School allows speech on one side of an issue and not the other - Homosexuality

[treis]

I see your point Hamish but I still think my original question is valid.

[lissener]

@treis

I see your point Hamish but I still think my original question is valid.

Sorry treis, still not a valid comparison: you’re comparing a behavior to a personhood. Homosexuality requires no behavior to exist: it’s like blondeness or tallness or North or algebra. It just is.

Premarital sex is a constellation of behaviors and beliefs.

Two entirely different animals. Not even apples and oranges; more like comparing a Canada goose to a paperclip.

[treis]

I disagree. I think everyone has fantasies/urges to have premaritial sex with someone. The act is just the fruition of those urges its the same thing with homosexual sex.

[burundi]

@depocali

I don’t disagree with Tinke, as it is still good law, however I believe that Tinker is not necessarily the controlling precedent here. In BETHEL SCHOOL DIST. NO. 403 v. FRASER, 478 U.S. 675 (1986) the court distiguished some speech from that protected under Tinker:

They sure did. On the one hand, in Tinker, kids were silently wearing an article of clothing that expressed their viewpoint on an issue. On the other hand, in Fraser, a kid gave a long, sexually-explicit speech to a group of students that were required to attend either the speech or go to study hall; once they were at the speech and realized its contents, they did not have the option to leave. Here’s what Fraser says about the difference between the circumstances in Tinker and Fraser:

This Court acknowledged in Tinker v. Des Moines Independent Community School Dist., supra, that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Id., at 506. The Court of Appeals read that case as precluding any discipline of Fraser for indecent speech and lewd conduct in the school assembly. That court appears to have proceeded on the theory that the use of lewd and obscene speech in order to make what the speaker considered to be a point in a nominating speech for a fellow student was essentially the same as the wearing of an armband in Tinker as a form of protest or the expression of a political position.

**The marked distinction between the political “message” of the armbands in Tinker and the sexual content of respondent’s speech in this case seems to have been given little weight by the Court of Appeals. **

[emphasis added]

What, pray tell, makes the article of clothing peacefully worn by the asshole in the case at hand (worn to protest a matter that was germane to the student body) more akin to a sexually explicit speech before a captive audience than to Tinker’s article of clothing peacefully worn by a student to protest a matter that was germane to the student body?

I guess then it all comes down to whether or not one believes that the quote is offensive. I believe I’ve made myself clear in that I do believe the Leviticus 18:22 to be offensive speech. This may be ploitical and protected, but not in a public school environment. It is different from that same student petioning or demonstrating before the school board.

You’re wrong in this guess. It comes down to whether the speech in question was sexually explicit and indecent, and to whether it presented a substantial disruption of the educational environment, not whether the ideas behind the speech were offensive to anyone in particular.

As for whether homosexuality is a behavior or a trait, that’s irrelevant. Inasmuch as traits aren’t sins in Christian theology, this asshole was apparently meaning to refer to homosexuality as behavior. But even were he referring to it as a trait, his speech was still constitutionally protected.

Daniel

[Left_Hand_of_Dorkness]

@burundi

They sure did.

Son of a, as B.D. would say, $%@&*! That was me, not burundi.

Daniel

[depocali]

@burundi

What, pray tell, makes the article of clothing peacefully worn by the asshole in the case at hand (worn to protest a matter that was germane to the student body) more akin to a sexually explicit speech before a captive audience than to Tinker’s article of clothing peacefully worn by a student to protest a matter that was germane to the student body?

I don’t deny that in the specific case the offensive speach was sexual innuendo in the context of a voluntary student assembly. However, the issue is that many courts, including the 10th and 11th circuit have interpreted this as an expansion of Tinker (rather than a rejection) as to the power of school officials to regulate speech, including symbolic speech. In West v. Derby Unified School Dist. No. 260, 23 F. Supp.2d 1223, 1233-34 (D. Kan 1998), aff’d 206 F.3d 1358 (10th Cir. 2000)(quoting Fraser, 478 U.S. at 683). the 10th circuit found that wearing a confederate flag T-Shirt could be regulated by a school official.

We also conclude that the Derby School District did not violate T.W.'s First Amendment right to free speech when it suspended him from school for three days after he drew a picture of the Confederate flag during class in violation of the school district’s harassment and intimidation policy.(4) To be sure, T.W.'s display of the Confederate flag could well be considered a form of political speech to be afforded First Amendment protection outside the educational setting. And while students do not “shed the constitutional rights to freedom of speech or expression at the schoolhouse gate,” Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503, 506 (1969), the Supreme Court has recognized that the First Amendment rights of students in public schools are not automatically coextensive with the rights of adults in other settings, and must be applied in light of the special characteristics of the school environment. A school need not tolerate student speech that is inconsistent with its basic educational mission even though the government could not censor similar speech outside the school

Following the trend, the 11th circuit agreed in Scott v. Sch. Bd. (3/20/2003, No. 02-14931) agreed that Fraser has expanded on Tinker and allowed school officials greater latitute to enforce a learning environment where hate is not a part of it.

I return to my earlier premise that it all comes down to whether or not the message on the T-Shirt is hateful, and thus it is not protected speech in the public school forum. The same T-Shirt is protected speech outside the school, but not in it. It is different to wear a shirt proclaiming your political thoughts (such as one that states that you do not believe that homosexuals should marry) to one that states that they are an abomination (in a public school setting); one promotes debate, the other is hate speech.

[Eonwe]

Left Hand of Dorkness,

In one of the concuring opinions, justice Stewart says:

“I [515] cannot share the Court’s uncritical assumption that, school discipline aside, the First Amendment rights of children are co-extensive with those of adults. Indeed, I had thought the Court decided otherwise just last Term in Ginsberg v. New York, 390 U.S. 629. I continue to hold the view I expressed in that case: “[A] State may permissibly determine that, at least in some precisely delineated areas, a child–like someone in a captive audience–is not possessed of that full capacity for individual choice which is the presupposition of First Amendment guarantees.” Id., at 649-650 (concurring in result). Cf. Prince v. Massachusetts, 321 U.S. 158.”

…which makes sense to me. The two things that haven’t been answered to my satisfaction that keep me from agreeing with you are:

As a teacher I have a right and a duty to interfere when kids use language that I deem inappropraite or offensive, both in and outside of the classroom. This does not involve shutting down expression of opinion, but does involve silencing of insulting, harmful, or spiteful language, and is in general up to my discression. Under what circumstances am I allowed to do this; to regulate students’ speach? This leads to question two…

… how is “homosexuality is a sin” not insulting or spiteful? I’m still not getting how that statement becomes a political opinion and not an insult.
I guess the upshot of those two is, it seems that under your outlook a school cannot discipline any student unless he or she breaks the law, which is clearly not the case.

[Left_Hand_of_Dorkness]

@eonwe

Under what circumstances am I allowed to do this; to regulate students’ speach? This leads to question two…

… how is “homosexuality is a sin” not insulting or spiteful? I’m still not getting how that statement becomes a political opinion and not an insult.

Question 1 is answered by Tinker; please reference it in your questions.

Question two is a little ambiguous. Remember that in Christian theology, we are all sinners; stating one specific sin is not especially significant. Even if it were, however, it is not insulting in the same way that calling someone “faggot” is insulting: rather than engaging in an ad hominem attack, it is stating an unpopular (and in my opinion stupid and bigoted) religious view. (The statement does have political overtones, but even if you’re dead-set on denying that, the fact that it’s religious in nature brings it to one of the highest forms of protected speech).

@depocali

I return to my earlier premise that it all comes down to whether or not the message on the T-Shirt is hateful, and thus it is not protected speech in the public school forum.

Hold on, there: that wasn’t your earlier premise. Your earlier premise was that it comes down to whether the shirt is OFFENSIVE by the standard set in Bethel. Nothing in Bethel was hateful – it was just some smack-talking about sex. You’re changing the argument here: don’t think I don’t notice!

But your new court case is, admittedly, far more relevant than the total irrelevance of Bethel. Indeed, this is the first thing I’ve seen that comes close to offering a court opinion suggesting the shirt could be forbidden.

But let’s look at some hugely significant differences between the two cases.

@Derby High School manual

students shall not at school, on school property or at school activities wear or have in their possession any written material, either printed or in their own handwriting, that is racially divisive or creates ill will or hatred. (Examples: clothing, articles, material, publications or any item that denotes Ku Klux Klan, Aryan Nation-White Supremacy, Black Power, Confederate flags or articles, Neo-Nazi or any other “hate” group. This list is not intended to be all inclusive).

Okay, so first things first: the student handbook specifically forbade the action that got the student in trouble. Do we have an analogous case here? Not according to the evidence as presented. Second, we see that the handbook mentions both sides of the issue: neither black power nor Confederate flags symbols are allowed. In essence, students aren’t allowed to have this particular conversation at all.

@The District Court

In August 1997, T.W. signed an acknowledgment form stating: “‘I have reviewed and understand the disciplinary policy at DMS as outlined in the DMS agenda book.’” Id. Teachers at the middle school then reviewed the policies in the handbook with students, including T.W. Nevertheless, T.W. became involved in numerous disciplinary incidents during the 1997-98 school year. At one point, T.W. received a three-day suspension for calling another student “blackie.” After another incident, T.W. had an administrative conference with the school’s assistant principal, who reviewed the harassment and intimidation policy with T.W. Accordingly, T.W. was well aware of the school district’s policy prohibiting the drawing of the Confederate flag.

So here we see that this particular student has used specific perjoratives against specific students, and that he has had the rules discussed specifically with him. Do we have an analogous case yet?

@The District Court

Of course, school officials’ “undifferentiated fear or apprehension” of a disturbance is not enough to overcome a student’s right to freedom of expression. Id. at 508. The evidence in this case, however, reveals that based upon recent past events, Derby School District officials had reason to believe that a student’s display of the Confederate flag might cause disruption and interfere with the rights of other students to be secure and let alone.
…
The district experienced a series of racial incidents or confrontations in 1995, some of which were related to the Confederate flag. The incidents included hostile confrontations between a group of white and black students at school and at least one fight at a high school football game. The Racial Harassment policy enacted in response to this situation was clearly something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

So here we have a specific history of disruption related to the specific banned symbol. Do we have an analogous case yet? That is, is there a history of homophobic biblical verses causing fights at this high school?

I say we don’t have an analogous case. By having the Day of Silence, the school opened up the conversation about gay rights and the morality of homosexuality. We don’t know of any history of violence at this school that was perpetrated by Biblical verses, or of any specific rules this school had against Bible verses. We don’t know of this particular student getting into trouble through harassment and intimidation before.

Without that history of violence, Derby High School wouldn’t have met the standard for forbidding the Confederate flag, as I read it.

There could be a case that shows that Bible verses have been used in the surrounding community to specific justify violence against homosexuals, and that this was well-enough known at Watauga High School that the student should have known better. Even so, the school’s clothing policy didn’t come close to restricting anti-gay t-shirts. All this history of anti-gay violence in Boone would demonstrate is that the school might be within its rights to change its manual to forbid anti-gay messages on T-shirts.

Daniel

[Eonwe]

@Left Hand of Dorkness

Question 1 is answered by Tinker; please reference it in your questions.

I’ll give it a try…

(all bolding mine)

There is here no evidence whatever of petitioners’ interference, actual or nascent, with the schools’ work or of collision with the rights of other students to be secure and to be let alone. Accordingly, this case does not concern speech or action that intrudes upon the work of the schools or the rights of other students.

I would argue that in fact, by singling out specific students and calling them sinful and implying that they are going to hell (I made a few semantical changes that I hope you’ll allow me) this student did in fact infringe upon other students’ right to be let alone, and to feel secure. I think the argument could be well made (though it is not a given) that gay students’ security is compromised by blatant and ubiquitous expression of traditional ‘gay=sin=hell=evil’ opinions in the school, particularly in light of the fact that gay teens for one reason or another have a higher propensity for depression and suicide than straight teens.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.

I’d say see above. In this case we have not merely an expression of an unpopular viewpoint, but a condemnation of fellow students which could be construed as not ‘letting them alone’.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students.

This is the most unclear part of this whole thing. What are those ‘special characteristics’ of the school environment?
Again, the issue at hand seems to be how can an educator repremand any student for any language that is innapropriate? Parents at home can send kids to their rooms for any reason whatsoever due to their rights as parents. The role of teachers is perhaps less clear, yet still they must have some discression. I guess the key up above is the ’right… to be let alone’. Through this a teacher certainly could do most of what he or she needs as far as disciplining speach/behavior.

Still, what does it mean ‘to be let alone’? Surely not the right to not be exposed to speach from others. Then what? A student walking the halls at lunchtime repeating the word ‘bitch’, for example, clearly ought to be reprimanded, but under what right does the teacher do so? I’m still not seeing how that situation would fall under this ruling.

[Shodan]

@Hamish

To avoid the brewing semantic argument that explodes whenever this point is made, allow me to point out that when we talk about “homosexuality,” we’re usually refering to the desires (love, companionship, sexual desire), and not the sexual act.

Not in this case. The Leviticus verse the kid cited (on his T-shirt) refers specifically to behavior, not orientation.

“You shall not lie with a man as with a woman; it is abomination”, not “You shall not lie with a man as with a woman; you are abomination”. And I am sure this discussion will not go on too long before someone says that the idea of homosexuality as a kind of person instead of a sort of behavior was unknown to ancient peoples.

Don’t know if it is true or not. I do know that the mainstream Christian position is that homosexual orientation is not a sin. Homosexual behavior is. It is the difference between being tempted and falling.

FWIW.

@Eonwe

… how is “homosexuality is a sin” not insulting or spiteful? I’m still not getting how that statement becomes a political opinion and not an insult.

It doesn’t have to be a political opinion. It is a religious opinion, and therefore protected. The fact that people find it insulting does not qualify it for suppression, anymore than those who find the idea of the National Day of Silence insulting can compel those who participate in that to talk.

You can say “homosexuality is a sin” or “abortion is a sin” or “racism is a sin” even if gays or abortionists or racists find it insulting.

There is no right not to be offended by disagreement.

Regards,
Shodan

[Eonwe]

@Shodan

FWIW.

It doesn’t have to be a political opinion. It is a religious opinion, and therefore protected. The fact that people find it insulting does not qualify it for suppression, anymore than those who find the idea of the National Day of Silence insulting can compel those who participate in that to talk.

You can say “homosexuality is a sin” or “abortion is a sin” or “racism is a sin” even if gays or abortionists or racists find it insulting.

There is no right not to be offended by disagreement.

Regards,
Shodan

I guess we get into the whole question of whether or not a person chooses to be gay or if it is part of who they are, which is, I think, if it is up for debate, a debate better had in a different thread than this. But, I will say that my take is that neither abortion nor racism is a part of who a person is (abortion isn’t even a state of being, it’s an action) while homosexuality is, which is why I’m taking the position I am.

[Shodan]

@Eonwe

I guess we get into the whole question of whether or not a person chooses to be gay or if it is part of who they are, which is, I think, if it is up for debate, a debate better had in a different thread than this. But, I will say that my take is that neither abortion nor racism is a part of who a person is (abortion isn’t even a state of being, it’s an action) while homosexuality is, which is why I’m taking the position I am.

I agree that it is irrelevant.

The kid in the OP is expressing an opinion about behavior - specifically, homosexual behavior (hence the quote from Leviticus). People are allowed to express their opinions on behavior - homosexual behavior, racist behavior, abortions, who to vote for, whether or not to participate in the National Day of Silence - because that is a right guaranteed by the First Amendment. The fact that I approve of the behavior and you don’t doesn’t give you the right to stop me from expressing my opinion.

But it doesn’t matter if people are born gay or not.

Being female, for instance, is certainly part of who a person is. You have no choice as to whether or not to be born with XX chromosomes. But that does not mean that someone can suppress an opinion about that non-voluntary characteristic.

One person says, “Women are weaker than men”, and the other person says, “Women are more nurturing than men.” You cannot suppress one opinion and not the other, because you agree with the one and detest the other. You can argue against either, with facts, or publicly make it clear that you agree whole-heartedly with one and reject the other completely. But you cannot stop either from trying to make her case.

The free marketplace of ideas requires freedom for all ideas - not just the ones I agree with.

Regards,
Shodan

[clairobscur]

@Eonwe

I’ll give it a try…

I would argue that in fact, by singling out specific students and calling them sinful and implying that they are going to hell (I made a few semantical changes that I hope you’ll allow me) this student did in fact infringe upon other students’ right to be let alone, and to feel secure. .

Hmmm…since both sin and hell are religious concepts, hence of no significance from a neutral observer’s point of view, how one (or a court) could state that calling someone a “sinner” , or saying that he’s “heading to hell” are objectively attacks against this person?
“You’re a sub-human” is objectively an insult, but considering “you’re a sinner” as such imply that you accept a given religious tenet as having an universal value. Similarily, saying that someone will “end up on a stake” can be considered as a threat, but saying that he’ll “end up in hell” can’t be as long as you don’t accept the existence of hell as an objective reality.
Hence a neutral observer (and I assume that a court ruling about this issue or a public authority regulating speech or implementing dress codes would be neutral) can’t place both statements in the same category without at the same time endorsing the religious beliefs these concepts are resting on.

[ambushed]

@Left Hand of Dorkness

People in the workplace may have their free speech limited by their bosses precisely because they’re not obligated to be at that job. Students are compelled to be at school, and so they consequently receive greater free-speech protection.

If by that last you mean that students on public school property have significantly less free-speech rights than adults, then you’re precisely correct! That’s why students have the right and the need to be protected from certain forms of odious speech such as the religious hate speech in question, and thus why that student deserved discipline. Other students are not allowed to just walk away, which is the very hallmark of a case in which free speech needs to be curtailed.

Calling religious hate speech “political speech” doesn’t automatically mean it’s protected, especially not in this case. The t-shirt amounted to hate speech that was forced upon a captive audience and was therefore impermissible.

[kung_fu_lola]

@treis

Either it is acceptable for students to express their opinions on homosexuality or it isn’t.

So I can wear a t-shirt that says; “treis shouldn’t be screwing his wife”.

Because it is just so polite and appropriate to tell consenting adults what they can and can’t do with their genitals. :rolleyes:

[Shodan]

@kung fu lola

Because it is just so polite and appropriate to tell consenting adults what they can and can’t do with their genitals. :rolleyes:

If it is polite and apppropriate to do so with a National Day of Silence, it is appropriate to to be free to speak against the notion as well.

Or you get, as has been repeatedly pointed out, “You can speak because I agree with you - you can’t because I don’t”. Which is content-based censorship. Which is un-Constitutional.

People do not lose their rights because other people, or even a majority of people, disagree. It is a lesson that has to be learned over and over, because attempting to silence those whose opinions you dislike is a constant temptation. Back during the 40s and 50s it seemed to come from the Right. Nowadays, it comes at least as much from the Left as well.

Regards,
Shodan

[kung_fu_lola]

@Shodan

If it is polite and apppropriate to do so with a National Day of Silence, it is appropriate to to be free to speak against the notion as well.

Then you’re missing the point of the Day Of Silence. As has already been stated, it is protesting violence against sexual minorities. Not heterosexual sex or nuclear families. The mere existence of homosexuality/bisexuality/transexuality does not in any way threaten the existence of heterosexuality. It never has and it never will.

No one cares whether two men having anal sex with each other grosses you out. Just don’t hit them with a baseball bat over it.

[Shodan]

@kung fu lola

Then you’re missing the point of the Day Of Silence. As has already been stated, it is protesting violence against sexual minorities. Not heterosexual sex or nuclear families. The mere existence of homosexuality/bisexuality/transexuality does not in any way threaten the existence of heterosexuality. It never has and it never will.

No one cares whether two men having anal sex with each other grosses you out. Just don’t hit them with a baseball bat over it.

And this has nothing to do with the right of a student to express his opinion that homosexuality is a sin.

The mere existence of disagreement does not in any way threaten the existence of homosexuals, any more than it threatens heterosexual marriage.

No one cares whether the idea of someone believing that homosexuality is a sin grosses you out. Just don’t try to deprive them of their right to freedom of speech over it.

Regards,
Shodan

[foolsguinea]

@Hamish

I don’t know what you think the Day of Silence is, but let me inform you that it’s a protest against violence against sexual minorities. Would you be opposed to observance of a similar day against racially-motivated violence?

Pedophiles are a sexual minority. Also necrophiliacs. If behavior qualifies one as a protectable minority, then fight-picking right-wingers are a behavioral minority, too. This way lies madness.

[spectrum]

@cichlidiot

I agree with treis’s post, and believe it was well spoken. A lot of people do believe homosexuality is a sin, and though I disagree, I don’t think silencing the kid with the t-shirt, is an answer to a protest of the silencing of others.

The t-shirt was a direct, hateful, personal and specific attack on other students in the class. That cannot be allowed, no matter what.

The silence is not an attack on any other students, but instead a show of solidarity by the oppressed, innocent, downtrodden but brave gay and gay-friendly students of the school. It should be supported as a sign by the community that oppression against innocent minorities will not be allowed.

Would you allow a kid to wear a shirt that said “Beat up Christians?” I would nope not. But the Christian students are free to wear their idiotic “Jesus Loves You!” shirts, so long as they’re not targetting a specific group with hatespeech like this worthless little Klansman-in-training was.