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Eugene Volokh, April 20, 2006 at 7:53pm]
Sorry, Your Viewpoint Is Excluded from First Amendment Protection:
That's what the Ninth Circuit holds today, as to student speech in K-12 schools, in a remarkable -- and in my view deeply unsound -- decision (Harper v. Poway Unified School Dist.).
Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school. On the front, the T-shirt said, "Be Ashamed, Our School Embraced What God Has Condemned," and on the back, it said "Homosexuality is Shameful." The principal insisted that Harper take off the T-shirt. Harper sued, claiming this violated his First Amendment rights.
Harper's speech is constitutionally unprotected, the Ninth Circuit just ruled today, in an opinion written by Judge Reinhardt and joined by Judge Thomas; Judge Kozinski dissented. According to the majority, "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" -- which essentially means expressions of viewpoints that are hostile to certain races, religions, and sexual orientations -- are simply unprotected by the First Amendment in K-12 schools. Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."
This isn't limited to, say, threats, or even personalized insults aimed at individual student. Nor is there even a "severe or pervasive" requirement such as that requirement to make speech into "hostile environment harassment" (a theory that poses its own constitutional problems, but at least doesn't restrict individual statements).
Rather, any T-shirt that condemns homosexuality is apparently unprotected. So are "display[s of the] Confederate Flag," and T-shirts that say "All Muslims Are Evil Doers."...
Kathianne said:Once again giving 'special protections' to minorities over majority. If they take appeal my guess is the SCOTUS would strike some of this, minimum. Schools are different, but this wasn't a 'threatening' message, just an opinion.
http://volokh.com/archives/archive_2006_04_16-2006_04_22.shtml#1145577196
MissileMan said:It's nothing that a dress code can't resolve. Still, in the absence of a dress code, the ruling of the court is out of line.
Wouldn't it be refreshing if kids' priority was getting an education instead of trying to further a political cause.
Tyler Harper wore an anti-homosexuality T-shirt to school, apparently responding to a pro-gay-rights event put on at the school by the Gay-Straight Alliance at the school.
Such speech, Judge Reinhardt said, violates "the rights of other students" by constituting a "verbal assault[] that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development."
Since the 9th Circuit ruling-I think it will get struck down. Others are upset, including law professors. Links at site:ScreamingEagle said:If he had worn a pro-homo T-shirt, would he have been told to take off the shirt? I doubt it. Since when does a public school have the right to enforce opinions at a political event? Indoctrination anyone?
My guess is religious-oriented opinions are no longer allowed in our secular schools.
Eugene Volokh, April 24, 2006 at 1:42pm] 1 Trackbacks / Possibly More Trackbacks
Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
Here's an excerpt from Judge Reinhardt's short dissent in Lavine v. Blaine School Dist. (Jan. 2002); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) ("[T]he First Amendment [is] the guardian of our democracy.") First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation's officials or policies for any reason whatsoever.
Except of course, according to Judge Reinhardt's more recent Harper v. Poway Unified School Dist., when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other "derogatory and injurious remarks directed at students' minority status such as race, religion, and sexual orientation" (even if the remarks deal with important public debates, aren't personally addressed to any particular person, are in response to expressions of contrary views, and haven't been found to create a substantial risk of disruption).
The First Amendment, you see, doesn't protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects "any other person who disapproves of one or more of our nation's . . . policies for any reason whatsoever." But it doesn't protect condemnation of homosexuality -- an important argument for those who want to explain why they disapprove of, say, the nation's policy on constitutional protection for same-sex sexual relations, or the state's policy on employment discrimination based on sexual orientation. It doesn't protect the Confederate flag, presumably because it's often seen as an expression of disapproval for the nation's civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)
And presumably it doesn't protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That's because in the Ninth Circuit there's now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is "derogatory and injurious" towards their "race, religion, and sexual orientation."
I'll say it again: Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. 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, and thus might be restricted.
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." And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception). What bothers me is the Ninth Circuit's newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.
onthefence said:Gotta love the Ninth Circuit. No better way to spend your day than wiping your ass with the Constitution.
MissileMan said:Wouldn't it be refreshing if kids' priority was getting an education instead of trying to further a political cause.
MissileMan said:It's nothing that a dress code can't resolve. Still, in the absence of a dress code, the ruling of the court is out of line.
Wouldn't it be refreshing if kids' priority was getting an education instead of trying to further a political cause.
