Speech v. Silence

Tuesday, April 25, 2006

Speech v. Silence

In honor of the official National Day of Silence (NDoS) tomorrow I want to address a recent 9th Circuit decision that has a lot of conservatives upset and angry because the court affirmed the ruling of a lower court that stated that a public high school has the right to have and enforce a dress code that clearly states that students are not permitted to wear clothing with inflammatory messages that degrade other students.

This student and his right-wing lawyers believe he had his first amendment rights trampled on. I would wholeheartedly agree if he were in college, as I am a very strong opponent of hate speech codes, specifically in a higher ed setting. Not only are they unconstitutional but they also don't accomplish much of anything except exacerbate tensions, sometimes they even create tensions that weren't there before. While words themselves can be weapons if they are used in a threatening manner, the expression of bad or offensive ideas are not inherently hostile.

That being said, a public school, specifically high school, it is a completely different context. Why? We're talking about the behavior and expression of (mostly) minors in a compulsory, government-funded institution.

To be frank, the case at the center of this controversy is pretty pathetic as far as test cases go. As it states in Harper v. Poway a student wore a shirt that had handwritten on the front, "Be Ashamed, Our School Has Embraced What God Has Condemed," and on the back, "Homosexuality is Shameful." He specifically chose to wear this shirt on the student-led National Day of Silence protest that is supposed to represent the silence and isolation felt by GLBTQ students and the silencing effect of homophobia. A teacher first noticed his shirt because other students were reacting to and talking about it in the classroom. The student was asked to change the shirt, he refused. He then demanded to see an administrator.

In the case it is reported that he had already had a dispute about it with with other students that morning. The principal decided that the shirt violated the school's dress code that banned inflammatory, inciteful messages and said that he could return to class if he removed it. So what actually happened to the student? The student refused to remove or change his shirt so he was kept in the principal's offices for the day, he had no disciplanary actions placed against him and he got full attendence credit for the day. (Even though he asked to be suspended-- twice.) By all accounts he was treated well by everyone, the principal even “discussed [with Harper] ways that he and students of his faith could bring a positive light onto this issue without the condemnation that he displayed on his shirt.” The lawsuit alleges that he has a right to wear the shirt based on first amendment grounds, that it was specially protected religious speech. The court disagrees.

The courts have construed the First Amendment as applied to public schools in a manner that attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment. See, e.g., Tinker, 393 U.S. at 507 (balancing the need for “scrupulous protection of Constitutional freedoms of the individual” against the need of schools to perform their proper educational function). This court has expressly recognized the need for such balance: “States have a compelling interest in their educational system, and a balance must be met between the First Amendment rights of students and preservation of the educational process.” LaVine v. Blaine Sch. Dist., 257 F.3d 981, 988 (9th Cir. 2001).

The fact is that public schools have all kinds of rules that govern student behavior-- including expression-- and dress codes are part of those rules. Shirts that have curse words, sexual or derogatory images, racial slurs or epithets are banned without question. (They don't even have to be banned to explicitly condemn or reject their message, but because they are disruptive and inflammatory.) It's not hard to imagine that a hostile message on a t-shirt could incite verbal as well as physical conflict among students. If one is to concede that schools are obligated to do what they can to minimize the harassment of students by other students, to decrease the likelihood of violence between students, if that means banning a t-shirt that says "Homosexuality is Shameful" then so be it. The same rule should be evenly applied to any message that condemns or mocks another group of students-- so an explicitly anti-Christian shirt would also be covered under that policy.

The thing that truly bugs me is that this lawsuit wouldn't exist if the shirt had said something derogatory about, say, Jews or Muslims or kids with disabilities. It's because it's about homosexuality.

Frankly what the school is trying to do is strike a certain balance and they should be given the power and discretion to do so. The fact is that most high schools are barely-controlled chaos as the students far outnumber the teachers. In fact such a dress code rule isn't just about protecting students who are harassed and marginalized, but it also serves to protect a student wearing an inflammatory t-shirt from getting in a fight with other students.

That is the brilliance of the NDoS-- the kids who participate aren't harassing anyone, they're not actually criticizing anyone, they're merely using organized, intentional silence to symbolically speak volumes. Clearly it's a hard thing to counter.

This isn't the end of this case, though, the kids's right-wing attorneys at the Alliance Defense Fund have promised to appeal, claiming that “The majority implied that Brokeback Mountain is in, and the Bible is out."

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