April 20, 2006
First Amendment in Schools
This 9th circuit decision that Volokh frets about is, to say the least interesting.
The case essentially says that schools has the right to protect students from attacks on their core persons. IE Race, religion, ethnicity, and sexual orientation. The facts, simplified, are a student took exception to some gay right activities at the school, and wore a T-shirt that quoted the bible and said homosexuality is shameful. The school asked him to remove it.
The 9th circuit upheld the schools right to do so.
I recognize that reasonable minds can differ, and I also admit that the decision could raise some serious problems. However, Volokh doesn’t give the opinion a fair shake and seems to suggest the court wove the decision out of nothing.
The 9th circuit relied on Tinker which, while upholding the first amendment rights of students, also held out some situations where schools could reasonably restrict certain speech. And, while the scope suggested by the 9th is broad, it does raise a legitimate concern.
Volokh worries that this was, effectively, the silence of dissenting opinions, but it’s unclear if the decision would prevent any anti-gay message from being expressed in school, or only those which seemed to be derogatory and directed at students. Theoretically, a shirt that said ‘The bible says homosexuality is wrong’ might not run afoul the same way as a ‘homosexuality is shameful’ might. Or would it?
The comments in Volokh, some of which are interesting, also have a good amount of the ‘love the sin, hate the sinner’ crowd. The shirt was not meant to say the students were shameful, merely homosexuality. However, it’s a fallacy to think you can distinguish gay people from gay acts. They are gay all the time, so condemnation of homosexual acts is the same as condemning homosexual people. It might be, then, as Volokh worries, that any shirt which shows homosexuality in a negative light would be banned.
Still, shouldn’t schools be able to prevent students from wearing a shirt that says ‘All Niggers go back to Africa’ even though it’s arguably a dissenting viewpoint? Does a school which celebrates ‘Black History’ need to give equal time to the KKK?. And, indeed, Kansas to the contrary, teaching science does not mandate that a school needs to allow equal time to ‘creationist’ viewpoints. (Tinker would allow for view point discrimination by schools, in certain circumstances, but did not discuss what might make such a practice constitutionally acceptable.)
All of the above, are valid arguments, and I recognize Volokh’s concern, though don’t share them to the same degree. However, then he starts with the ‘Sky if Falling’ argument.
This decision would not allow for any of that. A shirt that said Gay Marriage is wrong, would not run afoul of this decision. The same goes true of Illegal Immigration. He might be right about Islam, though only if the shirt was derogatory towards Muslim students. (An anti Bin Laden shirt would be fine, All Muslims are Evil would not).
-- Update --
It should be noted, that the school in question had dealt with some conflicts between the pro-gay and anti-gay crowds the year previous. It also was successfully sued by gaty students for failing to protect them from bullying.
Comments:dolphin said (at April 21, 2006 08:23 AM):
It's always a tricky issue when public schools encroach on student speech. On one hand I'm inclined to believe students should be able to wear whatever messages they want on their clothing (even if it is "All niggers go back to Africa"). On the otherhand, schools (even public schools) serve the primary goal of educating. When "free speech" gets to the degree that it prevents the educational process, I think it's reasonable that the school can curtail it during school hours. When I was in public school we couldn't wear shorts. The reasoning was that some girls (or guys as short-shorts for guys was in style when the policy was created) might wear short-shorts that would cause a distraction for other students.
If shorts can be reasonably prohibited (or even uniforms enforced in some districts), then I think it's certainly reasonable to think a shirt with an extremely inflamatory message is reasonable to "censor" during school hours.
Henry said (at April 21, 2006 09:31 AM):
The problem, as I think Volokh would see it, is that the justification by the 9th was not under the ‘disturbance’ plank of Tinker, rather they justified it as protecting the rights of the gay students to not be harassed.
I think schools do have a right to create a place were all students feel safe, but recognize that the line needs to be drawn carefully. And, honestly, I’m not sure where the line should be.
Kill all fags - homosexuals are an abomination - All gays suck – Think God not Gay – Homosexuality is shameful – Adam and Eve not Adam and Steve – Think Christ – Jesus saves!
Where on that list is the line drawn – or should it be drawn at all?