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Friday, April 21, 2006

Free Speech For Minority Groups Only

Eugene Volokh has done us all a favor by posting on a Ninth circuit case about free speech in high schools. It's extremely relevant to the free speech issues we have been discussing, because the Ninth circuit ruled that in high schools at least, members of certain groups do have special rights under the First Amendment - the right to make their case but not be criticized.

Volokh Post:
Majority Opinion (pdf)
Main precedents linked at Betsy Newmark's.

The basic facts are these. A high school sanctioned a "Day of Silence" event in 2003 and 2004. During these events, GLBT or other allied students are supposed to remain silent to protest mistreatment of GLBT people. Manual. In some such events students who are silent throughout the day wear t-shirts to express why, and in others they hand out cards to explain why.

At this particular event, the students participating were wearing duct tape over their mouths and refusing to speak in class. Some of them also wore t-shirts with "National Day of Silence" on them and a symbol. After the event in 2003, an unofficial group of protesters mounted a rebuttal day about a week later during which some of them wore anti-gay (it's vague) t-shirts. There were conflicts and those wearing the t-shirts were required to remove them.

In 2004, a student protested the Day of Silence by fashioning his own t-shirt. The first day (which passed without incident) he wore a shirt with "I will not accept what God has condemned" on the front and "Homosexuality is shameful ‘Romans 1:27" on the back. The second day the back was the same and the front read "Be ashamed, our school embraced what God has condemned"..

The student who wore the shirt was asked by a teacher on the second day to remove the shirt. He refused. He was sent to the office. His complaint said that administrators and a detective from the sheriff's office spoke to him to try to convince him to take the shirt off. He refused, and was not permitted to return to classes. At the end of the day he was allowed to leave campus. He received no other punishment as a consequence, but filed suit over the issue on First Amendment grounds in federal court. The district court refused his plea for a preliminary injunction on the grounds that his suit was not likely to succeed; he appealed.

What got
Volokh so riled (see Betsy Newmark for an alternate viewpoint) was the leap taken by the Ninth Circuit, which enunciated a new doctrine providing specific minorities specific rights under the First Amendment:

Nor, contrary to the dissent, do we believe that because a school sponsors or permits a “Day of Tolerance” or a “Day of Silence” minority students should be required to publicly “[c]onfront[]” and “refut[e]” demeaning verbal assaults on them – that they may be left with no option other than to try to justify their sexual practices to the entire student body or explain to all their fellow students why they are not inferior or evil.
Perhaps in an attempt to limit the scope of their ruling, the majority makes an interesting distinction:

In his declaration in the district court, the school principal justified his actions on the basis that “any shirt which is worn on campus which speaks in a derogatory manner towards an individual or group of individuals is not healthy for young people . . . .” If, by this, the principal meant that all such shirts may be banned under Tinker, we do not agree. T-shirts proclaiming, “Young Republicans Suck,” or “Young Democrats Suck,” for example, may not be very civil but they would certainly not be sufficiently damaging to the individual or the educational process to warrant a limitation on the wearer’s First Amendment rights. Similarly, T-shirts that denigrate the President, his administration, or his policies, or otherwise invite political disagreement or debate, including debates over the war in Iraq, would not fall within the “rights of others” Tinker prong.
(Bush-bashing good, anti-war speech good, minority-bashing bad!)

It is essential that students have the opportunity to engage in full and open political expression, both in and out of the school environment. Engaging in controversial political speech, even when it is offensive to others, is an important right of all Americans and learning the value of such freedoms is an essential part of a public school education.
(Keep marching. Republicans suck!)

Limitations on student speech must be narrow, and applied with sensitivity and for reasons that are consistent with the fundamental First Amendment mandate. Accordingly, we limit our holding to instances of derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation.
Darn! The vagina people don't qualify for special rights! I've been cheated!

Note the two requirements - the protected group must be a minority race, religion or sexual orientation. In other words, wearing t-shirts with the message that "White Christian Republicans suck" is presumably not something school administrators can restrict in the Ninth District (thus making high schools safe forums for Howard Dean to speak) whereas school administrators may restrict a student from wearing a t-shirt with the message "Arab Muslims suck".

This is the point I was trying to make about rights conferred on groups rather than individuals. I can understand the school principal's position (although the precedent says he can restrict expression to prevent disruption and disorder, but not on "health" grounds), but I cannot understand the court's. The t-shirt was extremely provocative, but is it correct to say that the First Amendment allows the school to set up a forum in which one of these protected groups may wear a t-shirt espousing some view and other students may not wear a t-shirt protesting that view? Remember, some of the day silence participants were wearing a t-shirt.

There is no question that school administrators must often limit student speech in order to keep order in the schools. What troubles me here is the basis on which the court feels that the school administrators have the right to limit student speech. Clearly, the school felt that some speech on this topic was acceptable and some not. The appearance of the deputy (who spoke to the student about his own Christian beliefs and attempted to convince the student that his action was religiously inappropriate) is also somewhat problematic. The dectective was at the school that day because the principal had requested his presence in case there were conflict among the students, so it is a stretch to assert that his action in speaking to this student was prompted merely by curiosity.

Hypothetically, would this student have had the right to carry a Bible that day and duct tape his own mouth in protest, or duct tape his own mouth and draw a cross on the tape? I am troubled by this decision. To me it seems likely to generate conflict rather than suppress it. Yet it is unequivocally true that high school administrators do need the authority to restrict some types of expressive activity that would normally be untouchable under the Constitution.

It seems to me that a school administration must generally make a rule about the class of expressions that will not be tolerated, but that it shouldn't make a decision on which opinions may not be expressed.

Imagine a situation in which a group of Muslims students wore t-shirts proclaiming that the Koran was the sole authority in this world. Do we really want to say that other students might not wear shirts proclaiming the Bible as the final authority, or the US constitution, because Muslims are a minority in the US? Would that generate good feeling toward Muslims? If I remember my high school days accurately, that would act as an incitement rather than to maintain a civil atmosphere in a school.

"Not seeing the forest for the trees."

That is clearly more than rhetorical, nowadays.

The courts need to reflect the American ideology- bringing people together, not tearing them apart.

Shame on the Ninth Circuit- for this ruling and others it will inspire.
I didn't like the kid's tshirt, but I checked with an infallible authority (one of my brothers), who had a habit of felling bullies with one blow in his high school days. He felt that it was wrong to allow one side to speak or wear tshirts and that it would cause problems.

It's relatively easy to sit kids down and teach them about real tolerance; this seems like it's teaching them something else.

I think this decision will be reversed. It's too stupid to stand.
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