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.
29 thoughts on “Insulting speech in schools”
Not clear on the difference (esp. to a fundamentalist) of "Homosexuality is not shameful" and "Fundamentalists suck".
How about "Bigotry against homosexuality is bigotry"? "I'm gay and I don't care what James Dobson says the bible means"?
Is it bad if your mother gives green stamps? I sort of associate them with gas stations or something (I think I was a kid when they stopped being given out) but otherwise don't understand. It's not important to the argument, which I think is a good one, but I am curious about it.
THat's all very well provided you get to decide what is insulting, and what is not. I doubt you'd endorse such a plan if most universities were run along the lines of, say, Patrick Henry or Liberty.
Youare trying to draw a line that can't be drawn. IF I can't say "Homosexuality is wrong" because that offends practicing homosexuals, I also can't say "Christianity is wrong" or "Socialism killed 100 million" or, indeed, anything other than a term-paper length treatment of any idea or practice that people identify themselves with. And given that some ideas . . . like the idea that Jesus is the Messiah . . . directly conflict with other ideas equally deeply held that people like to proclaim, such as "Shema Yisroel, Adonai eloheinu, Adonai ehad" . . . you would be opening yourself up to a whole exciting world of lawsuits.
All of which is, of course, irrelevant, since courts cannot defer to administrators at public universities; students enjoy full civil rights as users of a public accomodation (which is why they could be desegregated–this alone should be enough to tell you that procedural changes made for good causes cannot be controlled the way you want to). Private schools have more leeway, but not much more, because they take federal money.
No, no, no
James DOBSON = Stupid Anti-gay bigot (and bible-based baby beater)
LOU Dobbs = stupid anti-immigrant bigot
'I also can't say "Christianity is wrong"'
Umm, isn't Mark arguing that, for places where Christians study? He explicitly rules out "Fundies suck".
There is some fine slicing of salami going on here. I am not at all sure I would want to be a school administrator charged with applying the Klieman Doctrine. Condemning torture and insulting torturers is fine, but insulting torture advocates is out? Must one also avoid insulting slavery advocates, because there might be one on the premises somewhere? Too improbable to be concerned about, you say? Well, a few short years ago I would have thought the need to be solicitous of the hurt feelings of torture advocates to be equally absurd.
Posted by Ken D. at December 2, 2006 02:09 PM
I used to read Volokh Conspiracy everyday, as a self-discipline, to see well-argued conservative viewpoints. Eugene Volokh has always impressed me as "reality-based" and I respect that. Jane Galt's comment, therefore, doesn't surprise me.
Mark has expressed very well a distinction, which divides liberalism from libertarianism. It may well be that, as a legal matter or an administrative matter, it would be better to press for superficially content-neutral time and place restrictions on political expressions, if only because such rules might lead to less legal wrangling or less administrative confusion. I don't want to argue the merits of the legal issue as a legal issue, though I tend to agree with Mark's general drift.
What's interesting to me, is the way libertarians and liberals diverge on issues like this. Both, nominally, favor a policy of "neutrality" and forbearance by officials, in implementing the requirements of an ideal of free speech and free expression.
Libertarianism, generally, strikes me as being part con game, where the objective is to use liberal ideals as a rhetorical framework to promote the substantive goals of an authoritarian or reactionary agenda.
Liberals want to promote social tolerance, so if a school actively promotes propaganda in favor of tolerance of, and civil behavior toward, gay students, and intervenes to limit expression of points of view, which appear to advocate social denigration of, or shaming of, gay students, that's OK with liberals, but not OK with libertarians.
In the libertarian view, of course, the social denigration of minority students is not acknowledged. I guess we are to imagine that, at its heart, the wearing of a T-shirt is part of a bloodless, passionless and pointless intellectual debate between "Gay is OK" and "Gay is Wrong", where school authorities are to remain presumptively neutral.
The political contest, underlying the political expression, is not acknowledged by libertarians. For Volokh, limits on the expression of "offensive viewpoints" is dangerous, because it might be used as a "tool" for the suppression of one side of public debates. (This is a style of argument once raised to a high art by the infamously great John C. Calhoun; government can not be empowered to do good, for fear that the same power may be used to do evil.)
It doesn't seem to occur to Volokh that the expression of the "offensive viewpoints" he defends is part of a political agenda to set and maintain social norms (or law), which entails suppression not just "ideas", but persons.
Why isn't the danger that a rule might be used to suppress one side of a public debate balanced against the possibility that one side of that "debate" will use their vaunted freedom of expression as a tool to suppress and denigrate a segment of the community?
The debate is occurring, because there is a political contest over, say, how gay people should be treated by government and society. Liberals are not neutral in regard to that political contest, but libertarians claim to be.
Part of my disinclination to be "neutral", as a liberal, stems from the fact that I actually listen to the debate, and form opinions about the merits of the arguments. I suppose that, if anti-gay advocates were really convincing, in arguing that homosexuality is inherently or very frequently a moral or psychological disorder, I might feel differently. It's not just that I am rooting, a bit for one side, it is that I think the advocates of tolerance and equal rights for gays have pretty much won the "debate" to date.
And, having won the "debate", to a large extent, gay liberation has won the political contest, as well.
I think Professor Volokh also believes gay liberation has won the debate, at least insofar as they have convinced him, personally. But, Professor Volokh appears to favor a rule, where the fact that the debate has been won, or even that the political contest has been won, is of no import. He derides, "this First Amendment principle [as] somehow omit[ing] speech about controversial issues having to do with race, religion, or sexual orientation."
I don't think the First Amendment omits any of that, but I think the 14th Amendment and a whole lot of supporting public policy comes into play, because the political contest on discrimination because of race, religion or sexual orientation, has been settled. School authorities have a variety of positive obligations, including promotion of civic doctrines, in favor of tolerance and non-discrimination.
It seems to me, as a non-lawyer, that the case is about how to handle the conflicts between the positive obligations of school authorities to prevent disruption and harassment, and to promote civic doctrines of tolerance, and the rights of students to express dissent or advocate for a change in policy.
The idea that school authorities have to be content-neutral between approved civic doctrine and dissent seems distinctly libertarian to me. To liberals, the idea that school authorities should preserve good order in furtherance of educational objectives and that they should promote civic doctrines like democracy, the rule of law and social tolerance is a no-brainer. Libertarians appear to be hostile to the very idea of civic doctrines, as they are generally to the exercise of public authority vis a vis private authority.
Professor Volokh quotes approvingly, ""Under the First Amendment there is no such thing as a false idea." But, I cannot see how such a suspension of judgment can be sustained. We don't debate for the sheer idle perpetual pleasure of it. We mean to find the truth, or to win the contest for power.
Reading my own comment, I think I should clarify one particular point: I don't think school authorities are properly fulfilling their obligations to promote American civic doctrines, when they simply dictate a point of view or set dogma, nor do they act properly to suppress dissent. Given the nature of American civic doctrines, school authorities are obligated to model tolerance and provide opportunities to practice civil political analysis, expression and debate, and to honor and respect First Amendment (and 2nd, 3rd, 4th, 5th, . . . 14th, etc.) freedoms.
In my opinion, a kid, who shows up in a home-lettered t-shirt calling homosexuality shameful, when the school is actively promoting tolerance, is providing a teacheable moment, which will require the teachers to make some fine distinctions, much along the lines Mark has outlined, not just as a administrative matter, but as a matter of teaching. That doesn't settle the legal issue of whether the kid should be allowed to wear the t-shirt. I am not directly addressing that legal issue.
My point is that the legal issue is being misused to imply a denial that the school should be teaching tolerance. It is not OK with me to just say, "fine, say and believe whatever you want anywhere and anytime you want, all beliefs are equal and equally unimportant here".
The libertarian's version of "content-neutral" looks like a subversive and reactionary attack on tolerance as a legal and social norm.
The point is that "the debate had been won" about homosexuality fifty years ago. It is only the liberal committment to allow people to debate obviously wrong propositions, like "women should be allowed to vote", "homosexuality isn't wrong", and so forth, that allowed gays to have a debate that they could win. Having won, the perception of libertarians is that liberal academics are now trying to shut the barn door behind them and declare their opinions about things like homosexuality sacred writ that cannot be questioned. Libertarians are process people: we don't want to give anyone we agree with any tool that we would shudder to see in the hands of someone whose ideas repulse us. As my grandmother used to say, the wheel goes round and round, and sooner or later, the fly on top will be the fly on the bottom. Or read the bit about the devil from A Man for All Seasons for a more sophisticated view of same. For once those that you hate have the power you were so eager to assume (and they *will* get it, eventually), you will find yourself scrambling to assert a procedural claim. At which time you will be ignored as a hypocrite.
I was just going to comment that half the audience wouldn't understand the green stamp remark, and I see one such comment is already here.
As green stamps were given out by retailers, the implication is that Mother (or more precisely, her favors) are available for money.
Where can I get a "Torturers are Cowards" t-shirt?
So let me get this straight. I can wear a t-shirt that says "Jesus Sucks" unless I'm a student in a high school where there is a student named Jesus? Isn't there an equal protection violation lurking here? If I'm a student in New Mexico, one set of rules apply; if I'm a student in, say, Idaho, another set of rules apply.
What you are advocating is indeed scary, and goes to the heart of the First Amendment. School officials have no place indoctrinating students with approved "civic doctrines" in the form you are advocating. What you define as "tolerance" fails to meet the definition. Tolearance does not consist of "everyone must approve of [in this case, homosexual] conduct;" true tolerance is being open to other ideas. What you are advocating is a policy choice; if your argument, and the argument of students opposed to a "homosexuality is shameful" shirt, is as sound as you believe, you'll expose it to the marketplace of ideas, at it will thrive. Suppressing dissent isn't the hallmark of victory, it's the hallmark of a weak argument advocated by those who happen to be in political power. Ms. Galt's grandmother was right – the goal of libertarians isn't substantive justice; it's to maintain a procedural environment where everyone can be comfortable with the power of government, regardless of who is in power.
Jane Galt: "once those that you hate have the power you were so eager to assume (and they *will* get it, eventually), you will find yourself scrambling to assert a procedural claim. At which time you will be ignored"
If and when and where authoritarians gain power, yes, Jane, they will deny procedural claims. Because they don't believe in procedures; that's the nature of authoritarianism — (see George W. Bush, presidency of, for timely examples).
Liberals want due process and rights and procedures; I am a liberal and I want process and procedures. I am just not ready to buy into some stupid libertarian argument for why I should favor particular and naive principles of process and procedure, which empower authoritarians and may hasten the day of their coming to power.
Jane Galt: "we don't want to give anyone we agree with any tool that we would shudder to see in the hands of someone whose ideas repulse us."
That doesn't make you very useful as a political ally to me, as a liberal. You agree with the liberals in principle, but don't want liberals to act with power, because you will shudder when the authoritarians act with power. Great. Shudder, then, Jane and pity me when the authoritarians you so wanted to hasten to power deny my "procedural claim" and call me a hypocrite. That being called a hypocrite part will sure hurt. Ouch. If authoritarians in power are going to deny procedural claims no matter what, because that's what authoritarians do, what possible good does it do for liberals to adopt procedural rules, which disempower liberalism and make it easier for authoritarians to win the perpetual political contest?
Jane Galt: "It is only the liberal committment to allow people to debate obviously wrong propositions, like "women should be allowed to vote", "homosexuality isn't wrong", and so forth, that allowed gays to have a debate that they could win."
That's right, Jane. The liberal commitment allowed debate on those propositions. Not the authoritarian commitment, because authoritarians do not have such a commitment. Liberals had to fight to have those debates, even before liberals could win the debates. Liberals had to have power first, and then the debates and political contest could happen. And, liberals did not think the propositions "obviously wrong" — that's your imaginative and ahistorical construction. Abigail Adams wanted women to have the vote. Jeremy Bentham did not think homosexuality wrong.
Liberals want debate, but we are not complete wankers, who would want to debate "obviously wrong" propositions. We don't want to debate whether the earth orbits the sun, or whether Man evolved from a common ancestor with the Apes; we don't want to totally suppress such debates if others want to have them, in appropriate times and places, but we don't support, say, devoting a significant part of the high school science curriculum to their continued explication.
Liberals want debate and process and procedure, because we know how difficult it is to find the truth, because we favor critical method in pursuit of truth, not because we think truth impossible to find, accessible only by revelation, or merely fashionable. That doesn't mean we suspend judgment willy nilly on every silly proposition ever proposed or having a persistent advocate.
I don't know where Eugene Volokh got the lobotomy, which makes the Confederate flag "ambiguous" to him on the subject of race discrimination, but I did not have that operation, and I am not volunteering on the basis of any libertarian recommendation. As a liberal, I want process, procedure, free expression, tolerance AND rational discretion in their favor, not to their disability.
AnonLawStudent: "What you are advocating is indeed scary, . . ."
I don't see why anything I wrote should be "scary". The kid, who makes a t-shirt proclaiming that homosexuality is shameful to wear at school, at a time when the school is sponsoring a student campaign to promote tolerance is a little bit scary, and should be scary to school administrators, who have an obligation to preserve a safe environment for students. What is that kid thinking? What does the kid think his belief licenses him to do? What kind of action is the kid trying to promote or provoke with his political expression? Is the student advocating intolerance for, and humiliation of, gay students, in opposition to school policy?
I don't know what the rule here should be; I'm not sure that a rule, per se, is needed. I tend to think that some administrative discretion is needed. A teacher needs to confront the student and find out some things about the t-shirt and the student and students of like mind at the school, and make an assessment of, among other things, the potential for violence or harassment of gay students.
I don't think the belief that homosexuality is shameful has to be suppressed, like some medieval heresy. I am looking for a liberal, not an authoritarian response, here. If the student is opposed to this, or any school policy, there ought to be forums to express that dissent, but it doesn't follow that the student should be able to use his freedom of expression to undermine the school's policy, either.
In general, I tend to think the courts should allow administrative discretion, as long as the administration is not just prohibiting dissent broadly, but also actively providing appropriate times and forums for expression of dissent. At the same time, I don't think the administration of a school needs to be so "content-neutral" as to refrain from endorsing tolerance and respect for gay students, whether this particular student agrees or not. The libertarian advocacy of "content-neutrality" is the thing I have an issue with.
As a liberal, I don't want "content-neutrality" per se. I want the school administration to act with deliberate rationality, good will and discretion, which protects tolerance, equality AND dissent, and generally fosters the school's educational purpose.
AnonLawStudent: "the goal of libertarians isn't substantive justice; it's to maintain a procedural environment where everyone can be comfortable with the power of government, regardless of who is in power."
I think liberals want a procedural environment, as you put it, which properly constrains and channels government power. That's a core liberal desideratum.
It is foolish and naive, however, to think that you can elect communists or fascists to power, and still expect another real election after that. "Regardless of who is in power" ain't going to happen; at some extreme, who is in power matters very much, and the rules very little, because, ultimately, power is power to make the rules.
Mark, the moment you wrote, "Abe Bernstein ought to be able to go to school without having to choose between accepting insults and retaliating against them, verbally or physically", I'd have *hoped* that you'd at least have paused to ask yourself, "why?". After all, Abe Bernstein can't expect to go out into the street without having to choose between accepting insults and retaliating against them. What makes school different?
At that point (again, I'd have hoped), a little light would have gone on in your head, and you'd have realized that school isn't anything like the street–it's not a forum for free speech, but rather a place of education. You can't simply speak up in class and say anything you want–some things will get you sent to the principal's office. And you can't just write anything you want on an exam–if you get the answers wrong, you'll fail, and have to take the class again.
For the life of me, I can't figure out how the idea got so popular that educational institutions (whether public or private, primary, secondary or post-secondary) are supposed to be bastions of free speech. I think it started with the idea of "academic freedom"–a complex and subtle privilege granted professors for complex and subtle reasons–which was hijacked by sixties radicals whose goal was to subvert education completely in the service of their radical political ends. Today, of course, it's radicals of a different political stripe who are crying, "freedom", but the ploy is the same: if the paramount virtue is freedom rather than excellence, then skilful politics will defeat sound educational practice every time.
Of course, this is America, where no sparrow falls without the Supreme Court passing judgment upon it. But when the Supreme Court is rewriting the basic rules of student decorum for public schools, wouldn't even Americans start wondering if maybe something's amiss?
Directly above is a long and thoughtful post by Mike O'Hare, taking a viewpoint opposite to mine. Well worth reading, in my view.
I don't have much to add to the debate above, except to say that I'm puzzled that anyone should think I would allow a student to wear a "Jesus sucks" t-shirt, which is a direct affront to those students who think Jesus is God. By contrast, a T-shirt that says "Born-Again Atheist" may offend, but doesn't insult, and I'd allow it.
Also, I thought I made it clear that students should be free to wear anti-torture or anti-torturer T-shirts, but not T-shirts calling Republicans (or conservatives) torture supporters. That's more or less true, but it's a mean thing to say. (I'd put "Liberals like killing unborn babies" in the same class.)
And no, I don't know where to get a T-shirt saying "Torturers are Cowards." If some reader does know, please post something. If not, and you'd like one, let me know, and if there seems to be a market I'll get some printed up.
Since schools have an affirmative duty to protect the sensibilties of the students in order to foster learning, the concept of tolerance should be accorded a primary position such that negative sounding statements of intolerance as to a person's "defined" characteristics that are considered protected, i.e. age, sex, religion, race, and sexual orientation, may be prohibited.
Also, the student, Harper, lost a preliminary injunction against the school. He did not lose his entire case and could proceed to trial at this point. Too often the constitutional law profs write about these cases as if the cases are over when the rulings are in preliminary hearings. I have seen a number of First Amendment cases where it looks grim for "free speech" turn around later in the case. Let's see what other evidence comes out, though it should be recognized that a year before Harper wore his t-shirt, the school district was hit for not taking sufficient steps to protect gay students from harassment from other students. Talk about putting the school in a bind when Harper wore his t-shirt!
Living in Poway, I am surprised there has been so little discussion of the case. Apathy strikes deep around here! Or is that tolerance taken to a level of we don't care about ANYTHING?
"ultimately, power is power to make the rules" is right, but I doubt that many here would like to live in a nation where that was the case. The whole point of a written Constitution is that we as a society (via the Framers) got together in Philadelphia and said, "hey, we're all going to put down certain swords of power," one of which was government control of speech. Meaning that I won't use the power of the State to impose certain things on you, and you won't use the power of the State to impose certain things on me.
In this case, the State, in the guise of a school, chose to "sponsor a campaign on tolerance." As the school's actions demonstrate, they weren't promoting "tolerance," per se, but advocating one side of a specific and controversial policy choice, i.e. that "homosexuality is ok." Once the school crossed the line into advocating a State-sanctioned "correct" policy, the students should not be obligated to refrain from dissenting, including advocating "intolerance" of what they feel is morally wrong, shameful, whatever. Why not trade places with this kid for a moment, and place yourself in say a South Georgia school, located in a military town, that is sponsoring a "Support the War on Terror" day/week/campaign – something that a lot of posters here are likely to disagree with. I know you would certainly want to be able to wear a T-shirt saying "Stop Torture at Gitmo Now," regardless of the feelings of the kid whose dad happens to be an interrogator there. Ideally, the school should be content neutral – it's job is to educate students, not indoctrinate them with a chosen ideology, even if you happen to think that ideology is correct.
Procedure is everything, because everyone has different ideas as to what is substantively correct. One of, if not the most effective procedural guarantee (and sword that we all yielded with passage of the BoR), is the prohibition of the government endorsing one "correct" idea and excluding all others. You and this kid obviously disagree, but one day he may be the one with a majority in Congress, and you'll chafe under what he's trying to indoctrinate into your kids. So really, the problem is the school, not the kid. You can have content-neutral, or you can have advocacy. The one thing that is absolutely unacceptable is the State permitting only one side to advocate, feelings be damned. That so many people even find this a close call is, indeed, scary.
This discussion certainly exemplifies the differences between libertarians and liberals.
Liberals keep saying "tolerance", but in the immortal words of Inigo Montoya, I do not think it means what you think it means. You seem to have it confused with "approval". Here's a clue: Tolerance lets you do what you want, approval spares you anybody insulting you as a consequence.
"In the libertarian view, of course, the social denigration of minority students is not acknowledged."
No, in the libertarian view, of course, it's irrelevant. A free society requires people with thick skins. Sticks and stones, and all that.
Liberals encourage people go go around all bare nerve endings, poised on a hair trigger to be offended, and claim by virtue of that offense the right to order other people about. Unless you're offended by things liberals approve of, of course, in which case it's tough noogies, put a sock in it.
Mark writes: "I don't have much to add to the debate above, except to say that I'm puzzled that anyone should think I would allow a student to wear a "Jesus sucks" t-shirt, which is a direct affront to those students who think Jesus is God. By contrast, a T-shirt that says "Born-Again Atheist" may offend, but doesn't insult, and I'd allow it."
It seems to me that you have to slice this so many ways & in such thin sections that, in practice, given the highly bureaucratic nature of secondary education in the US, that those distinctions become impossible on a pragmatic level. While I am generally in favor of pragmatic, case by case solutions to problems, I don't trust school officials to have the competence to be effectively pragmatic. That's one thing.
The other thing is this. I also don't trust school officials to have the judgment of, say, a Mark Kleiman, in rendering decisions about what is allowed & what is not. It is also important to note that any judgment a school official renders must be communicated effectively to the students in the school, otherwise you get nothing but endless controversy & argument about semantics, intent, rights, freedoms, etc.
Finally, when you get to the place where institutional authority is being exercised to limit certain kinds of speech, you have come to a very dangerous place.
As it happens, several years ago, some students at the university where I teach produced a t-shirt with a picture of their (then all-male) dorm with a club-wielding caveman dragging a woman by the hair toward the building. Some people on campus were understandably offended by the image. When I was directly confronted the issue–several students wore the shirt to one of my classes–I told them I thought it was a dumb & offensive image & that it made me question their judgment, but that they had the right to wear the shirt. Others of my colleagues responded similarly & it wasn't long before those t-shirts disappeared from campus.
"I also don't trust school officials to have the judgment of, say, a Mark Kleiman, in rendering decisions about what is allowed & what is not."
This, I think, is the heart of the matter. "School officials" have custody of your children for thirty hours a week, and are busy telling them all sorts of things that they are obliged by the rules to listen to, copy down, learn, and spout back on a regular basis. If you don't trust them to decide what t-shirt slogans are out of line in a classroom, then you can't possibly trust them to do the rest of their jobs, which means, in practice, that you don't believe in public education, period.
That's fine–lots of people take that position. But please don't pretend that the issue is "free speech" in public schools, when the issue is the existence of public schools in the first place.
No, Dan, you are wrong. There is no logical necessity for me to reject public education because I don't believe that the people in charge of it are qualified to make certain judgments. As a matter of fact, I am strongly in favor of the idea of public education, though frequently critical of its execution. If I reject the utility of standardized tests, which in the judgment of school officials are useful measures of student progress, does it logically follow that I reject public education? Of course not.
As it happens (though this doesn't bear on the logic of your argument or my re4sponse), I think that a great deal of American public education is not about learning but about compliance. You are quite eloquent in your description of it, in fact:
"[Schools] have custody of your children for thirty hours a week, and are busy telling them all sorts of things that they are obliged by the rules to listen to, copy down, learn, and spout back on a regular basis."
The language of "custody," "obligation," "rules," "spout back," etc. is the language of compliance, not the language of learning.
The liberals and the libertarians here are arguing past each other. Liberals: it's not that the libertarians don't recognize that a certain degree of enforced tollerence makes for a better educational environment; it's that they strongly believe that constitutional free-speech protections should prevent a government agency from enforcing such an environment. Libertarians: it's not that the liberals don't understand the 1st amendment; it's just that quality public education is a more important value for them than its strict enforcement in this setting. The fact that Mark writes "I don't want the courts enforcing these standards; I want them, instead, to defer to school authorities except in egregious cases" is a good hint that he recognizes that what he wants school officials to do doesn't exactly fufill the strict sort of neutrality that normal 1st amendment jurisprudence requires.
This tension between the rather strictly libertarian approach to free speech that the constitution requires and the practical requirments of running a good school should be obvious to everyone. At the moment, the courts deal with it by espousing a rather mushy jurisprudence that holds school officals to a different (not very well-defined) standard than other government agents. A better solution would be for us to recognize that our cherished constitutional limits on government are really incompatible with having government-run schools.
Really, this is just another reason why vouchers would be a better system. Not only would they promote educational excelence through education. They would also get government out of the business of deciding which opinions are acceptable for our children and which are not — a business it should never have been in in the first place.
That's great, David. I'm so glad the Founders included the 1st Amendment in the Constitution, so you fashion it as a cudgel to destroy public education. That's makes so much more sense than using free speech to further rational, public debate, I can hardly believe I did not see it earlier.
I love how Bruce's advocacy of "rational public debate" only extends to one side of the issue. If there's going to be a debate, both sides have to be able to speak. But I guess the kid who thinks homosexuality is shameful isn't rational; we all no that no *rational* person could disagree with Bruce on that one.
Bruce: Your response ammounts to a rather sarcastic expression of "that logic, sound as it may be, requires me to repudiate what I want, therefore I reject it". Given that, I'm not convinced that are looking for "rational debate," but for the benefit of other readers, I will respond to one point.
A system of independent schools funded by vouchers paid for by the government certainly counts as "public education" in my book. If we were to institute a single-payer health-care system, you would still call that "socialized medicide," even if hospitals and clinics weren't nationalized, wouldn't you? Such a system would not decrease the size of the public subsidy for education by one dollar. What essential aspect of "public education" requires that the government operate the schools?
1. Mark Kleiman's examples suggest that what's OK is a t-shirt that is positive about (probably about one's own group and its ideas), and what's not OK is a t-shirt that's negative about someone else. "Gay and Proud" is OK; "Fags suck" is not. Under this rule, "Racist and Proud" would also be OK, and "Racists suck" would not.
2. Dan Simon notes that there's a difference between the school and the street — that the school's purpose is to educate. But the more important difference is that a school is a closed society whose inmates cannot choose to leave.
"By contrast, a T-shirt that says "Born-Again Atheist" may offend, but doesn't insult, and I'd allow it."
What about a shirt that had a cross on it and said "Straight and Narrow"?
How about "100% Straight"?
"Definitely not Gay"?
The line is awfully fine.
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