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Wednesday, May 03, 2006

Your First Amendment Right Not To Be Criticized

In a prior post, I referred to the Ninth Circuit's recent ruling stating that minority groups had special rights not to be criticized in high schools. The post is here. The opinion is here. The salient piece of the opinion is here:
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.
In the wake of that, several schools in the Ninth District have suspended students for wearing t-shirts expressing disapproval of homosexuality (apparently as a reply to the Day Of Silence, during which students often wear t-shirts with gay-friendly symbols and refuse to speak in class.):
The Oakmont students came to school Thursday with shirts emblazoned with the message: "Homosexuality is sin. Jesus can set you free."

School officials gave them an ultimatum: Remove the shirts or face disciplinary action. Thirteen students decided to keep their shirts on and were suspended for two days.
Students at other area schools were suspended for similar actions, PJI said, including at Mira Loma High School in Sacramento and San Juan High School in nearby Citrus Heights.
Well, I would say the administrator's action is completely legal in the Ninth District right now, which I guess guarantees that some such case will be appealed to the Supreme Court. The decision was in response to an appeal of a denial for a preliminary injunction, but the circuit court's decision was written very expansively. The district court knows how it must find in the case.

Interestingly, some disagree with the adminstrators' decisions in these cases:
Lance Chih, a high school student and co-chairman of the Sacramento Regional Gay Straight Alliance, told the Sacramento Bee newspaper, "If they're stating their own belief that homosexuality is wrong, that's not promoting hate or violence against us. If I want to promote my civil rights, I can't tell another group of students that they can't do it."
As far as I can tell, the Ninth circuit's decision would make it okay for a Buddhist or an atheist to speak disparagingly of Christianity, but illegal for a Buddhist or an atheist to speak disparagingly of a Muslim. A student of French extraction could announce that he hated Americans, but not that he hated American Indians. He could, however, talk forever in praise or in defense of American Indians. This really shifts the argument to a new set of categories, rather than eliminating it. Is a white Baptist a minority in a majority hispanic Catholic school district? Could the white Baptist wear a t-shirt saying that Catholics aren't Christian, because of they don't believe in salvation by grace alone?

I think schools can and must ban certain types of speech and symbols in order to keep order, but I cannot see this latest elaboration of that need as being consistent with "the fundamental First Amendment mandate". I'd love to see Reinhardt's definition of the First Amendment mandate. And suppose the topic came up in a classroom discussion? Would a teacher be required to forbid expression of such sentiments?

What of the teachers and administrators? They have a legitimate interest in wishing to have an orderly environment for learning, and I presume that no one would claim that they cannot formalize, teach and enforce rules that prevent students from harassing and abusing other students. It's hard to see how schools and teachers can be immune from lawsuits with these confusing rules, isn't it?

Also, this raises an interesting question: What becomes of the viewpoint-neutral forum principle? If the students aren't allowed to say something derogatory about a member of a minority group, can an discussion forum be set up in the school that forbids any such expressions? Traditionally the answer has been no - but traditionally a school has not been able to differentiate between allowed student speech based on the viewpoint espoused. The Ninth Circuit has now parted ways with that legal theory.

The Rutherford Institute published an interesting article discussing student speech restrictions and Tinker. I think I'll just close by quoting Justice Black's dissent in Tinker:
The Court's holding in this case ushers in what I deem to be an entirely new era in which the power to control pupils by the elected "officials of state supported public schools . . ." in the United States is in ultimate effect transferred to the Supreme Court.
As I read the Court's opinion it relies upon the following grounds for holding unconstitutional the judgment of the Des Moines school officials and the two courts below. First, the Court concludes that the wearing of armbands is "symbolic speech" which is "akin to `pure speech'" and therefore protected by the First and Fourteenth Amendments. Secondly, the Court decides that the public schools are an appropriate place to exercise "symbolic speech" as long as normal school functions [393 U.S. 503, 517] are not "unreasonably" disrupted. Finally, the Court arrogates to itself, rather than to the State's elected officials charged with running the schools, the decision as to which school disciplinary regulations are "reasonable."

Assuming that the Court is correct in holding that the conduct of wearing armbands for the purpose of conveying political ideas is protected by the First Amendment, cf., e. g., Giboney v. Empire Storage & Ice Co., 336 U.S. 490 (1949), the crucial remaining questions are whether students and teachers may use the schools at their whim as a platform for the exercise of free speech - "symbolic" or "pure" - and whether the courts will allocate to themselves the function of deciding how the pupils' school day will be spent. While I have always believed that under the First and Fourteenth Amendments neither the State nor the Federal Government has any authority to regulate or censor the content of speech, I have never believed that any person has a right to give speeches or engage in demonstrations where he pleases and when he pleases.
While the absence of obscene remarks or boisterous and loud disorder perhaps justifies the Court's statement that the few armband students did not actually "disrupt" the classwork, I think the record overwhelmingly shows that the armbands did exactly what the elected school officials and principals foresaw they would, that is, took the students' minds off their classwork and diverted them to thoughts about the highly emotional subject of the Vietnam war. And I repeat that if the time has come when pupils of state-supported schools, kindergartens, grammar schools, or high schools, can defy and flout orders of school officials to keep their minds on their own schoolwork, it is the beginning of a new revolutionary era of permissiveness in this country fostered by the judiciary.
I believe in free speech in public life, and I also believe that once a school opens up a forum (i.e. artwork, t-shirts, discussion panel) that it cannot censure the individual student's non-criminal expressions on the basis that the school does not approve. But I was a high school student, and there is a natural tendency to enjoy the youthful fervor of dissension. I think that schools must sometimes have a broader power to limit this sort of thing. Issues discussed within a classroom within a lesson naturally have a different scope. Apparel worn the entire day may be an expression of student's genuine opinion, but it does have more power to disrupt and cause dissension.
The standards set forth by the Ninth Circuit's decision seem to me to raise more questions than they solve. Certainly they don't seem consonant with the philosophy stated in Tinker (Justice Fortas, writing for the majority):
School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views.
The problem is that the Ninth Circuit's court distinguishes between speech based entirely on its content, while insisting that students' free speech rights must be upheld. Will the decision itself be upheld? I doubt it.

Your First Amendment Right Not To Be Criticized

Is that anything like the alcoholic's First Amendment Right To My Next Drink?
Wait. The next big ACLU case will be defending a principal who decided that tshirts that read 'Democracy and Freedom Rules,' might offend some students, and then demanded that students remove those tshirts.

The Ninth Circuit will rule that democracy is equal to and no better than any other form of government.

Disagree, and you'll go to jail.
Oh heck Anon -Imagine the women's rights groups. Before we blink it will be a hanging offense to point out that there are differences in brain structure between men and women and that they do seem correlated to the male advantage in spatial/mathematical reasoning.

Just take me out and shoot me now. I don't think the vagina warriors are nearly as reasonable as gays.

There are at least as many attacks on science in the schools coming from the politically correct lobbies as from religion.

SC&A, I believe that some religious groups would feel offended by those sentiments. Some of them are willing to do the shooting themselves, though.

Your underlying point is excellent. No matter the sentiment, someone's going to disagree with it. Some of the animal rights people are extremely passionate about their cause. I imagine they'd find a t-shirt advertising steak offensive. Their offense would be genuine, too.
We are drifting away from rights being based on the individual to being based on the individual's membership in certain groups. If you can't manage to join one of the privileged groups with rights your pretty much tossed aside.

My group is better than your group. Neener neener neener.
Tommy - ve haf vays to deal vith your group! Do not think that you can laugh at our dread power with impunity. Just wait until I get the rest of those looking for their brains in their vaginas to address your case.

We'll take care of you JUST as soon as we figure out a strategy.
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