As repulsive as such shirts are, I’m really not convinced that it’s constitutional to ban them (assuming that shirts saying things such as “Silence=Death” are allowed). What do folks think?
Daniel
Interesting question. As much of a free speech advocate as I am, I have to agree with the decision. It would seem to fall into the “yelling ‘fire!’ in a crowded theater” category. Gay students have enough to contend with without a public display of that sentiment possibly exacerbating an already tenuous situation.
I have a question: if the shirt in question said “Black people are stupid and lazy”, would we even be having this discussion?
Or “Christians are intolerant” or “Women should be submissive”?
FWIW, in a related story:
Here are 10 T-Shirt designs found in a matter of moments on Google:
- Fuck Allah
- Christ: Con Artist
- Beat That Pussy
- I Want YOU to Suck My Dick
- Katrina Aqua Roofing Company
- Kill Whitey
- Adam & Eve…Not Adam & Steve
- I’m Not Handicapped, I’m Just A Jackass
- Confederate States of America
- Love Him or Hate Him - Hitler Killed Alot of Jews.
Wanna ban some of them, all of them?
Guarantee if you asked 10 people to rank them in order of offensiveness; from least to most controversial, you’d get 10 different answers. Banning any type of clothing (or lack thereof) under the premise they’re worn by minors in a public space puts you on the same side of those calling for school uniforms. Like it ot not, supporting free expression is usually an all or nothing proposition.
Am I missing something? The bans are not universal, “you cannot sell these t-shirts anywhere in the state” thing to companies, but rather they are ban on students wearing them to school.
I don’t see your point JohnBckwld
Part of the problem is that students are compelled to attend school, so they cannot avoid the offensive slogan. In other places, people are more free to be offensive because those that are offended can avoid them more easily. It’s freedom of speech, and not freedom to be heard.
Yes, actually, they can avoid the offensive slogan. In Cohen v. California, those offended by a jacket reading “Fuck the Draft” worn in a courtroom were told to avert their eyes if they wanted to avoid the offensive slogan. A courtroom has compulsory attendees just like a school has, and offensive slogans are protected there.
And yes, if his shirt said that black people are stupid and lazy, I’d be defending his right to be an idiot. Same thing if it said that Jews would burn in hell. If it suggested that, or glorified in, violence against black people, Jews, or gays, I’d sing a different tune.
Link, incidentally, to a very similar thread from almost exactly two years ago. As far as I can tell, the exact same argument apply in this case for protecting the student’s right to wear a shirt, except that this time around, the folks on the other side of the issue have some legal backup :).
Daniel
I really do see the arguments towards choosing to view this decision as being problematical.
I also believe that it is merely an extension of the powers that school administrators have had for ages to remove things, and persons, who are deemed to be disruptive and may interfere with the school’s primary mission: educating students.
I think that previous cases apply very heavily. A quick overview, culled from the previous thread:
Cohen vs. the State of California, in which a fellow’s right to wear a jacket saying “Fuck the Draft” in a courthouse (another environment that’s government run and that people have to show up at) was protected, because (central to the case) people can avert their eyes from material they find offensive.
Barber vs. Dearborn, in which a student’s right to wear a shirt labeling George Bush as “International Terrorist” is protected, despite its hyperbolic nature, because other political shirts had been allowed.
Hazelwood vs. Kuhlmeier is the landmark case limiting student free expression, but it’s got a vital clause in it:
In other words, Hazel’s rules allow principals to limit what appears in a school newspaper, but this ruling does not apply to student expression “that happens to occur on school premises.” As long as he wasn’t printing the shirt in art class, this case doesn’t apply.
Tinker vs. Des Moines is the classic case. I’m going to quote extensively from this case, because it is highly relevant:
I don’t think a shirt policy that allows some political speech but not other political speech can pass constitutional muster. I’m surprised at the district court.
Daniel
I think that schools have to be given a good amount of leeway in setting behavioral standards, since they act in loco parentis. If the court said that adults couldn’t wear such shirts in public, I’d have a real problem with that. And you do get into a bit of a bind when you have HS students who are 18 years or older.
Generally, I’d like to give parents the right to bring up their kids as they see fit. Since th parents select the school board members (either directly or indirectly), I say leave it up to them. If the kids want to wear such clothing outside of school, fine. But there is not an urestricted right to free speach at any place and at any time.
I think this comes under the Hazelwood decision, and will be overturned using that as the precedent. If the “offended” group had been the government rather than gays, the decision would have gone the other way. The Ninth is notorious for things like that.
Daniel, thanks for the links.
I see your point, and you may have the law read correctly.
Having spent half my elementary education in private schools, I have difficulty judging just where lines should be drawn. I still think that deliberately offensive slogans shouldn’t be protected speech. Of course that then leaves open the whole question of where one defines offensive.
I can see where a large number of people would be adamant that “The South Will Rise Again” is on either side of that line, for example.
Don’t schools have the right to regulate clothing for good taste? i.e. can’t they say that, say, art depicting nekkid boobies are verbotten?
Why not simply allow schools to have a rule that any item of clothing that bares an image or writing upon it (other than school or comapny trademarks) can be banned from school premisis if there is any complaint made about it by anyone within the school.
No one needs to wear a “Save the Whales” “NSYNC Suck" or "Kill the FGs” t-shirt, and if anyone raises a complaint about said item of clothing then that clothing can be no longer allowed at school.
I’ll note this is a 9th Circuit case.
The 11th Circuit had a similar case, in Scott v. School Board, where the school’s unwritten policy of banning the Confederate flag was found Constitutional. The two United States Supreme Court cases on point were Tinker and Fraser. Tinker allows school districts to restrict student’s speech if they reasonably fear that certain speech is likely to ‘appreciably disrupt the appropriate discipline in the school’". Fraser allows the prohibition if the speech uses vulgar and offensive terms. In the Scott case, the court found that there was sufficient evidence of racial tensions at the school to justify the restriction under Tinker, and that the Confederate flag could fairly be seen as a symbol of white supremacy, which would justify the restriction under Fraser. I would probably agree with the outcome in Scott.
However, I find myself coming down with the dissent in this case. Although I believe there are only hateful and bigoted reasons for wearing the shirt, I don’t think there was sufficient evidence that there was any disruption of school discipline, or that it was vulgar or outrageously offensive. Now wearing a Fred Phelps shirt may very well be bannable, but this particular shirt, under these particular facts, it doesn’t seem sufficient to allow for the outlawing of the shirt. The kid has every right to be an asshole.
I will note that I find it interesting that some fundamentalist Christians are fighting so hard to exercise their rights to be intolerant. I know one guy who lived about 2,000 years ago who would be a tad bit upset.
I don’t think Hazelwood applies because that case dealt with school sponsored speech and not student speech. Tinker and Fraser are much more applicable.
You are correct. I was thinking Tinker and my fingers were thinking Hazelwood.
Bad fingers! Bad!
Old school teacher from 1969-89 here.
To the best of my knowledge the Supreme Court decision that still stands is that the student has a right to wear what she or he wishes as long as it is not “disruptive.”
That is the simple version and I’m sorry that I can’t cite the case. Perhaps it is the one already cited.
I had fun chairing the dress code committee. We adopted a “no rules” policy – much to the dismay of the administration. But it was in keeping with the law.
As I recall, even anticipating that something might cause a disruption was not enough to ban it.
I don’t think this ruling will pass muster.
Many of you are missing the point. When a student attends school, they give up some (but not all) rights. Think of it as a middle-ground between home and the real world.
At home, there is no free speech and your parents can stop you from wearing a shirt that says “Fuck All Faggots”, “Bush Is a Pussy”, “Osama Rules” or whatever else they want. They can also stop you from wearing your hat sideways or putting on too much makeup when going out. In the real world (such as the court case mentioned dealing with a shirt in a courtroom) free-speech is given a lot of latitude.
So what about a school? A student is allowed some free-speech, but schools are allowed to limit it if the exercise of free-speech is disruptive or creates a danger. In this era of hate crimes on campuses, schools are given a lot of freedom in determining the limits of free speech re: student dress.
Some interesting points made here. I agree that students shouldn’t expect total free speech at school but as at home , we explore the boundaries.
I think the missed opportunity in teaching here was for this to be explored at the school as it is here. You know the students were discussing it on their own.
Wearing a Jesus is Lord or Jesus is the Way, is one thing. Even though some people might be offended by that. Choosing to wear a T shirt that targets a specific group is questionable. Although you may be sincere in your belief why do you feel the need to throw that opinion in the face of those you know will be hurt and offended. Also, if you insist on claiming that right for yourself as an individual do you then extend that same right to everyone else? Imagine a classroom experiment where everyone wears a T that has a slogan specifically targeted to insult some group.
Christians are intolerant bigots etc.
Then ask the students if that’s the kind of society they want.
Regardless, I think the principle has the right to judge the situation and if he or she sees a potential for disruption, make the call. That can promote the same type of discussion.