I should know better than to take on my friend Eugene Volokh on points of Constitutional doctrine. But it seems to me that the 9th Circuit result he criticizes — that a school district can forbid a student to wear in school a T-shirt that says “Homosexuality is shameful” — is obviously correct as a matter of policy, and could justified in terms that, while admittedly not perfectly content-neutral, do not unduly restrict debate on matters of public importance. (The cases of “Bong Hits 4 Jesus”, the expression of pro-Taliban views, or writing a poem involving violence, which Eugene treats as parallel, seem to me disanalogous in important ways.)
The standard I would favor is “Nothing that insults other students.” The school has a right, and in some cases an obligation, to ensure that students can go about the business of learning undistracted by direct affront, as opposed to the offense represented by the expression of upsetting opinions. (There’s an analogy to the “fighting words” rule, but I wouldn’t insist on the likelihood of actual violence.)
Take the simplest case: A student shows up in school with a T-shirt that says “Abe Bernstein is a doofus,” where “Abe Bernstein” names a fellow-student. Even if there’s no danger that Bernstein will respond with violence, it seems to me obvious that the school authorities can and should tell the aggressor — for insult is surely aggression — to take off the T-shirt. And no, that’s not a content-neutral rule, since there would be no reason to require him to remove a T-shirt that says “Abe Bernstein is a hero.” Abe Bernstein ought to be able to go to school without having to choose between accepting insults and retaliating against them, verbally or physically.
And I suppose this instance is uncontroversial, just as it would be uncontroversial that a teacher could and should tell a student who says “Abe Bernstein is a doofus” to Abe Bernstein’s face (even at recess or in the lunch line rather than the classroom) to apologize, or send him to the principal’s office for saying it. Not content-neutral, but perfectly proper. What’s being protected is the orderly functioning of the school.
Now suppose that instead of “Abe Bernstein is a doofus” the T-shirt says “Judaism is a gutter religion.” Bernstein is not less insulted, and perhaps more so, since it is by some standards praiseworthy to laugh off an affront to oneself, while it seems shamefully disloyal to let an affront to one’s religion or family go unanswered. (Consider “Abe Bernstein’s mother gives green stamps.”) And no, of course a T-shirt quoting Rabbi Hillel or otherwise praising Judaism would not fall under the same ban, no matter how many Christians or Muslims or agnostics it annoyed.
To take an example raised by one of Eugene’s commenters: in general, a T-shirt saying “Bush is a Terrorist” should be just as protected as one saying “Bush for Mt. Rushmore.” But if Mr. Bush had a grandchild in that school, the “Bush is a Terrorist” T-shirt, but not the “Bush for Mt. Rushmore” T-shirt, should be banned as a personal affront to the grandchild.
And a T-shirt saying “Republicans Support Torture,” which expresses what I take to be a mostly correct statement about what I take to be a matter of great public importance, would also be banned on school grounds, since torture is known to be shameful and the T-shirt would therefore affront any students foolish and wicked enough to be Republicans. (By contrast, “Torturers are Cowards” would be protected, since presumably no student is himself a torturer.)
Affront is not the same as offense. A liberal Democrat could feel offended by a “Bush for Mt. Rushmore” T-shirt because it implicitly condemns liberal Democrats, or an Iraqi immigrant because it praises the invader of Iraq. Tough. And the same for anti-gay bigots who might be offended by a rainbow button. The question is not whether someone is annoyed, but whether a reasonable third party would think that an affront had been offered. (In principle, that’s an empirical question, since being affronted and no responding tends to lower someone’s social standing.)
And no, I don’t want the courts enforcing these standards; I want them, instead, to defer to school authorities except in egregious cases, which is what the 9th Circuit majority did in this case.
In the actual instance, would the rule as applied be unfair to the anti-gay viewpoint? Yes, in that “Homosexuality is shameful” would be banned, while “Homosexuality is not shameful” (or, more plausibly, “Gay and proud”) would not. But a gay student would, by the same token, be forbidden to wear a “Fundamentalists suck” T-shirt, while a T-shirt with a picture of Jesus and the Gospel verse “I am the Way, the Truth, and the Life” (or, for that matter, a picture of Lou Dobson) would be permitted, even if some gay student decided that praising Christianity, or Dobson, amounted to condemning homosexuality.
So bigots would be silenced from directly expressing their bigotry, while promoters of tolerance could promote their viewpoint explicitly. That’s life in the big city. If you can’t express your ideas without insulting a fellow-student, you have the undisputed Constitutional right to STFU.