about discarding the fliers. Someone has to haul that trash away; someone has to buy those trash bags. But such objections are really minor.

To me, there is a fundamental difference in the focus of these events, and that is my primary objection to the Day of Truth. The Day of Silence supports something that is not related to religion at all. It was not "Episcopalians for Gays" day or "God love trannies" day. It was simply a political protest by (or on behalf of) a segment of students who felt some level of oppression or unequal treatment in a taxpayer-funded public school that minors are required by law to attend. They could just have easily called it "Quit Picking on Me" Day.

In contrast, the Day of Truth was -- to the best of my understanding -- based *solely* on religious perspectives. They were protesting about the attention-getting actions of people with gay, bi- or lesbian sexual orientations, and these protests were based solely on religious objections to those sexual orientations. I don't think the Day of Truth students' protests had any foundation other than religious objections.
* They were not saying, "We object to divisive issues intruding on our classrooms -- keep politics out of our schools." (Which would have been ironic; their own protest does the same thing.)
* They were not saying, "We think alternate sexual orientations introduce financial, health-related, or other risks to the student population, so students shouldn't promote their sexual differences here." (Which would have been foolish, since they have not a leg to stand on.)
* They were not saying, "We feel oppressed by the censure of students who claim a bias when they're actually asking for special treatment." (I disagree with this viewpoint, fyi. But it would have been an interesting argument for them to make.)

The three fictitious examples I just listed would be different arguments other than the Day of Truth students' focus, which seems to have been, "Shut up, sinner.")

I believe the Day of Truth students were, in effect, saying, "My church doesn't believe you have a right to the sexual orientation you have, and we're offended that you dared to advocate for a sexual orientation that we believe should not exist."

Even the names of the events reflect the biases of the students. "Day of Silence" simply states what the students are doing. "Day of Truth" labels the anti-gay bias as "truth."

I can't speak to the letter of the law about what should have happened to the Day of Truth students, but I know from my own journalism observations that many schools do limit what appears in print in school publications and also limit what printed materials can be handed out on school grounds. (To be clear, I'm not *supporting* that practice, just stating that it's got a long history.) I think the treatment of the Day of Truth students has some historical precedence, and I can understand why school administrators would hesitate to step on the toes of political correctness by quashing the Day of Silence while hesitating far less to smack down the Day of Truth, especially given how litigious some atheist groups and non-mainstream religions have been with some school districts.

I was having trouble articulating my objections to your reading of the First Amendment, and so I did a little research at www.religioustolerance.org (a site I heartily recommend to anyone interested in this topic). Here's what I derived:
* Wouldn't permitting students on school grounds to dispense religion-based arguments against a sexual orientation violate the establishment clause because it violates the Endorsement Test (which has found that a law is unconstitutional if it favors one religion over another in a way that makes some people feel like outsiders and others feel like insiders)? Compulsory school attendance coupled with unbridled tolerance for religion-based pamphlets doesn't work.
* The free exercise clause also doesn't apply, as students are not forbidden to practice their religion or hold certain views.
* The free speech clause is not absolute. For example, classrooms could not function efficiently if a student could, say, interrupt class and deliver an hour-long harangue about his religious views on a particular classroom topic. Nor can students freely wear T-shirts that say anything they like on them; schools have rules about profanity, alcohol promotion, tobacco promotion and other taboos showing up on clothes. Schools clearly can set some speech limits. An elaboration on this view is described far better than I could do it at the Anti-Defamation League's site at the following URL: http://www.adl.org/religion_ps_2004/distribution.asp . That site says, in part, "What concerns arise when students distribute religious material prepared by outside organizations? The distribution by students of religious material, under a school's auspices and with its apparent sanction, creates the serious danger of school and state advancement of specific religious practices or beliefs, or at a minimum the impression of such endorsement, which may violate the Establishment Clause."

The ADL site also raises the gray area that you raise: "May school officials totally prohibit students from distributing religious material that they prepare themselves? The U. S. Supreme Court and Federal courts have not yet resolved this question, which arises less frequently than the issue of distribution of religious material prepared by outside organizations. However, because students also have free speech rights, student distribution of religious material prepared by students may be more difficult to restrict than material prepared by outside groups. However, since a school is a nonpublic forum, it is likely that a school will be able to restrict these materials for pedagogical purposes."

Now, the Day of Truth students might have a beef under the federal Equal Access law. I haven't researched that, but I would question whether allowing some students to remain silent as a protest of unequal treatment is *truly comparable* to letting some students hand out literature based on religious beliefs.

I continue to enjoy your writing and the comments you elicit from your readers.

Best regards,
Carolyn Bahm
Collierville, TN

Carolyn Bahm wrote:

Wouldn't permitting students on school grounds to dispense religion-based arguments against a sexual orientation violate the establishment clause because it violates the Endorsement Test (which has found that a law is unconstitutional if it favors one religion over another in a way that makes some people feel like outsiders and others feel like insiders)? Compulsory school attendance coupled with unbridled tolerance for religion-based pamphlets doesn't work.

First, there really is no endorsement test for establishment clause grounds. Justice O'Connor tried mightily to create one, but in no case did a majority ever endorse such a test. There is the Lemon test, of course, but none of the prongs of that test apply here. There is no establishment clause problem at all. The courts have long established that students have a right to express their religious opinions in school in any number of says - wearing t-shirts with religious messages, wearing religious symbols such as crosses, writing about their religious views in a homework assignment or paper where appropriate, and yes, that includes distributing flyers with religious messages on them. They can't disrupt class time to do that, but they do have a right to do it between classes, before or after school starts, at lunch time, and so forth. It goes on in schools all over the country every single day. The reason there's no establishment clause problem is that the school is not responsible for those ideas, the student handing them out is. Just as the school is not endorsing the Republican party if they allow a Republican Club to form and hand out flyers for their meetings, or a Democratic Club, or any other kind of club.

The free exercise clause also doesn't apply, as students are not forbidden to practice their religion or hold certain views.

The free exercise clause doesn't just cover the practice of religion, it also covers the expression of one's religious views. But more importantly, it's the free speech clause which does so as well.

The free speech clause is not absolute. For example, classrooms could not function efficiently if a student could, say, interrupt class and deliver an hour-long harangue about his religious views on a particular classroom topic.

Which has nothing to do with this situation. The students did not interrupt class time to hand out the flyers. They did precisely what the students the day before did.

Nor can students freely wear T-shirts that say anything they like on them; schools have rules about profanity, alcohol promotion, tobacco promotion and other taboos showing up on clothes. Schools clearly can set some speech limits. An elaboration on this view is described far better than I could do it at the Anti-Defamation League's site at the following URL: http://www.adl.org/religion_ps_2004/distribution.asp . That site says, in part, "What concerns arise when students distribute religious material prepared by outside organizations? The distribution by students of religious material, under a school's auspices and with its apparent sanction, creates the serious danger of school and state advancement of specific religious practices or beliefs, or at a minimum the impression of such endorsement, which may violate the Establishment Clause."

The ADL is wrong here. Of course the free speech clause is not absolute, but the courts have ruled consistently that you can only violate a student's free speech for two reasons: because it results in a disruption of the school's ability to operate effectively in its educational mission, or because it violates someone else's rights. Neither is true in this case. The difference between outlawing profanity and outlawing the expression of religious beliefs is that the first is not viewpoint-dependent. The courts have ruled time and time again that you cannot allow the expression of non-religious views but bar the expression of religious ones. That is precisely what happened in this case, they allowed the expression of one viewpoint and prohibited the expression of the opposing viewpoint, and they did so solely because the second viewpoint was religious in nature. All the talk of hallway littering is irrelevant; the reason given for the prohibition was solely because the opinion they were expressing was religious. This is absolutely forbidden constitutionally.

Regardless of how you might feel about it, from a legal standpoint this really is a no-brainer. I have no doubt that the judge will issue a preliminary injunction against the school, as he should, and that should send a powerful message to the school that if they fight this they're being foolish. They should reverse the policy, sign a consent decree and hope the case gets dropped.

One correction to my last comment: I just went to the original site you mentioned and realized that the school permitted Day of Silence students to pass out fliers too.

As for the rest, well, we continue to disagree. I do look forward to any court updates you provide on this story; I hope you do so. Thanks! - Carolyn

Ms Baum said: The ADL site also raises the gray area that you raise: "May school officials totally prohibit students from distributing religious material that they prepare themselves? The U. S. Supreme Court and Federal courts have not yet resolved this question, which arises less frequently than the issue of distribution of religious material prepared by outside organizations. However, because students also have free speech rights, student distribution of religious material prepared by students may be more difficult to restrict than material prepared by outside groups. However, since a school is a nonpublic forum, it is likely that a school will be able to restrict these materials for pedagogical purposes."

I'm not sure who the ADL has researching this point, but this is wrong, and likely disingenuous. True, there are no appellate court decisions on the exact question of students distributing religious literature they have prepared. But there are MANY cases dealing with student-prepared "alternative" campus papers and the like that a school administrator tried to suppress. And the would-be censors lose every case where there is no question of violence or serious disruption.

The case at hand here is a slam dunk, as Ed indicates. The litter argument made me laugh, though. It's kind of a pale echo of the version of the heckler's veto where the local gov't says it can't afford the police protection they are sure a demonstration will require. Thanks for that.