9th Circuit: Schools Can Ban Racist, Anti-Gay T-Shirts
Friday April 21, 2006
Category: Free Speech | Gender and Sexuality
Susan Pizarro-Eckert reports on today's ruling from the 9th Circuit Court of Appeals in Harper v. Poway Unified School District (PDF format--and well worth reading), in which Judge Stephen Reinhardt refused to overturn a school district policy banning T-shirts bashing gay students. As he wrote, in part:
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Susan Pizarro-Eckert reports on today's ruling from the 9th Circuit Court of Appeals in Harper v. Poway Unified School District (PDF format--and well worth reading), in which Judge Stephen Reinhardt refused to overturn a school district policy banning T-shirts bashing gay students. As he wrote, in part:
Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development.This ruling makes a great deal of sense under the Supreme Court precedent set in Tinker v. Des Moines (1969), which overturned a school's decision to prohibit students from wearing black armbands protesting the Vietnam War. The ruling states that speech in school may only be restricted if:
- It would "impinge upon the rights of other students," or
- Cause "substantial disruption of or material interference with school activities."
- A San Diego school recently disciplined a high school sophomore for wearing an American flag.
- 10th place in the 2006 Jefferson Muzzle Awards was shared by three public high schools, whose administrators:
- Fired the school newspaper editor for printing an editorial that was supportive of gay students,
- Censored a school newspaper article that endorsed abstinence, and
- Recalled 1,800 copies of a school newspaper that included faculty-approved articles on birth control, piercings, and tattoos.
- White administrators at a Jackson, Mississippi high school allegedly banned apparel celebrating Black History Month.
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Comments
The student wore the shirt two days and no vilolence nor disruption occurred. This boy was brave to stand up to the school’s forced tolerence of every view except what he read in the Bible (Romans 1:27). He was not attacking gays but desenting against the administration when he put “…we have embraced what God has condemned” on his t-shirt. It was an offence to all liberals and they had to silence him even the majority of americans believe the gay lifestle is “against God’s will” according to the 2004 L.A. Times poll.
The “Day of Silence” will now be enforced all year long.
Ron, you should skim Steinhardt’s full ruling. The fact is that the kid was wearing an incendiary, anti-gay T-shirt on “Straight Pride Day” as part of his community’s broader assault on gay and lesbian students. If schools can ban anything at all on grounds of content, it should be hateful racist, homophobic, and misogynistic slogans that promote a culture of violence–whether the pretense of the slogan in question happens to be a Bible verse or not.
Those of us old enough to remember the civil rights movement surely know that there was a time when a comparably privileged and self-righteous student might have hidden behind the Bible while wearing a T-shirt attacking the “cursed children of Ham.” Neither biblical proof-texting nor majority prejudice should provide students with the authority to prevent members of minority groups from obtaining a quality education.
Cheers,
TH
…or we should be prepared to let schools be nasty, censorship-free verbal free fire zones. But the current situation, which allows judges to approve policies preventing students from celebrating Black History Month with their left hands while allowing students to wear anti-gay T-shirts with their right, is unacceptable. Whatever the clearer standard says, we need a clearer standard.
Cheers,
TH
I’d let the kid wear his “Homosexuality Is Shameful” shirt as an expression of his free-speech rights. And I’d let the kids wear their Black History Month shirts.
Or I would prohibit the kids from shirts with political/religious expressions, period, on the basis on the job of schools is to provide an education, and slogans get in the way of that goal.
I’m for free speech. And I emphatically DO NOT agree with the anti-gay kid’s shirt and would be appalled if any of my kids wanted to wear anything of the sort. But it seems to me that the 9th Circuit Court’s ruling is restricting speech on the basis of content.
And that’s wrong. If you can wear shirts that express only one side of an issue, you don’t have free speech at all.
But let’s look at that last statement closely. Let’s say that a white supremacist legislator was elected–probably from my home state, with my luck–and made an “issue” over whether African Americans should be forcibly deported to Africa. Would that make it okay for students to wear “Blacks Should Go Back to Africa” T-shirts on the basis that it’s just “one side of an issue”? Or would it still be an attack on other students?
That’s the crux of it with the anti-gay T-shirts. The fact that gay students have been made into an “issue” does not make them legitimate targets under the Tinker standard; their educational experience still has to be protected. That was the basis of Steinhardt’s ruling.
So at issue here is how much of an infringement on the quality of minority students’ educational experiences we’re going to allow in the name of free expression. My feeling is that if we allow anti-gay T-shirts, we also have to allow racist, sexist, and anti-religious T-shirts. Whatever standard we use must be content-neutral. We can’t say “Well, you can wear T-shirts that criticize gays–but not Jews, and not Hispanics, and not women, and not the disabled, and…”
Cheers,
TH
Tom — I agree with much of what you say. I’m not proposing a different standard for “anti-gay” speech than anti-anything else. If a student wanted to wear a shirt that said “Christians are shameful,” I’d allow it (or, I’d go with the alternative, which is requiring school uniforms with no slogans for anyone). Where’s the limit? I’m not sure. Even the dissenting judge in Harper v. Poway (the dissent, too, makes very interesting reading) acknowledges at the very end that that his position has difficulties.
You say: “So at issue here is how much of an infringement on the quality of minority students’ educational experiences we’re going to allow in the name of free expression.” I agree that that is part of the issue, especially as framed in the majority opinion. However, that cuts both ways. I imagine that there were some fundamentalist Christians, another minority, who found their education experience infringed by the semi-officially sanctioned “pro-tolerance” demonstration. Should that not have been permitted because the fundamentalists were bothered, offended and made to feel like second-class citizens?
Here’s my question to you (and it’s one raised by the dissenting judge): In what way could this student have expressed his opinion in a way that would have meet the majority’s standard?
I’m not saying this is an easy issue. And I agree with you clear standards are needed. I’m not convinced that this case provides them.
Anyway, it’s an interesting case, and I thank you for calling it to my attention. I’d also call your attention to this editorial in the Los Angeles Times, not exactly a fundamentalist rag, which points out some of the problems with the decision.
You know, the more I think about this case, the more I think you have a point.
I do need to clarify something: I don’t think Steinhardt’s ruling would have been acceptable as a Supreme Court majority opinion. I do think that it is an accurate interpretation and application of the Tinker precedent, and I think that the student’s shirt–which implied that gay students were “condemned” by God–was hateful.
But regardless of the merits of this specific case, the interpretative precedent set by the ruling should not be allowed to stand. We simply cannot afford to restrict speech whose content may be disruptive, but whose means of distribution are not, based on how it affects individual students. That kind of subjective standard would force girls and women to wear burqas because teenage boys find their educational experiences disrupted by their classmates and teachers.
On the other hand, I’m sure neither of us want to see a situation in which the “Blacks Should Go Back to Africa” T-shirt would be acceptable simply because it happens to reflect one side of the ideological debate du jour. And I think we both agree that gay students should not be given any less protection than non-white students, regardless of the political climate.
So I’m not really sure I have an answer for you. You’ve put some doubt in my head, and I thank you for that. This is, I believe, all the more reason why the Supreme Court needs to revisit the Tinker standard and replace it with something more clear. I’m not sure I know what that something should be. Maybe students should be allowed to wear whatever the heck they want–even if it’s racially inflammatory–because the First Amendment is worth protecting in every context. Or maybe a new standard should be in place that would affirm policies comparable to San Diego’s, but on more consistent grounds.
One thing is clear: Steinhardt’s ruling is not the be-all and end-all. This much I might have even said in the blog post, but I think I departed a little bit from that in the blog comments.
Thanks for keeping me honest! I look forward to your future posts on this site…
Cheers,
TH
You said: “On the other hand, I’m sure neither of us want to see a situation in which the ‘Blacks Should Go Back to Africa’ T-shirt would be acceptable simply because it happens to reflect one side of the ideological debate du jour. And I think we both agree that gay students should not be given any less protection than non-white students, regardless of the political climate.”
Yes, I’d agree with both of those statements. And I assume, too, that you’d agree that members of religious minorities should not be given any less protection than gay students should, regardless of the political and religious climate.
And to take the maybe-the-opposite side of the position I’ve taken, I think the school did a fairly good job of handling the situation under the circumstances. The fundamentalist kid wasn’t punished, nor anything negative put in his records. He was simply kept out of a situation where somebody could get hurt. To a certain extent, you’ve got to allow school officials to handle volatile situations in a way that allows education to continue. In this case, I think the case could be made that the kid’s shirt (I don’t expect you to necessarily agree with this) is not per se outlawable, but that in the climate of the school at that time it was inflammatory and became tantamount to “fighting words.” At some point, you’ve got to allow school officials to make those judgments.
In an ideal world, this would have never gone to court, and I don’t think it needed to. Ideally, the principal and the student could have worked together to find some other way for the student to express his opinion (apparently the principal tried), and the principal would have also talked to the gay activist students and reminded them that they have to be tolerant of minority religious beliefs (for all I know, maybe he did).
The cliche is that hard cases make bad law, and this 9th Circuit case is a good example. It looks like we both agree it wasn’t a fully defensible decision. It seems to set a standard based on how the listener would feel rather than something a bit more objective. As you suggested in your last comment, if taken to an extreme, this decision could lead to all sorts of mischief.
I don’t know how I’d write the standard either (and neither did the dissenting judge, who at the end mentioned a situation comparable to your “blacks go home” hypothetical). If this case ever makes it to the high court (I suspect it won’t because the issue will become moot), it would indeed be interesting to see how the ruling comes down.