How far do the protections of the First Amendment extend in public school?

April 26, 2006 1:36 AM

The Ninth Circuit (maligned by many as a hotbed of extreme liberal judicial activism, but defended by others PDF) issued its opinion in the case of Harper v. Poway Unified School District last week. Judge Stephen Reinhardt - who, to some people, embodies the alleged evils of the Ninth Circuit - issued the majority opinion, and Judge Alex Kozinski filed a strong dissent. The majority opinion held that a high school principal who ordered a student to remove his T-shirt that said "Homosexuality is Shameful" did not violate the student's First Amendment rights, reasoning that "limitations on speech" are permissible in cases where speech is "derogatory and injurious remarks directed at students' minority status such as race religion and sexual orientation," and the limitation is "narrow, and applied with sensitivity and for reasons that are consistent with the fundamental First Amendment mandate." [more inside]
posted by Pontius Pilate (148 comments total)

The only shameful things I see here are that T-shirt and this court decision.
posted by Ryvar at 1:39 AM on April 26, 2006

Despite the strong critical reactions the Reinhardt majority opinion has received in the blogosphere (see, e.g. here, here, and here) ,it does seem to me at least that strong arguments can be made for both sides.

Briefly speaking, there are three precedents pertaining to speech in schools: Fraser, Kuhlmeier, and of course Tinker (see Kozinski for details). Fraser deals with plainly offensive speech, Kuhlmeier deals with speech sponsored by the school, and the broad remainder falls to Tinker. Kozinski points out that in Frederick v. Morse, the Ninth Circuit ruled that the "plainly offensive" test has to do with the actual language used, and not the idea the message carries. In this instance, the language - "homosexuality is shameful" - is not per se plainly offensive, and Fraser does not apply. The school did not sponsor the T-shirt (although it was apparently worn by the student as a reaction to a school-sponsored "Day of Silence" event), and so Kuhlmeier does not apply either. So, as in most school speech cases, the holding in Tinker applies.

(Tinker v. Des Moines is a famous 1969 case involving two students protesting the war in Vietnam by wearing black armbands to school. The principal, ostensibly apprehensive about the disruption such armbands may provoke, asked the students to remove the armbands. When they refused, they were suspended. In deciding the case, the Supreme Court ruled 7-2 that the armbands in this instance were sufficiently close to speech to be protected by the First Amendment, and that the principal failed to show that wearing them would substantially disrupt the school atmosphere. Justice Black and Justice Harlan dissented.)

The decision in this particular case seems to hinge on two questions. The first is whether the actions of a student wearing a T-shirt that carries a message offensive to minority groups (i.e., symbolic and arguably peaceful speech that involves no direct confrontation) is likely to substantially disrupt the school's interest in maintaining discipline. As I read the case, it does not appear that this has been shown - at least, the school was unable to present any such evidence in the instant case. The second question is whether the message on the T-shirt is sufficiently offensive to classify as "plainly offensive" - and, applying the Fraser standard, it does not seem to be (though that particular standard seems at least problematic, as it is certainly possible for speech to be quite offensive without making use of profanity).The trouble is that Kozinski is quite right in his dissent when he argues that the majority opinion seems to implicitly favor one group's right to speak over another's. Disagreeable as the message may seem, the student has a right to believe that homosexuality is shameful and should be able to articulate that message provided that it does not cause substantial disruption. The school, after all, permitted pro-LGBT students to hold a Day of Silence, which essentially carried the message that homosexuality etc. is not shameful, but is socially acceptable. Why is one view favored over another, Reinhardt's rather unsound "minority status" explanation aside?

On the other hand, Reinhardt does make a rather persuasive case in presenting the general atmosphere of hostility that existed at the school (e.g., homosexual students being attacked, etc.), and it is difficult to say that the school should not involve itself in attempting to regulate such hostility. He also distinguishes the case from Tinker because there, the case did not "concern speech or action that intrudes upon the work of the schools or the rights of other students" (Tinker at 508). The acceptance of Reinhardt's argument seems to be contingent upon the acceptance of his assertion that the student in this case, by passely wearing a T-shirt with a anti-homosexuality message, did indeed "intrude upon ... the rights of other students," and the strength of this argument seems to be, judging by the reaction to the case so far, entirely subjective (based on the reader's personal perspective on the matter).

Really, this case is a good example of the problematic results of the judiciary interjecting itself in subjective matters that cannot withstand a universal rule because of the broadness and variety of situations in which they arise. I am dissatisfied with the outcomes presented by both the Reinhardt opinion and the Kozinski dissent, yet I am at a loss to suggest a better alternative.
posted by Pontius Pilate at 1:40 AM on April 26, 2006

Wow, cogent and informative analysis, thanks Pontius.
posted by onalark at 2:03 AM on April 26, 2006

Scary. Not unexpected, but scary.
posted by BackwardsHatClub at 2:05 AM on April 26, 2006

And while I don't necessarily agree, excellent comment Pontius Pilate.
posted by BackwardsHatClub at 2:06 AM on April 26, 2006

Wow Pontius, that's some great commentary.

I like to bring up the not-really-applicable-to-some-people-but-applicable-to-me point of: What if the shirt said "Black skin is shameful"?
posted by antifuse at 2:14 AM on April 26, 2006

Also, the whole problem here is that this ruling targets an individual. Courts have ruled many times that children in school do not have full first amendment rights, however, this targets one child with one message. If we are going to take the path that children do not have the right to say whatever they desire in school then all messages ought to be banned, or at the very minimum all messages that anyone finds offensive, not only those in a minority group.
posted by BackwardsHatClub at 2:15 AM on April 26, 2006

this case is a good example of the problematic results of the judiciary interjecting itself in subjective matters that cannot withstand a universal rule because of the broadness and variety of situations in which they arise

But isn't this by definition the role of a judge? The notion that judges should simply apply the law ignores the obvious fact that the law - and how to apply it - is often not at all clear in certain circumstances. Free speech cases are notoriously difficult.

BTW, good post and excellent summary in the thread. This is how to present a complicated issue for discussion.

As an aside, it is fascinating how often - or so it seems - that American high schools are the stage for such fundamental constitutional issues.
posted by three blind mice at 2:20 AM on April 26, 2006

If we are going to take the path that children do not have the right to say whatever they desire in school

Come on BackwardsHatClub, that's being disingenuous. Children do NOT have the right to say whatever they desire in school, and they never have had that right.

or at the very minimum all messages that anyone finds offensive, not only those in a minority group

This is how it is, right? I mean you can't go around on a campus calling white students crackers can you?
posted by onalark at 2:22 AM on April 26, 2006

onalark: I'm not arguing that children should be allowed to say whatever they want in school, I'm arguing for equal application of the law.

This is how it is, right? I mean you can't go around on a campus calling white students crackers can you?

Apparently not, I find the whole concept of Day of Silence offensive, but the school appeared to de facto promote that event while suspending a boy with an opposing viewpoint.
posted by BackwardsHatClub at 2:32 AM on April 26, 2006

I mean you can't go around on a campus calling white students crackers can you?

Public uni, pretty sure you could.
posted by Richard Daly at 2:33 AM on April 26, 2006

Also, if you read the dissent, the judge apparently watches a lot of the WB, or has a daughter who does so. It's an easy read for a judicial opinion (the first one I've heard use the word "zillion" for instance) and so far he's referenced Mean Girls, 10 Things I Hate About You, The OC, and Veronica Mars.
posted by BackwardsHatClub at 2:35 AM on April 26, 2006

Public uni, pretty sure you could.
Having been a college student within the last couple of years, I can state that if this statement was made in any serious way in front of any group of students that could take offense, the speaker would have found himself in hot water. I remember attending a comedy sketch being put on by a fraternity house deliberately trying to offend the administration, but they didn't make any hateful statements about any races, minority or otherwise.

Apparently not, I find the whole concept of Day of Silence offensive, but the school appeared to de facto promote that event while suspending a boy with an opposing viewpoint.

The Day of Silence in this situation appears to express the viewpoint of using the power of freedom of speech and civil rights for a specific group. If you believe that homosexuals have the right to be treated as a minority group, then the 'opposing viewpoint' is effectively a hateful view.
posted by onalark at 2:45 AM on April 26, 2006

I suppose you think huge mobs should be allowed to chase after gay kids, shouting "shameful gays! we hate you!" First amendment rights, obviously. What a joke.
posted by reklaw at 2:46 AM on April 26, 2006

If you believe that homosexuals have the right to be treated as a minority group, then the 'opposing viewpoint' is effectively a hateful view.



Treated as a minority group how? Do I believe homosexuals should have special treatment of some sort? Nope. The same treatment is fine by me. If they can hold a day that promotes their paticular agenda then any student or students should be able to express the opposite of it.
posted by BackwardsHatClub at 3:01 AM on April 26, 2006

reklaw: I suppose you think huge mobs should be allowed to chase after gay kids, shouting "shameful gays! we hate you!" First amendment rights, obviously. What a joke.

KKK rallys are legal, lynchings are not.
posted by beerbajay at 3:08 AM on April 26, 2006

onalark,
"Hateful view"? So what? You have the right to say hateful things, that's the point. BackwardsHatClub is echoing Kozinski's dissent that the school is arbitrarily giving favor to one view (pro-homosexual Day of Silence) over anothe r (the student's). Hateful speech is not, and should not be, illegal.

reklaw,
Come on, you know that's a different situation. Assault and harassment are already illegal, and no one is saying that oppressing gays is a good idea and should be done. The point is that a person expressing a view you don't like, in a peaceful manner, should be able to do so if he wishes.
posted by Sangermaine at 3:08 AM on April 26, 2006

So you're saying that if a group of female students who had been leered at by their instructors had a day where they wore blindfolds as a sign of protest, the next day the male teachers could bring x-ray goggles?

The key word I see in your sentence is agenda, and I'm not sure I buy that definition. For example, I support the right of Christian students to discuss their religion on high school grounds and hold events promoting their faith. I would consider this allowing Christians to 'promote their agenda'. However, when the discussion focuses on how members of a particular group are in some way inferior or wrong for being who they are, I don't consider this an agenda anymore, I consider it hate.
posted by onalark at 3:12 AM on April 26, 2006

Assault and harassment are already illegal, and no one is saying that oppressing gays is a good idea and should be done. The point is that a person expressing a view you don't like, in a peaceful manner, should be able to do so if he wishes.

It's less a viewpoint I "don't like" and more a viewpoint I hate and despise, but yes. Civil liberties are paramount, even if they are abused by idiots.
posted by Ryvar at 3:13 AM on April 26, 2006

I was merely expressing my belief that the Almighty looks poorly upon homosexuality.
posted by fleacircus at 3:46 AM on April 26, 2006

Thanks, all; I do think that providing background for such a divisive opinion is absolutely crucial, and I am glad that you guys found it useful.

I'll chime in with a few additional comments, and then leave the thread alone until morning.


antifuse: I like to bring up the not-really-applicable-to-some-people-but-applicable-to-me point of: What if the shirt said "Black skin is shameful"?

By Reinhard's logic, it does seem that the school would be able to supress such speech. The term "shameful" can certainly be viewed as a derogatory and injurious remark, per the criteria cited in Reinhard's opinion, and in your example, it would be directed "at students' minority status."

There are two previous cases that are relevant to the issue of race-related speech in school. In 1966, the Fifth Circuit had to decide in Burnside v. Byars whether public school students at an all-black school could be ordered to remove "freedom buttons" to express their protest against racial segregation. The Fifth Circuit held 3-0 that because the school officials had failed to provide evidence that wearing these buttons would lead to substantial disruption, the school officials could not prohibit them. Significantly, the opinion noted that:

...we must also emphasize that school officials cannot ignore expressions of feelings with which they do not wish to contend.

It is notable, however, that the same court deciding on largely the same issue in Blackwell v. Issaquena County Board of Education (e.g., segregated, all-black school where students wore "freedom buttons") arrived at the exact opposite decision and upheld the school's decision to prohibit the students from wearing the buttons. The only difference in the two cases, insofar as I can tell, is that where in Burnside, there was no evidence that the buttons had caused substantial disruption, there was indeed ample evidence that they had such an effect in Blackwell. In Blackwell, the same judge said:

"It is always within the province of school authorities to provide by regulation the prohibition and punishment of acts calculated to undermine the school routine."


BackwardsHatClub: Also, the whole problem here is that this ruling targets an individual. Courts have ruled many times that children in school do not have full first amendment rights, however, this targets one child with one message. If we are going to take the path that children do not have the right to say whatever they desire in school then all messages ought to be banned, or at the very minimum all messages that anyone finds offensive, not only those in a minority group.

That's a bit overbroad, I think. The majority in Tinker took the accepted view that children do not have the right to say whatever they want in school if that speech substantially interferes with the school's interest in maintaining a normal atmosphere. It doesn't follow that because there are some restrictions, either everything must be allowed, or everything that can be perceived as offensive must be banned. To give just one example, Mark Twain's book "Huckleberry Finn" contains a lot of usage of the word "nigger," and it is required reading for most high schools. It is not outlandish to suggest that a black student may be offended by the constant use of the term (particularly if its use is not prefaced by an explanation of the linguistic, social, etc. conventions of Twain's time), but its use there is clearly academic and non-disruptive.


three blind mice: But isn't this by definition the role of a judge? The notion that judges should simply apply the law ignores the obvious fact that the law - and how to apply it - is often not at all clear in certain circumstances. Free speech cases are notoriously difficult.

Well, it's not my definition of a judge, but I suspect it may be others' definition. Frankly, I think that if Reinhardt had applied the Tinker test without doing a lot of fancy intellectual legwork - that is to say, if he had simply applied the relevant precedent - he would not have ended up with this decision.

I will give just one example I spotted when reading the decision. Reinhardt says:

... a school may regulate student speech that would 'impinge upon the rights of other students.' Tinker, 393 U.S. at 509." (p. 17)

and

In Tinker, the Supreme Court held that public schools may restrict student speech which 'intrudes upon . . . the rights of other students” or “colli[des] with the rights of other students to be secure and to be let alone.' 393 U.S. at 508."

Now, I'll be honest and say that I have not spent too much time analyzing the full Tinker decision or the subsequent free speech in schools jurisprudence, but Reinhardt's interpretation of the parts of the decision he cites strikes me as willfully inaccurate. This is what the Court had said in Tinker, with the parts Reinhard selectively quoted in bold:

In the present case, the District Court made no such finding, and our independent examination of the record fails to yield evidence that the school authorities had reason to anticipate that the wearing of the armbands would substantially interfere with the work of the school or impinge upon the rights of other students. [509]

There is here no evidence whatever of petitioners' interference, actual or nascent, with the schools' work or of collision with the rights of other students to be secure and to be let alone. [508]

I think it is an absolutely torturous interpretation to read the above in Tinker and argue, as Reinhardt has, that what the Court really said was that had it been presented with evidence of intrusion upon the rights of other students, it would permitted the school to regulate such speech.

Really, the strongest argument I can make here is to point out that even as Reinhardt cites Tinker in support of his theory that Tinker permits public schools to regulate student speech that intrudes upon the rights of other students, he omits this crucial quote from the 1969 Court opinion:

"Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students." [508]

So even though the Court specifically said that Tinker did not involve speech or action that intruded upon the rights of other students, Reinhardt manages to find the exact opposite interpretation in the opinion. That is simply baffling.
posted by Pontius Pilate at 3:48 AM on April 26, 2006

But this is a school. Is it alright for the students to go up to the teacher and say "hey teacher, I think you're a shit"? Or wear a t-shirt with that on? They'd be disciplined, and rightly so really.

Obviously it's terrible if the state goes around throwing people in jail for saying racist/homophobic/whatever things, but teachers should be free to discipline kids for it, employers fire people for it, and so on. Unless you think an employee coming in with an "I hate women" t-shirt should face no consequences?
posted by reklaw at 3:54 AM on April 26, 2006

I think that Pontius Pilate's original comment is fantastic, and I utterly disagree with his conclusion. I hate to say it, but I agree with BackwardsHatClub....

Free speech includes offensive speech. Free speech includes derogatory speech. Free speech includes speech you utterly despise.

I think the slimy little homophobe was being a grade A asshole, and if he ever meets some bodybuilder type homosexuals who've had enough of that crap and pulp him I'll laugh and say he had it coming. But that doesn't justify a government official telling the student that he can't display his message. The answer to speech you disagree with is more speech, not censorship.

The logic of the court's decision could easily be applied by a conservative to censor a pro-tollerance message, or a powerful political party to censor a dissenting political message. While I realize this applies only to schools, I always worry about the slippery slope, and worse it is training the kids to believe that somehow free speech doesn't cover speech they don't like.

If I saw a jackass with a shirt like that I'd organize a local Gay-Streight alliance. I'd organize a Gay Pride day. I'd encourage people to participate in the Day of Silence. I'd tell him he was a jackass, and quote relevant Bible verses at him. But I would not tell him he couldn't wear his shirt, and I cannot agree with any decision that lets a government official tell him that.
posted by sotonohito at 4:02 AM on April 26, 2006

BackwardsHatClub says: Do I believe homosexuals should have special treatment of some sort? Nope. The same treatment is fine by me.

Glad to hear your support for gay marriage and equal civil rights for gays and gay couples!
posted by applemeat at 4:04 AM on April 26, 2006

Excellent analysis, Pontius Pilate, of a difficult and somewhat troubling decision.
posted by applemeat at 4:05 AM on April 26, 2006

The key word I see in your sentence is agenda, and I'm not sure I buy that definition. For example, I support the right of Christian students to discuss their religion on high school grounds and hold events promoting their faith. I would consider this allowing Christians to 'promote their agenda'. However, when the discussion focuses on how members of a particular group are in some way inferior or wrong for being who they are, I don't consider this an agenda anymore, I consider it hate.

Are there no groups that are wrong for being who they are? What constitutes who someone is? Will you, in your answer, find yourself defining the boundaries of identity by what you believe is permissible?

In the "______ is Shameful" form, what nouns would you find permissible, so that the phrase is not hateful?
posted by techgnollogic at 4:15 AM on April 26, 2006

The percentage of decisions from the ninth circuit which survive appeal to the supreme court is quite low.
posted by caddis at 4:22 AM on April 26, 2006

"I think it is an absolutely torturous interpretation to read the above in Tinker and argue, as Reinhardt has, that what the Court really said was that had it been presented with evidence of intrusion upon the rights of other students, it would permitted the school to regulate such speech."

Is it that torturous? When someone lists A and B among their reasons for a decision, and you note that A and B are not to be found in the current situation so you will decide something else... isn't that pretty direct?
posted by fleacircus at 4:34 AM on April 26, 2006

...the problematic results of the judiciary interjecting itself in subjective matters...
If I recall my civics classes correctly, I don't believe judges just wake up one morning and think "Gee, I think I'll stick my nose into so-and-so's dispute." I believe the courts have to be petitioned by citizens to review the issues.
The judiciary does not "interject" itself into anything. They are brought into a situation by the parties in order to reconcile a dispute or situation. In this case the dispute between an homophobic asshat and a reactionary school official.
posted by Thorzdad at 4:36 AM on April 26, 2006

Being Jewish is shameful
Being Catholic is shameful
Being black is shameful
Being Latino is shameful
Being female is shameful
Wearing glasses is shameful
Having divorced paretns is shameful
Wearing braces is shameful
Getting food stamps is shameful
Being a teacher is shameful
Being a judge is shameful
Being a school principal is shameful
Eating meat is shameful
Having activist judges isshameful
Having conservative judges is shameful
Posting this commentary is also shameful
posted by Postroad at 4:41 AM on April 26, 2006

BackwardsHatClub says: Do I believe homosexuals should have special treatment of some sort? Nope. The same treatment is fine by me.

Glad to hear your support for gay marriage and equal civil rights for gays and gay couples!

Actually, I support those two things, but disagree with censoring unfairly the shirt. Sure, the guy who's wearing it is a goober, but there's no such thing as censoring 'hate'. Hate is a perspective. You might be able to censor language in a school setting, but if I went up to a teacher and told them in a non-disruptive matter that they were the scum of the earth in a non-profanity-laced way, I should not be disciplined.

'Hate' is not a valid reason to prevent someone from expressing their opinion, less we slide into the speech allowed is dependant upon who is in power.
posted by Lord Chancellor at 4:47 AM on April 26, 2006

Schools already implicitly support the "Christian Agenda" -- there are all sorts of Christian clubs and events, at least there were where and when I was in high school. It was, in fact, quite easy to feel put upon by these kids because there were so damn many of them. The school is not giving the Day of Silence kids anything more or less than they have already afforded the Christian kids in the past -- the right to have their own organization and the right to hold events that are approved by the school as being non-disruptive and inclusive of any who wish to participate (at the same time not forcing participation).

The "Homosexuality is Shameful" kid is, for one thing, unfortunately narrow minded, but for another, is wearing a shirt with a message on it that many, many people will take as the equivalent of "God Hates Fags." Like the "God Hates Fags" crew, he is free to do this on the public street as much as he would like, but in a school setting where these kids are basically forced to be together, I can see where the LGBT kids and their supporters might be unnecessarily disrupted. This is a public school. They all have the right to be there and to obtain an education. The "Homosexuality Is Shameful" shirt does not forward that goal any more than cropped tops or going shirtless or wearing hats (all things that were prohibited by my highschool dress code). The fact that kids' choices in their clothing do not always jive with the goal of getting an education is reflected in the way that a lot of schools (even public ones where I live) have gone to a uniform.
posted by Medieval Maven at 5:03 AM on April 26, 2006

Why is one view favored over another, Reinhardt's rather unsound "minority status" explanation aside?

Because one view espouses the inherent dignity and worth of all students, and one view does not.

Would a shirt that said "Christianity is shameful" be okay?

What if the shirt said "Black skin is shameful"?

Many kids in my highschool sported t-shirts that proclaimed "It's a black thing, you wouldn't understand". The fact that they got away with this without any remonstrations may have something to do with the fact that our principal was black, and that the t-shirts were created for the "Unity" school-sponsored club.
posted by beth at 5:03 AM on April 26, 2006

Actually, I support those two things, but disagree with censoring unfairly the shirt. Sure, the guy who's wearing it is a goober, but there's no such thing as censoring 'hate'. Hate is a perspective.

So is being a dick. A common denominator in the summaries Pontias Pilate provided is the distuptive effect. It seems pretty clear to me that one kid wearing a shirt saying "homosexuality is shameful" on a day in which a large part of the student body is expressing support for homos is maybe not so much exercising his right of political dissent, but is a big fat FUCK YOU to provoke everyone in the school who disagrees with him and who he doesn't like.

To me, it's not about free speech so much as causing a disruption. Schools are not free speech zones, they are schools. Order has to be the defining principle.
posted by three blind mice at 5:04 AM on April 26, 2006

So, tbm, you'd be siding with the school administration that (I don't remember) suspended / sent home to change clothes the kid that wore a Pepsi shirt on Coke day?
posted by beth at 5:07 AM on April 26, 2006

According to this article, the t-shirt Harper wore also said "Be ashamed," and "Our school embraced what God has condemned."

The article also has a picture of Harper. He's one of those kids where all you have to do is look at him to know he's an asshole.

That said, the ruling was wrong. Free speech is free speech. Gay-positive messages are a lot more unpopular than the alternative at an awful lot (most?) high schools in the US, and I don't think it's a good idea to restrict speech if we can help it (I know sometimes we can't help it.) Unpopular speech should be allowed if possible.
posted by fugitivefromchaingang at 5:32 AM on April 26, 2006

So, tbm, you'd be siding with the school administration that (I don't remember) suspended / sent home to change clothes the kid that wore a Pepsi shirt on Coke day?

No. I'd send home a kid who was wearing a HOMOSEXUALITY IS SHAMEFUL T-shirt the day on which the student body has decided to express support for the gay and lesbian agenda because this is unnecessarily provocative. Like I'd do with any kid who was disrupting the order within the school and who refused to stop.

I don't know what I'd do on Coke day, because you have to look at the disruptive effect on a case by case basis. From the school's perspective, the matter is not free speech, it's order in the classrooms.

Danish newspapers, XQUYZPHYR, are not schools.
posted by three blind mice at 5:40 AM on April 26, 2006

If you believe that homosexuals have the right to be treated as a minority group

I am failing to see how being part of a group that is in the minority does not make you part of a minority group.
posted by Astro Zombie at 6:06 AM on April 26, 2006

Free speech zone? Maybe we need some signs indicating where it is acceptable to have an opinion and where it is not, just so we're sure when we're allowed to think.

I don't agree with the desicion and I think the kid who wore the shirt is a jackass.
posted by Talanvor at 6:11 AM on April 26, 2006

AZ, my guess is that some people think that being gay is something you can choose, unlike your skin colour (which is how most other minority groups are defined).
posted by antifuse at 6:15 AM on April 26, 2006

He was just expressing his opinion. His stupid, stupid opinion.
posted by Astro Zombie at 6:16 AM on April 26, 2006

When LGBT students (or people in general) make their presence felt, they get bashed. The message? Saying something pro-LGBT is not okay.

...so Day of Silence happens, and no one says anything. And they still get bashed. The message? Anything you do can and will be used against you, in the court of hate-monger's public opinion.
posted by andreaazure at 6:16 AM on April 26, 2006

And this is why I believe in school uniforms. Actually it's only one reason why I believe in school uniforms.
posted by Decani at 6:25 AM on April 26, 2006

XQUZYPHYR: The language of self-martyring attention whoring is universal.

Talanvor:I don't agree with the desicion and I think the kid who wore the shirt is a jackass.

So getting sent home for being acting like a self-martyring, attention whore, jackass in school is wrong?

Sorry mates, but it smells to me like wet, wooly-headed misguided liberalism when "free speech" is valued over basic order and respect in public schools.
posted by three blind mice at 6:26 AM on April 26, 2006

Well, looks like they've moved beyond homemade t-shirts and now have a "Day of Truth" scheduled the day after the "Day of Silence."
More here.
posted by Biblio at 6:39 AM on April 26, 2006

AZ, my guess is that some people think that being gay is something you can choose, unlike your skin colour

Well, you'd still be in the minority of people who theoretically choose their sexuality, when the majority theoretically chooses to be straight. And Jews can choose not to be Jewish, but we're considered to be a minority group.

No, I think it's more about refusing a group any legitimacy at all, even the legitimacy of being defined in relation to the majority.
posted by Astro Zombie at 6:44 AM on April 26, 2006

Because one view espouses the inherent dignity and worth of all students, and one view does not.

Brotherhood by force rarely works and usually backfires.

As far as the shirt, he's got the right to say whatever he wants, ultimately, but he better be prepared to accept the reactions he gets. Maybe somebody could drive him to Chelsea and let some gay gym rats loose on him.
posted by jonmc at 6:49 AM on April 26, 2006

I'm not going to read all this crap, but I'd like to weigh in that homosexuality is shameful in our society, at present (except maybe in SF). It shouldn't be, but if I saw someone wearing a shirt that said that, I'd agree with them and ask them what things they were doing to change that. I might pat them on the back heartily and cheer them for having the courage to make such a statement, just to make them extra uncomfortable.

So, you know, the government doesn't have to regulate everything. A sharp with and a willingness to embarass someone else can go a long way.
posted by Eideteker at 6:53 AM on April 26, 2006

"Maybe somebody could drive him to Chelsea and let some gay gym rats loose on him."

Or not. I thought using violence against people with differing viewpoints was supposed to be a bad thing.

Y'know, tolerance and all that shit.
posted by mr_crash_davis at 7:00 AM on April 26, 2006

Hell, I wouldn't encourage them to usew violence, Crash. Just let him know what it feels like to be outnumbered and surrounded by people who hate and fear you.
posted by jonmc at 7:06 AM on April 26, 2006

Anyone else notice the picture from the article fugitivefromchaingang linked to? The kid didn't have a t-shirt with the sayings, he was wearing a shirt with pieces of masking tape on it.

After reading the case, I can see where both sides are coming from. Let's take it to the possible positive conclusion, though. In the Tinker case, the students were expressing their opinion on a democratic process. In this case, a student is expressing his opinion that a minority should not be silently tolerated -- for an aspect of their being.

What's the end result that Tyler Chase Harper wants to happen from wearing the shirt? Does he want the (presumably) homosexual students to not attend his school? To renounce their ways? The school has already shown that the district, if not the local government, is willing to protect students from harassment and acknowledge that they are willing of, at the very least, silent tolerance. Does he want them to be verbally accosted, or just offended by his shirt? Or to just sit in class feeling shame? The school district was not the aggressor here, and it may have been more clear-cut if they had sent the kid home. As it is, it looks like they felt he was worthy of protection as well.
posted by mikeh at 7:07 AM on April 26, 2006

There's a relatively easy way to sort through all the chaff surrounding this decision, including the "high school" angle: This is one of the few major First Amendment decisions that I'm aware of that makes a deliberate distinction based on the content of the message. Historically, First Amendment laws have limited speech based on time, place, and manner, but the requirement that the restrictions be "content neutral" has always remained. This is why attempts to stop KKK marches always fail.

Reinhardt could have set up a content-neutral requirement that would have covered the school district's decision in this case, and prevented the student from wearing the shirt, but he chose to go a (huge) step farther (beyond what the school district even argued), and specifically find that some "controversial" messages are OK and some not, depending on the political content of the message (and, more specifically, who the message is directed towards). I would submit that there's no rational basis for the distinction, and that it doesn't square up with any existing Supreme Court law. Any First Amendment purist or small-l liberal should quickly see the danger in that line of reasoning.
posted by pardonyou? at 7:10 AM on April 26, 2006

As has been said before, this is a school environment. Whatever principles of law function in the country, the school rules and regulations must be ratified by an independent power of law, or at least be ratified de facto by remaining unchallenged. In this instance, if the teacher or headmaster decided that this was unsuitable for a school environment, aren't they within their power to do so? Like: *bing-bong* "The hockey team just won a victory over Greentown Middle School. Kudos to them. And, on a lighter note, all students will now undergo 8 hours of mandatory after-school coal mining." *bing-bong*
posted by malusmoriendumest at 7:12 AM on April 26, 2006

Is that Mr. Harper on the dayoftruth.org site? (From biblio )
posted by fugitivefromchaingang at 7:17 AM on April 26, 2006

I hadn't seen the Harper kid before I went to that site, but after a quick google, I'll say it's either him or a carefully chosen lookalike. Those crafty homophobes!
posted by Biblio at 7:26 AM on April 26, 2006

In this instance, if the teacher or headmaster decided that this was unsuitable for a school environment, aren't they within their power to do so?

No, not in a public school in the U.S. The First Amendment applies because it's government action. There are, therefore, constitutional limits on a teacher or principal's ability to curtail speech.
posted by pardonyou? at 7:28 AM on April 26, 2006

You know what bugs me about the "day of truth" response to this (besides the fact that these idiots are claiming to know "the truth?") ? The "day of silence" is a grass-roots thing, started by gay youth and their allies. The "day of truth" is astroturf, sponsored by a big conservative group. What I want to know is what happens if kids put masking tape on their shirts saying "church-sanctioned bigotry is shameful" on the "day of truthiness?"
posted by Biblio at 7:33 AM on April 26, 2006

School uniforms. It's the only way.
posted by Witty at 7:33 AM on April 26, 2006

Sorry mates, but it smells to me like wet, wooly-headed misguided liberalism when "free speech" is valued over basic order and respect in public schools.

Exactly.

What would have happened in my school, circa late-1980's, is the prinicpal or whoever whould have ripped the tape off the shirt and told the kid to get his ass off to class... concentrate on studying and doing school work and save the "messages" for after school. Take your baseball cap off, pull up your pants and pick up your feet when you walk. {wink}
posted by Witty at 7:41 AM on April 26, 2006

And that would have been the end of it... as it should be.
posted by Witty at 7:41 AM on April 26, 2006

I'm also in favor of school uniforms. I wore one when I was a little boy in Bath, England, and loved it.
posted by Astro Zombie at 7:46 AM on April 26, 2006

you wore your uniform in the bath? that seems cumbersome and unsanitary.
posted by jonmc at 7:49 AM on April 26, 2006

Nonsense. It kept my unform crisp and smelling nice. Of course, these were magical Roman baths.
posted by Astro Zombie at 7:52 AM on April 26, 2006

If they can hold a day that promotes their paticular agenda then any student or students should be able to express the opposite of it.
posted by BackwardsHatClub

All the gays have an "agenda".
The exact same "agenda" but you have to join the super secret gay club to kow it.
I know because I've seen "their" daily planners and it's truly wicked what "they" do.
Pedophiles the lot of "them."
And shameless libertines too!
God hates gays! (Fred Phelps told me so, so it must be true.)
Homophobia is our God-given right dammit.
:-)
posted by nofundy at 7:58 AM on April 26, 2006

What would have happened in my school, circa late-1980's, is the prinicpal or whoever whould have ripped the tape off the shirt and told the kid to get his ass off to class... concentrate on studying and doing school work and save the "messages" for after school.

How do we know that this is not what happened to Mr. Harper?

Also, if we're supposed to be "concentrat[ing] on studying and doing school work and sav[ing] the 'messages' for after school," then why was the school allowing the Day of Silence in the first place?

I think the Day of Silence is great. But I don't know who gets to decide that the Day of Silence is appropriate and Harper's own little Day of Bible is not. Apparently the Ninth District Circuit. What if the Ninth Circuit were all conservatives?
posted by fugitivefromchaingang at 7:59 AM on April 26, 2006

Just let him know what it feels like to be outnumbered and surrounded by people who hate and fear you.

For a minute, I thought you just wanted him to know what it was like to be surrounded by buff, hardbodied men...
posted by namespan at 7:59 AM on April 26, 2006

It feels surprisingly good.
posted by Astro Zombie at 8:02 AM on April 26, 2006

Last time I looked, schools were, for better or worse, able to do this kind of thing legally. I think the decision is correct, but the reasoning is faulty. Remarks that focus on "students' minority status such as race religion and sexual orientation" are not any kind of special case. The high school, however, is allowed to limit free speech in the school if it decides that the speech will be disruptive. If the kid had worn a t-shirt that says "The principal and tecahers are all ugly idiots," the same thing would have happened.

I'm not saying I agree with that, but that is the way the courts have ruled in recent years.
posted by spira at 8:02 AM on April 26, 2006

Three Blind Mice: accusing Judge Kozinski of "wet, wooly-headed misguided liberalism" is . . . well hilarious, actually. I spat diet coke on my keyboard. Judge Kozinski is a hero of the old-school right (not the neo-cons as much as the traditional conservatives and libertarians) second only to Justice Scalia, if even to him. He's a lot of things, but liberal isn't one of them.
posted by The Bellman at 8:04 AM on April 26, 2006

beth writes "Many kids in my highschool sported t-shirts that proclaimed 'It's a black thing, you wouldn't understand'. The fact that they got away with this without any remonstrations may have something to do with the fact that our principal was black, and that the t-shirts were created for the 'Unity' school-sponsored club."

What's wrong with such shirts? They don't degrade or demean any other group. They do assert a certain exclusivity of experience, which is not the same thing. I can't imagine what someone wearing such a shirt could be scolded about, black principal or no.
posted by OmieWise at 8:08 AM on April 26, 2006

I can't imagine what someone wearing such a shirt could be scolded about, black principal or no.

I can't decide. Certainly "It's a guy thing, you wouldn't understand" isn't too bad, and maybe it's my cowardly over-PC self showing, but I'd be cautious with "It's a white thing, you wouldn't understand".
posted by luftmensch at 8:11 AM on April 26, 2006

A lot of people are arguing that free speech is free speech, and the message "Homosexuality is shameful" is protected speech. This is true, and my first reaction too was that you cannot censor a message you disagree with, and a school cannot be a zone where only "correct" messages are allowed. However, I don't think this is the heart of the issue, because we are talking about a school. The consitutional limitations on speech are different.

A Klan rally is protected speech, and if you don't want to hear it, you can choose not to participate. If a student doesn't want to be subjected to hateful yet protected speech, at school, what are his options? Not receive an education?

Does the right to a non-hostile school environment trump free speech rights? That's what I think the issue here is. A hostile message is disruptive -- to those students it is directed against. And this is exactly what the "day of silence" is saying -- it's specifically about hostility against gays.

Something to think about ....

Is it free speech to *say*, "I have the right not to be oppressed at school". That is a message, after all. Standing up for yourself is speech, in this case. Can we be okay with holding that speech to a different level of protection than its opposite, oppressive speech?
posted by adzuki at 8:12 AM on April 26, 2006

like spira said.

Pilate: Tinker was by no means the last word on this subject. Also remember that Tinker was also about expressive speech and not about a direct message saying "War Mongerers suck - stop the war in Viet Nam you filthy pigs."

Did your law school celebrate Tinker Day last week?
posted by pwedza at 8:16 AM on April 26, 2006

Is it free speech to *say*, "I have the right not to be oppressed at school". That is a message, after all. Standing up for yourself is speech, in this case. Can we be okay with holding that speech to a different level of protection than its opposite, oppressive speech?

Okay, but certain Christians say that any pro-gay or gay-equality message is oppressive speech to them. They use these exact words (they're good at co-opting victimy language.) You can say that that's stupid, but how do we decide what's oppressive and what's not?
posted by fugitivefromchaingang at 8:17 AM on April 26, 2006

I just thought of an interesting parallel situation.

Christian students are feeling increasingly marginalized by the liberal education system, and decide to have a "day of belief". Their message is that they should be able to go to school while still being Christian, and not feel slighted, marginalized, ostracized, and they don't want their religion insulted, attacked, or dismissed in the classroom.

A gay student comes to school wearing a t-shirt that says "The Bible is fiction."

If you think the school has a right to (and would) send him home as well, then you should agree that this decision is NOT about the content of the speech. It's not treating one side differently.
posted by adzuki at 8:20 AM on April 26, 2006

Actually, a closer parallel would be if our hypothetical homsexual wore a t-shirt saying "Christianity is shameful." And I suspect the hypothetical gay student would likewise be asked to get rid of the shirt.
posted by Astro Zombie at 8:23 AM on April 26, 2006

Homophobia is our God-given right dammit.

Though nofundy meant this tongue in cheek, I actually agree. Believing in Communism, the tooth fairy, true love, Christianity, liberal democracy, or Utilitarianism are all our God-given rights. Expression might be curtailed due to the context where, when, and how the message is presented but never, never the content of the message. Or so I believe in public schools because they are government sponsored and mandatory.

If there is anything I believe in this world, it's that people have the right to be idiots and jerks. I'm not being overly permissible I feel. Freedom of speech is the foundation upon which our democracy rests. Unless it's blatant, I would sacrifice order for that freedom in civil society.
posted by Lord Chancellor at 8:23 AM on April 26, 2006

There is zero distinction between the facts in this case and a case where a school invited the Army recruiters to speak to an assembly and one kid chose to wear a shirt with a peace symbol on the front and the text "Being in the Army is shameful." Or a kid, denied the right to buy a ticket with a same sex date, who goes to the prom wearing a button saying "heterosexism is shameful."

The precedents allow schools a relatively broad mandate to exclude political messages from campus as disruptive of the school's non-political mission to educate minor's at taxpayer expense.

This school invited in the politics itself -- making a deliberate decision not only to endorse a particular political message but to dispense with part of its mission of non-political education in favor of indoctrinating students in the correctness of the mission. The gall of the school is truly unlimited to try to censor a non-violent and silent dissent from the message and its indoctrination.
posted by MattD at 8:24 AM on April 26, 2006

luftmensch writes "but I'd be cautious with 'It's a white thing, you wouldn't understand'."

As would be appropriate. I'm torn about the case in question here, although not about free speech in fully public settings-about that I'm an absolutist. I'm always struck, though, in conversations that range more broadly than the law and which admit to a greater diversity of opinion, how people seem to want to ignore the very different situations of different groups in this country. "It's a White thing, you wouldn't understand," is a different statement than "It's a Black thing, you wouldn't understand," because the history of racism in the US makes the implied results different. White exclusivity has had disastrous and evident material and social affects on African Americans. Shirt which seem to promote White exclusivity cannot at the same time claim exemption from that history. I'm not suggesting that such a shirt should be banned, but acting as if all words are equal, as if there is no history behind the use of language for derogatory purposes is just inane. Postroad's comment above highlights this: there has been no systematic oppression and violence directed at teachers or people wearing braces (teasing and bullying are not quite the same), so statements about their shamefulness are not simply not equivalent. Not acknowledging the difference really helps no one.
posted by OmieWise at 8:25 AM on April 26, 2006

To add on though . . . the school and court could have found a ruling that protected the ability to maintain order without resorting to the judgement of the content of the message. There isn't any 'oppresive' speech, just like I don't have a right not to be taunted by people I work with our go to school with. Not legally anyway. Perhaps administratively though.
posted by Lord Chancellor at 8:29 AM on April 26, 2006

Okay, but certain Christians say that any pro-gay or gay-equality message is oppressive speech to them. They use these exact words (they're good at co-opting victimy language.) You can say that that's stupid, but how do we decide what's oppressive and what's not?

The existance of rights of others cannot be oppressive. It's that simple. You are not oppressed if you are forbidden from denying to others the same rights your claim for yourself.

"Rights" are the things which we believe are inalienible and belong to the people.
posted by adzuki at 8:30 AM on April 26, 2006

MattD writes "There is zero distinction between the facts in this case and a case where a school invited the Army recruiters to speak to an assembly and one kid chose to wear a shirt with a peace symbol on the front and the text 'Being in the Army is shameful.' Or a kid, denied the right to buy a ticket with a same sex date, who goes to the prom wearing a button saying 'heterosexism is shameful.'"

That's not true, there is a difference. There's a history of homosexuals being denied rights, and having violence directed at them, because they're homosexual. Given that history, there's a legitmate argument to be made that the shirt might provoke such violence, which often seems to be rooted in such sentiments. That doesn't decide the case one way or another, but not acknowledging that difference seems intellectually cowardly: it not only elides painful history which is difficult to account for, it makes of the problem something significantly less complex.
posted by OmieWise at 8:30 AM on April 26, 2006

MattD writes "There is zero distinction between the facts in this case and a case where a school invited the Army recruiters to speak to an assembly and one kid chose to wear a shirt with a peace symbol on the front and the text 'Being in the Army is shameful.' Or a kid, denied the right to buy a ticket with a same sex date, who goes to the prom wearing a button saying 'heterosexism is shameful.'"

That's not true, there is a difference. There's a history of homosexuals being denied rights, and having violence directed at them, because they're homosexual. Given that history, there's a legitmate argument to be made that the shirt might provoke such violence, which often seems to be rooted in such sentiments. That doesn't decide the case one way or another, but not acknowledging that difference seems intellectually cowardly: it not only elides painful history which is difficult to account for, it makes of the problem something significantly less complex.
posted by OmieWise at 8:30 AM on April 26, 2006

If they don't like when students wear dumb t-shirts they should just have uniforms. No one complained about those hideous God's Gym [sic] and Big Johnson t-shirts when I was a lad. It's much better for the kid to be known as a total asshole than it is to restrict his Constitutionally-protected speech. And if he puts some tape on his uniform . . . well, I don't know, to be honest.
posted by Optimus Chyme at 8:31 AM on April 26, 2006

"Is that a pledge pin on your uniform", he says spittingly.
posted by Witty at 8:38 AM on April 26, 2006

Actually, a closer parallel would be if our hypothetical homsexual wore a t-shirt saying "Christianity is shameful." And I suspect the hypothetical gay student would likewise be asked to get rid of the shirt.

Good point.

I think most on the right would agree that they, and their kids, have the right to go to school without being told Christianity is wrong. They can and do consider attacks on their religion oppression.

Yet they will deny the same protections to homosexual students.
posted by adzuki at 8:39 AM on April 26, 2006

I'm always struck, though, in conversations that range more broadly than the law and which admit to a greater diversity of opinion, how people seem to want to ignore the very different situations of different groups in this country. "It's a White thing, you wouldn't understand," is a different statement than "It's a Black thing, you wouldn't understand," because the history of racism in the US makes the implied results different. White exclusivity has had disastrous and evident material and social affects on African Americans. Shirt which seem to promote White exclusivity cannot at the same time claim exemption from that history. I'm not suggesting that such a shirt should be banned, but acting as if all words are equal, as if there is no history behind the use of language for derogatory purposes is just inane. Postroad's comment above highlights this: there has been no systematic oppression and violence directed at teachers or people wearing braces (teasing and bullying are not quite the same), so statements about their shamefulness are not simply not equivalent. Not acknowledging the difference really helps no one.

This is absolutely true. There are, as you say, "very different situations of different groups in this country." And of course, the obvious one, the one that tends to come up because it is so settled on at this point, is racism, and the different situations of blacks and whites in America and in American history.

The reason why the law seeks to, nevertheless, aim for a neutrality--why we ban discrimination on the basis of race, rather than banning discrimination against black people, for instance--is because who gets to decide what groups are marginalized/oppressed, in cases that aren't as clear-cut as the black/white thing? You say "there has been no systematic oppression and violence directed at people wearing braces." Well, you haven't gotten them together and organized them. I bet if you did, and they thought they had something to gain, they'd discover that they are very much oppressed indeed.

Conservative/fundamentalist Christians know this, and they are trying as hard as they can to become the next minority group deserving of protections and a "disadvantaged," hence protected, status. They say their ritual observations are under attack and hold "War on Christians" conferences. You and I might know that Christians are hardly a disadvantaged minority in America. But the point is, who gets to decide who is and isn't? Fundamentalist Christians are, technically, a minority. And they are hard at work making the case that they, not gay people, ought to have "Days of Silence" and the like.

This is why we should avoid, in law, crediting one group or another with a disadvantaged status. Because anyone can claim to be disadvantaged, and who decides which claims are the most valid? Better to just say, This categorical distinction is irrelevant.
posted by fugitivefromchaingang at 8:44 AM on April 26, 2006

I don't really understand how the majority misused prescendent: Tinker seems to say, "I ruled A because B and C were not present". Reinhardt claims, "In this case, B may or may not be present, but C definitely is, so I will rule Not-A." That seems pretty clear-cut to me.
posted by muddgirl at 8:48 AM on April 26, 2006

The existance of rights of others cannot be oppressive. It's that simple. You are not oppressed if you are forbidden from denying to others the same rights your claim for yourself.

"Rights" are the things which we believe are inalienible and belong to the people.

What right is Harper denying to others that he is claiming for himself? The right not to be denigrated in school? He saw the Day of Silence as denigrating to himself. He's an idiot, but that doesn't mean he didn't feel denigrated.

So it is an inalienable right, one that belongs to the people, to hold a Day of Silence in their public high school?
posted by fugitivefromchaingang at 8:49 AM on April 26, 2006

Okay, but certain Christians say that any pro-gay or gay-equality message is oppressive speech to them.

Yeah but that's bullshit. From what I've seen the pro-gay / gay-equality message is something like "we have a right to be ourselves and not be harassed because of our sexual orientation" and not anything like "Christians should re-examine their sinful ways and renounce Christianity". Homosexuals don't try to get Christians to not be Christian, in other words. The eliminationism is all one-way.

Brotherhood by force rarely works and usually backfires.

Excuse me, jonmc? Are you meaning to suggest that we should have no anti-discrimination laws or anything of the sort? Do you think the civil rights struggles of the 1960s were misguided, useless, and/or harmful?

I think it is reasonable to suggest that all students deserve to be tolerated for who they are, and protected from harassment. (For definitions of "who they are" that include refraining from harassing others, of course).
posted by beth at 8:49 AM on April 26, 2006

I bet if we interview the people who posted here that believe that the kids have some unfettered freedom of speech, we would find that most of them are either still in school, or just out of school and that almost none of them actually have children of their own in school. They are children to be raised. They are not autonomous and do not have the rights that adults do. We have to make decisions for them in their best interests. Their best interests are not printing hate messages on their shirts and wearing them to school to get a rise out of people.

As far as WHY he his speech is not protected, and rightfully should not be protected, please read this letter, it states the reasons far more eloquently than I ever could. A letter to Jay Leno by Jeff Whitty.
posted by urlnotfound at 8:49 AM on April 26, 2006

I'm not suggesting that such a shirt should be banned, but acting as if all words are equal, as if there is no history behind the use of language for derogatory purposes is just inane.

You nailed it.
posted by dead_ at 8:51 AM on April 26, 2006

Okay, but certain Christians say that any pro-gay or gay-equality message is oppressive speech to them.

Yeah but that's bullshit. From what I've seen the pro-gay / gay-equality message is something like "we have a right to be ourselves and not be harassed because of our sexual orientation" and not anything like "Christians should re-examine their sinful ways and renounce Christianity". Homosexuals don't try to get Christians to not be Christian, in other words. The eliminationism is all one-way.

Of course it's bullshit. You don't censor people because what they're saying is bullshit. Right? You call them out on it, sure. But allowing the Day of Silence (not bullshit) means you have to allow Harper (bullshit). Because neither of them pass the test of "concentrate on studying and doing school work and save the "messages" for after school," to borrow from Witty's principal.
posted by fugitivefromchaingang at 8:56 AM on April 26, 2006

Conservative/fundamentalist Christians know this, and they are trying as hard as they can to become the next minority group deserving of protections and a "disadvantaged," hence protected, status.

They're not "disadvantaged", but they are deserving of protection. They kind of are a minority. They're ridiculed by intellectuals and in academia. When Bush says that God speaks to him, the media eats it up. People don't respect them.



I disgree. I think we simply need to understand and be wary what disadvantaged status means -- and it ought to mean that the groups have an extra vigilant protection of their rights. Fundamentalists deserve first amendment protection. When they spout the worst, most hateful fire-and-brimstone speech, we need to make sure that this is protected.

What we need to avoid the situation where the disadvantaged group gets to define their own remedy. In this case, we need to make sure that fundamentalists do not, as part of their first amendment protection, the right to be free of gays.

They can denounce gays, and they ought to be able to do this without running afoul of speech laws. But they cannot be given the right to silence gays, outlaw gays, or be protected from the presence of gays. They don't have the right to go to public school without gays present. The problem is that they, in the name of practicing their religion, seem to want the right to harass and oppress gays.

They've set up the idea that rights are a zero-sum game. This is the nonsense that we have to avoid. We can still do this while acknowledging that a group is in danger of having its rights ignored; in fact, this is what's important.
posted by adzuki at 9:05 AM on April 26, 2006

acting as if all words are equal, as if there is no history behind the use of language for derogatory purposes is just inane.

You nailed it.

Did anyone say that we should "act as if all words are equal?" Or are some people just uncomfortable with the Ninth Circuit deciding what words are "right?" The Ninth Circuit happens to be liberal. What if it weren't?

We shouldn't act as if all words are equal, and we should deal with the history behind the use of language for derogatory purposes. And since history is not on Harper's side, if we keep doing so, eventually Harper won't be able to wear a shirt like that to school--not because the Ninth Circuit said he can't, but because it will be akin to wearing a Black Skin is Shameful shirt, and he'll be ostracized/kicked in the ass.
posted by fugitivefromchaingang at 9:07 AM on April 26, 2006

adzuki--I'm not sure we disagree on anything then.

Cool.
posted by fugitivefromchaingang at 9:10 AM on April 26, 2006

KKK rallys are legal, lynchings are not.

So symbolic violence is legal, whereas non symbolic violence isn't? Way to go, first amendment!
posted by Sijeka at 9:10 AM on April 26, 2006

I don't think there's a very good argument for supressing the shirt, based on the precedents quoted in the (excellent) original post. Making some "Hate is shameful" t-shirts would have been a much more appropriate response.
posted by EarBucket at 9:11 AM on April 26, 2006

But allowing the Day of Silence (not bullshit) means you have to allow Harper (bullshit).

I disagree. "We support our minority students' right to be themselves and not be harassed" is a totally different message than the eliminationist Christian rhetoric on the kid's shirt. One is specifically designed to make other students at the school feel unwelcome and one is a message of tolerance and respect.

I find it troubling that some people find the messages to be on equal footing.

It seems pretty fair to me to ban any message designed to be derogatory, hateful, harassing, or offensive to other students. Hell, ban *all* shirts with any words on them *at all* and your problem is solved. And you don't even have to go to the extent of uniforms.

(and ban buttons / stickers with words on them too I guess)
posted by beth at 9:12 AM on April 26, 2006

a)
It seems pretty fair to me to ban any message designed to be derogatory, hateful, harassing, or offensive to other students.
b)
Hell, ban *all* shirts with any words on them *at all* and your problem is solved. And you don't even have to go to the extent of uniforms.
(and ban buttons / stickers with words on them too I guess)


The thing is, in today's society, with everybody's "right" to be offended, if you want a), you're going to have to institute b).
posted by fugitivefromchaingang at 9:14 AM on April 26, 2006

Sorry mates, but it smells to me like wet, wooly-headed misguided liberalism when "free speech" is valued over basic order and respect in public schools.

That's funny, I would have thought acknowledging someone's constitutional rights would be counted as basic order and respect.
posted by jon_kill at 9:14 AM on April 26, 2006

I bet if we interview the people who posted here that believe that the kids have some unfettered freedom of speech, we would find that most of them are either still in school, or just out of school and that almost none of them actually have children of their own in school. They are children to be raised. They are not autonomous and do not have the rights that adults do. We have to make decisions for them in their best interests. Their best interests are not printing hate messages on their shirts and wearing them to school to get a rise out of people.

And who has that responsibility to teach them and look after their best interests?

That's right: their parents, not the state. We have to make decisions for them? Fuck that. Who am I to tell another person what to wear? He's not my kid. He's not the property of the state. If you have a problem with nasty little bigots, take it up with mom and dad instead of trying to silence a message you don't like.
posted by Optimus Chyme at 9:18 AM on April 26, 2006

So symbolic violence is legal, whereas non symbolic violence isn't? Way to go, first amendment!
posted by Sijeka at 9:10 AM PST on April 26

I think that's a pretty good argument in favor of free speech, despite your sarcasm. Far better to let them blow off steam in their costumes than to actually hurt someone.
posted by Optimus Chyme at 9:20 AM on April 26, 2006

Optimus: ever hear the phrase in loco parentis?
posted by beth at 9:21 AM on April 26, 2006

I do think symbolic violence can be as harmful (granted, in different ways) than non symbolic violence, so I'm very confused about it.

Symbolic domination was used against women for centuries and it worked oh so well.

I see both side of the debate, but also think my freedom to say openly racist of homophobic, misogynist things is limited to where the freedom of others begin (i.e, the freedom to to hear you're hated by jesus everyday because you're a 'dirty fag').
posted by Sijeka at 9:25 AM on April 26, 2006

beth, as usual, you're confusing any criticism of political correctness as support for discrimination. I'm not talking about legalities here. We can pass all the laws we want, but that's only half the battle, we're still left with a society full of people who hate and fear eachother. And forcing people to sit in a circle and sing Kumbaya and pretend otherwise will backfire.
posted by jonmc at 9:26 AM on April 26, 2006

Beth, I'm familiar with the concept of in loco parentis, but it's simply not always applicable. We don't allow teachers or administrators to spank kids or go make them wash their cars or tell them what to eat or any of a million things parents can do but school employees can't.

I see both side of the debate, but also think my freedom to say openly racist of homophobic, misogynist things is limited to where the freedom of others begin (i.e, the freedom to to hear you're hated by jesus everyday because you're a 'dirty fag').
posted by Sijeka at 9:25 AM PST on April 26

How long shall we put people in prison for saying homophobic things? And how long shall we put you in prison because I find your recklessness with freedom offensive?
posted by Optimus Chyme at 9:31 AM on April 26, 2006

Kalessin, I understand where you're coming from, but you can't legislate tolerance. You should report all threatening communications you have to the police, but you can't stop them from being assholes.
posted by Optimus Chyme at 9:33 AM on April 26, 2006

The language of the decision seemed mighty haphazard to me -- the T-Shirt constituted a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."

Self-esteem? WTF? Since when did protecting that become a constitutional right? The notion that protecting someone's self-esteem is necessary flies in the face of the first ammendment.
posted by Heminator at 9:36 AM on April 26, 2006

Optimus - It's fine, I understand your point. But, living in a country where hate speech is illegal, I also see the good in limitation of it when it is violent and push people to violence or hate.

I am not advocating for censorship, but tolerance. Hate speech isn't tolerant.

If you think a black man being savagely beaten up because of is race is bad in essence, why would you not think that a white man telling to his face that he's a less than nothing shouldn't be reprehensible by law? Because the victin has no bruises to show for it?
posted by Sijeka at 9:39 AM on April 26, 2006

[can't type at all]
posted by Sijeka at 9:40 AM on April 26, 2006

a white man telling to his face that he's a less than nothing shouldn't be reprehensible by law?

the problem is where does it all end? and who gets to decide what statements are illegal and by whom?

the very idea of saying something being illegal chills me to the bone anyway.
posted by jonmc at 9:42 AM on April 26, 2006

There is, and always has been, a difference between gay bashing and other forms of hate: you can only identify the gay people who are honest about themselves. That's the entire point of the Day of Silence protest (which is today, by the way): gay kids and their friends pushing back on an oppressive majority, using their silence to say, "OK, if you're going to make me be silent about my sexuality to avoid being beaten or discriminated against, I'm going to be silent about everything today so you can imagine what my world is like."

Not for nothing, but this "protest" needs tacit school administration support: refusing to speak in answer to a teacher or administrator would be viewed, in most schools, as "disruptive," despite the obvious fact that it's simply a lack of speech, not offensive speech. (Any accompanying T-shirt wiht an offensive message is merely theoretical in this case.)

Day of Silence is gay kids saying, "You force us to be silent about an important part of our lives to avoid trouble, so now we're taking it beyond that to show you what that's like." This kid Harper's shirt, on the other hand, had homemade masking tape labels on it saying "Homosexuality is shameful," "be ashamed," and "Our school has embraced what God has condemned." There is no mistaking this message: it's telling the gay kids and their friends who just demanded tolerance that they shouldn't have it - that they deserve to be marginalized and ashamed of who they are.

The first is a message from students who are tired of being afraid to enjoy the same speech about dating and friends and who's "cute" that the majority employs without fear. The second is a message from that majority that they'd damn well better be afraid and never forget it. The homemade T-shirt is not a statement that says "I am a Christian" or "God loves everyone" or "I disagree with you." It says "you'd damn well better not come out of the closet or we'll make you wish you never had," and anyone who pretends otherwise is either being disingenuous or has never been through this or known someone who has.

Attempts to compare this to something like "black skin is shameful" always fail, because everyone can see who has black skin. The Day of Silence is about being different and having to pretend you're not, simply to protect yourself against the Tyler Chase Harpers of your school. The analog isn't a T-shirt that says "Christianity is shameful," the analog is T-shirt that says "Left-handedness is shameful," a position that was also very popular and presumed to be Biblically-inspired until about 60 years ago.

If the school district has judged that the Day of Silence is not disruptive and is just kids expressing their First Amendment rights, then a homemade T-shirt saying "you'd better not express those rights or we'll know who you are," and that is what this homemade T-shirt says whether you recognize it or not, is inherently disruptive. It's not disagreement, it's condemnation of those who fail to be silent and hide their difference, in a public school that these kids are bound by law to attend (unless they have the money to get out of it).

Ironically, relevantly, and interestingly enough, the conservative-organized "Day of Truth" response to the Day of Silence sells a T-shirt that simply reads "Day of Truth" and "The truth will not be silenced." That's a simple statement of disagreement, or if interpreted in a way its organizers would not like, one of support for the concepts behind the Day of Silence in the first place. It's neither threatening nor harassing - and in my view, if a student got one of those shirts and put masking tape over it to replace the words "truth" with "hate," it would be equally disruptive and require the school to make him remove it.

Tyler Harper's First Amendment right to express hateful beliefs ends where the Fourteenth Amendment rights of the Day of Silence supporters begins. They have a right to a peaceful, harassment-free school where they're not forced into silence about themselves in ways that straight kids are not. His T-shirt called them out for shame and the wrath of God if they disagreed with him. He sought to tell them that their sexuality was shameful, and that they should be silent if they knew what was good for them, that they'd better pretend to be like him to avoid harassment in his school.

That's why the Ninth Circuit was correct and attempts to portray the shirt as "just a differing opinion" are wrong. You can disagree with someone without being disruptive or inherently threatening, as "Day of Truth" is showing. This T-shirt was neither.
posted by mdeatherage at 9:44 AM on April 26, 2006

If you think a black man being savagely beaten up because of is race is bad in essence, why would you not think that a white man telling to his face that he's a less than nothing shouldn't be reprehensible by law? Because the victim has no bruises to show for it?
posted by Sijeka at 12:39 PM EST on April 26 [!]

Because victimhood is his choice, and it's frankly disturbing that you don't see this, as it rests on the assumption of the helplessness of minorities. That black person has just as much of a right to fire back verbally, and think of the white person as an ignorant shit. Choosing to pay attention to what your hypothetical bigot says is his choice and any damage done to him in your example is his choice because nobody is forcing him to take the other person seriously in the slightest - and he should not.

When that white person inflicts physical violence or follows the black person around harassing him there is no choice, and that is when it becomes a crime.
posted by Ryvar at 9:51 AM on April 26, 2006

Did anyone notice the numbers on that Day of Truth site?

"Last year more than 1,100 students from over 350 schools participated and shared the Truth with their classmates."

Wow, a full 3 students or so from each of 350 schools (out of how many schools in all of the US?) So even though they have a professional-looking website and are backed by a large conservative organization, they're only getting less than 1% of students at less than 1% of US schools to buy their bullshit? Maybe there's hope for the US after all.
posted by Joakim Ziegler at 9:51 AM on April 26, 2006

Happy 18th Birthday! Now you can vote! And you've got Freedom of Speech now! Oh, you're still a senior in high school? Well, you'll get your Freedom of Speech in June, then.

Before we let a dumbass vote, we should probably give them a chance to have their dumbass ideas shot down in the Marketplace of Ideas. Raising our children in totalitarian environments and then expecting them to wake up one day and appreciate, support freedom is asinine.
posted by Skwirl at 9:59 AM on April 26, 2006

"And who has that responsibility to teach them and look after their best interests? That's right: their parents, not the state."

Actually that is wrong. You cannot just say everything a child does is under the domain of the parents, because parents do not always act in the best interest of their children or society as a whole. If they did, we would not need social workers, statutory rape and child pronography laws, juvenile detention centers or family court.

We DO have to make decisions for parents sometimes, because that is what has to happen in a civilized society. Who is the state to tell me how fast I can drive, or how many bullets are acceptable to randomly fire into a crowd, or if I can spray-paint swastikas on a Synagogue? There are boundaries set because people, taken individually are sometimes misguided.

"Taking it up with their parents" is exactly what happened and why there was a lawsuit.

As far as "silencing a message" goes, that is well within the scope of current law. You cannot yell "Fire!" in a crowded theater because it infringes upon the rights of others. The message being promoted here is to infringe upon the rights of others. "Your rights end where my nose begins" comes to mind. This is in a public school where the other children are a captive audience.

The child's rights are not limited once he leaves the school property and he can wear whatever shirt with whatever message he chooses. If his parents do not like that simple exchange for a free education, they should just choose to home school.
posted by urlnotfound at 10:07 AM on April 26, 2006

Yelling "fire" in a crowded theater is an example of Clear and Present Danger and not an example of "Your rights end where my nose begins."
posted by Skwirl at 10:22 AM on April 26, 2006

Choosing to pay attention to what your hypothetical bigot says is his choice and any damage done to him in your example is his choice because nobody is forcing him to take the other person seriously in the slightest - and he should not.

So you have no respect for the concept of a hostile environment caused by verbal abuse and harassment? So I'm guessing a white boss calling his black employee the n-word would be totally okay with you. Am I right? And male workers calling their female counterparts sluts and whores would be totally cool with you in your work environment....

There's out on the open street - that's one thing. But then there's a protected environment like a school or a workplace where you have to have some sort of standard to ensure fairness.

Or else you just let the bullies of the world have free rein... maybe that's the kind of world you like to live in, but for a lot of us, it's not.
posted by beth at 10:36 AM on April 26, 2006

Or else you just let the bullies of the world have free rein... maybe that's the kind of world you like to live in, but for a lot of us, it's not.

You have just summed up the libertarian philosophy. The libertarian response is that if you don't like where you work get a new job. The market will correct it.
posted by ozomatli at 10:44 AM on April 26, 2006

Actually that is wrong. You cannot just say everything a child does is under the domain of the parents, because parents do not always act in the best interest of their children or society as a whole. If they did, we would not need social workers, statutory rape and child pronography laws, juvenile detention centers or family court.

Hey guess what that's when children violate the rights or others or are themselves injured by the actions of another and has nothing to do with what I said. Can you read?

There is no right to not be offended.

So I'm guessing a white boss calling his black employee the n-word would be totally okay with you. Am I right? And male workers calling their female counterparts sluts and whores would be totally cool with you in your work environment....

Beth, that's a fine instance in which a civil suit is perfectly acceptable. But it's not a crime.
posted by Optimus Chyme at 10:46 AM on April 26, 2006

Or else you just let the bullies of the world have free rein... maybe that's the kind of world you like to live in, but for a lot of us, it's not.

Bullies who use insults can only harm you if you let them.

A world where everyone is free to speak their mind regardless of whether it offends someone else is the kind of world I want to live in.
posted by jsonic at 10:49 AM on April 26, 2006

"the school's non-political mission to educate minor's at taxpayer expense."

Heh. Wrong. There's nothing non-political about the school's mission.

And remember folks, it's easy to defend speech you agree with. The kid was being an asshole, but the school didn't have a right to do anything unless it was disruptive (and even then, that's often more of an authoritarian cludge than a real standard). The decision was wrong, and I'd rather if I didn't see so many liberals turn to authoritarianism when confronted with ideas they don't like.
posted by klangklangston at 11:01 AM on April 26, 2006

"So you have no respect for the concept of a hostile environment caused by verbal abuse and harassment? So I'm guessing a white boss calling his black employee the n-word would be totally okay with you. Am I right? And male workers calling their female counterparts sluts and whores would be totally cool with you in your work environment...."

Wow, Beth, are you shooting for some sort of bad-faith argument award?
posted by klangklangston at 11:04 AM on April 26, 2006

Also, allowing bigots to speak their mind makes them that much easier to identify and ignore/ridicule. Denying them the chance to express their ideas simply encourages their persecution/martyr complexes.
posted by jsonic at 11:04 AM on April 26, 2006

i've always had this naive idea that part of a school's mission is to educate the children in it on how to get along in a free society, where, among other things, people may say things that one disagrees with strongly

suspending a student for wearing a t shirt that some will dislike is not going to prepare students for life in a society where adults say such things and are not prevented from doing so

i can just imagine the uproar here if someone got suspended from school for wearing a t shirt that said "the iraq war is shameful" or "bush is shameful"

i don't know of any claim in this case where a student was unable to continue with his or her schooling because he or she felt "bullied" or offended by this t-shirt ... on the other hand, there was a student who was unable to continue because he wore the t-shirt

free speech means having to deal with opinions one doesn't like

and to those who believe that school uniforms is the solution ... i don't believe turning a generation of children into sock puppets is a good preparation for functioning in a free society
posted by pyramid termite at 11:10 AM on April 26, 2006

There exists no "freedom of speech" in a public school.
Period.
Children, so far as the law is concerned, are property of parents.
Add this:
Optimus: ever hear the phrase in loco parentis?
posted by beth
and you have teachers and school administrators are "parents" of pupils.
Simple and short enough?
posted by nofundy at 11:16 AM on April 26, 2006

There exists no "freedom of speech" in a public school.

then why is there so much history of litigation over this issue?
posted by pyramid termite at 11:22 AM on April 26, 2006

What is the big controversy here? Back when I was a high schooler, I'm sure I couldn't have worn a t-shirt that said "Fuck Fuck Fuck" to school. Nor could I have come in with leather chaps and nothing else. Schools should have some ability to regulate the clothes of the students to prevent blatant absurdities. Only a modicum of common sense is required here.
posted by Edgewise at 11:39 AM on April 26, 2006

There exists no "freedom of speech" in a public school.
Period.
posted by nofundy at 11:16 AM PST on April 26

You're fucking stupid and you shouldn't post anymore.
posted by Optimus Chyme at 11:41 AM on April 26, 2006

So you have no respect for the concept of a hostile environment caused by verbal abuse and harassment? So I'm guessing a white boss calling his black employee the n-word would be totally okay with you. Am I right? And male workers calling their female counterparts sluts and whores would be totally cool with you in your work environment....

Are you totally unfamiliar with the principle that there exists a seperation between public and private space, and that places owned by businesses (such as office space) are by definition private?

But let's leave that aside for a second. Even if your 'questions' had bearing on real life (which the don't, due to the above), you're missing two crucial points - most importantly that there are immediate consequences for that boss's actions. Namely, decent people will boycott whatever business the boss works for as a result of his actions, and he will soon be out of a job. He won't be going to jail, but his life is nevertheless ruined as a result of his actions.

Going a step further and leaving aside pragmatism for pure ideals, you're also missing that my litmus test for free speech vs abuse/harassment is very clearly choice. When that boss has the power to financially ruin the black person, that black person no longer has choice and the boss's actions therefore constitute abuse.

Back in real life - my concern isn't so much the workplace as it is about governmental coercion as a result of speech. I believe that a person should be permitted to think what they want, say what they want, and have the right to privacy of their thoughts. This is not intended as a statement about how people on the street or in the workplace respond and react to that person - this is about limiting the extent to which the state can interfere with them. The public school system is a part of the state. Hence my position.
posted by Ryvar at 11:42 AM on April 26, 2006

OC--Why be such a jerk?
posted by OmieWise at 11:48 AM on April 26, 2006

Namely, decent people will boycott whatever business the boss works for as a result of his actions, and he will soon be out of a job.

My dad uses a similar argument as a reason why businesses should be allowed to determine their own safety and environmental standards, and I have to say I find it very naive. It rests on the idea that decent people are a significant market force. They're not. Cheap and gullible people are though. "My chemicals cost 30 cents less per gallon" will always be more persuasive than "My competitor is an inveterate polluter and here is the proof."
posted by PinkStainlessTail at 11:50 AM on April 26, 2006

Why be such a jerk?

Because stating things that are demonstrably false is stupid. In addition, he hasn't read the thread, or he would know that I'd already responded to beth, and that plenty of people have brought up Tinker as well as other relevant cases. If he's not going to make an effort, there's no reason to be nice.
posted by Optimus Chyme at 11:55 AM on April 26, 2006

PST: I agree that in reality it is an insufficient argument by itself (as it would not hold water if the target were homosexual), but in the particular case beth mentioned it's true enough to bear mentioning along with the other, less situation-specific ones.
posted by Ryvar at 12:02 PM on April 26, 2006

Cheap and gullible people are though. "My chemicals cost 30 cents less per gallon" will always be more persuasive than "My competitor is an inveterate polluter and here is the proof."


Isn't this what is making Whole Foods Market such a success or driving the sale of hybrid cars which are pretty much a guaranteed money loser compared to the standard gas powered car? People will support causes with their dollar if you give them a chance to, government regulation takes that chance away and creates a society of gullible people who expect the government to make their moral choices for them.
posted by BackwardsHatClub at 12:11 PM on April 26, 2006

Beth: I know several European countries that you might feel more comfortable living. While I respect your right to hold those views I must strongly disagree with them and I think they are highly misguided.
posted by BackwardsHatClub at 12:13 PM on April 26, 2006

Optimus Chyme,

Thanks for sharing your opinion. I love you too.

The real world truth is that students, while in school, do not have freedom to publish, wear, or say things that adults might in a public space.
Case law supports that overwhelmingly. Ask any high school paper editor if what they publish is reviewed/censored for content.
In my opinion ( yes, I'm entitled to one too) that clearly translates exactly as I stated.

Again, children are "property" of the parents and have rights restricted accordingly. Not that I like it, just that's the way the laws work.
posted by nofundy at 12:14 PM on April 26, 2006

Isn't this what is making Whole Foods Market such a success or driving the sale of hybrid cars which are pretty much a guaranteed money loser compared to the standard gas powered car?

Whole Foods is still a tiny player compared to Safeway or the people who own Ralphs and Kroger. They also are at least partially floated by people who are looking for their excellent gourmet food choices and couldn't give a toss about organic rennet free raw milk cheese or sustainable farming. And when a new Walmart opens, the huge decent people demographic is somehow unable to keep shopping at the locally owned stores that are driven out of business.
The hybrid market was under estimated, but a hybrid that had been produced in the same amount as a gasoline car would probably have been a perceived disaster in terms of sales (in fairness, I don't have numbers on that). I think significant increases in hybrid sales will be driven by rising gas prices and a drop in sticker prices to at or below gas engine cars, not a desire to do the right thing.
posted by PinkStainlessTail at 12:23 PM on April 26, 2006

The real world truth is that students, while in school, do not have freedom to publish, wear, or say things that adults might in a public space.
Case law supports that overwhelmingly. Ask any high school paper editor if what they publish is reviewed/censored for content.
In my opinion ( yes, I'm entitled to one too) that clearly translates exactly as I stated.

Fair enough.
posted by Optimus Chyme at 12:43 PM on April 26, 2006

In my opinion ( yes, I'm entitled to one too) that clearly translates exactly as I stated.

No, it translates entirely different from what you stated. In fact, what you stated needed no translating: "There exists no "freedom of speech" in a public school. Period." You were wrong.

Period.
posted by pardonyou? at 12:51 PM on April 26, 2006

Semicolon;
posted by ozomatli at 1:01 PM on April 26, 2006

#!hashbang
posted by sonofsamiam at 1:02 PM on April 26, 2006

octothorpe
you're excused
posted by nofundy at 1:13 PM on April 26, 2006

Is it that torturous? When someone lists A and B among their reasons for a decision, and you note that A and B are not to be found in the current situation so you will decide something else... isn't that pretty direct?
posted by fleacircus at 4:34 AM PST on April 26 [!]


I don't really understand how the majority misused prescendent: Tinker seems to say, "I ruled A because B and C were not present". Reinhardt claims, "In this case, B may or may not be present, but C definitely is, so I will rule Not-A." That seems pretty clear-cut to me.
posted by muddgirl at 8:48 AM PST on April 26 [!]


The way I read Tinker and Reinhardt's opinion in Harper is this. In Tinker, the majority makes a kind of an aside remark that the First Amendment may not protect student speech that intrudes upon the rights of other students (without at all elaborating what these rights include, the degree of the intrusion necessary before the school can regulate it, etc.). Further, it seems that the reason they bring up this up at all is only in connection with the idea that speech intruding upon rights of other students may lead to substantial disruption - not as a separate test.

However, in Harper, Reinhardt takes this little aside and manages to create from it a constitutional right for minorities to not be presented with symbolic speech that they may find offensive. That is an enormous leap of logic, as far as I am concerned.
posted by Pontius Pilate at 2:14 PM on April 26, 2006

There is a pretty basic concept in constitutional law regarding "content-neutral" restrictions on freedom of speech. That issue answers this question and is being largely glossed over.

You don't have freedom in speech in schools as a student in the same manner a citizen has freedom vis-a-vis the government. That being said, as schools are agents of the state, they are obligated to "censor" in a content-neutral fashion.

"No T-shirts with messages" is a completely reasonable and content-neutral action that is Constitutionally permissible regulation. "T-shirts with Pro-LGBT messages are good; T-shirts showing disapproval of LGBT acts are bad" is not a content-neutral policy and one that is unreasonable everywhere except in 9th Circuit land where certain policy preferences trump rights when they conflict. Just like a school district couldn't allow "Pro-Jesus" shirts while not allowing "Jesus sucks" shirts.

PontiusPilate made an excellent second comment, and I incorporate it by reference.
posted by dios at 2:16 PM on April 26, 2006

dios, you would agree with this, then?
posted by pardonyou? at 2:43 PM on April 26, 2006

Yes.
posted by dios at 2:45 PM on April 26, 2006