The 9th Circuit ruled yesterday that schools may ban inflammatory anti-gay T-shirts.
Schools in the western United States can forbid a high school student from wearing a T-shirt that denigrates gay and lesbian students, a sharply divided federals appeals court in San Francisco ruled today. In a 2-1 decision, the U.S. 9th Circuit Court of Appeals said that a T-shirt that proclaimed “Be Ashamed, Our School Embraced What God Has Condemned” on the front and “Homosexuality Is Shameful” on the back was “injurious to gay and lesbian students and interfered with their right to learn.” The court said that the shirt can be barred on a public high school campus without violating the 1st Amendment.
“We conclude that” Poway High School student Tyler Harper’s wearing of his T-shirt ” ‘collides with the rights of other students’ in the most fundamental way,” wrote 9th Circuit Judge Stephen Reinhardt, quoting a passage from Tinker vs. Des Moines Independent Community School District, a seminal U.S. Supreme Court decision on the free speech rights of students. “Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation have a right to be free from such attacks while on school campuses. As Tinker clearly states, students have the right to ‘be secure and to be let alone,’ ” Reinhardt said. “Being secure involves not only the freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society. The ‘right to be let alone’ has been recognized by the Supreme Court … as the most comprehensive of rights and the right most valued by civilized men,” Reinhardt said.
Judge Alex Kozinski issued a strong dissent. “While I find this a difficult and troubling case,” the Poway Unified School District has “offered no lawful justification for banning Harper’s T-shirt.” There was no evidence that gay students were harmed by derogatory messages of the type conveyed on Harper’s T-shirt, Kozinski said. Moreover, Kozinski said there was no indication that a discussion Harper had with other students about the T-shirt “turned violent or disrupted school activities.”
Eugene Volokh excoriates the majority for allowing trampling on the 1st Amendment:
The Supreme Court has indeed recognized that speech in K-12 public schools must be somewhat more restrictable than speech on the street. Tinker v. Des Moines Independent School District (1969) made clear that student speech might be restricted when it’s likely to substantially disrupt the educational process. And sometimes speech that’s hostile based on race, religion, or sexual orientation — as well as speech that offends people for a wide variety of other reasons — might indeed lead to substantial disruption.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn’t categorically cast out certain student viewpoints from First Amendment protection. While the standard isn’t without its problems, it is at least basically consistent with the First Amendment principle of “equality of status in the field of ideas.”
Yet the majority specifically refrains from relying on this principle (and Judge Kozinski’s dissent points out that on the facts of this case, there wasn’t enough of a showing that the speech would likely cause disruption). Instead, Judge Reinhardt takes some unelaborated remarks by the Supreme Court about the First Amendment’s not protecting student speech that “intrudes upon . . . the rights of other students,” and fashions from them a constitutionally recognized right to be free from certain kinds of offensive viewpoints (not a right that is itself directly legally enforceable, but a right that the school may choose to assert as a justification for its viewpoint-based speech restrictions).
This is a very bad ruling, I think. It’s a dangerous retreat from our tradition that the First Amendment is viewpoint-neutral. It’s an opening to a First Amendment limited by rights to be free from offensive viewpoints. It’s a tool for suppression of one side of public debates (about same-sex marriage, about Islam, quite likely about illegal immigration, and more) while the other side remains constitutionally protected and even encouraged by the government.
I’m hardly surprised by the ruling, even aside from it being the 9th Circuit. Indeed, while I defer to Eugene’s expertise in such matters, it strikes me as reasonable and consistent with Tinker and other cases that have ruled on the school’s role in loco parentis.
I agree that restrictions on speech on the basis of maintaining order in a classroom ought to be value neutral. But, presumably, these restrictions prohibit all controversial or inflammatory expressions on the issues of race or sexual orientation. If the school district permits shirts with messages saying “It’s a black thing, you wouldn’t understand” (a very dated reference, I realize) or “It’s our country, not whitey’s” or “Straight people suck” or the like, then I agree that the policy would be unconstitutional. But school officials, especially in elementary in secondary institutions, have a legitimate need to ward off potential violence and disruption.
Speech is a good thing and even minors should be encouraged to speak their minds. The clash of ideas, even crude, ill formed ones, is at the core of democracy. But we have recognized the need for time, place, and manner restrictions since the earliest days of the Republic.
Update: Schoolteacher Betsy Newmark agrees with me. Lawprof Ann Althouse leans in my direction as well but has not digested the opinion.
