I usually respond to comments in the comment section. Sometimes, though, a comment is of such length or its content is so notable that an entire separate post is warranted.

I got one of those last night, in response to my (widely read, thanks to the Houston Chronicle) post entitled "First Amendment (Revised Edition)". The commenter, Jan L Perkins, rather vehemently disagrees with me, and clearly put a lot of time and thought into her words. In doing so, she fell into what I see as some common errors -- errors that I want to correct publicly. I don't do this to ridicule her (in fact, I praise her efforts), but to attempt to lay to rest certain incorrect notions regarding the First Amendment and schools.

So let us begin with the fisking of Jan's comment.

WOW – a court makes a ruling that a school has the right to enforce rules, which are designed to prevent disturbance between different factions within the school, and the court is now violating the US Constitution – how about that – and I thought it was just attempting to head off the conflict before it became nasty – but, of course, perhaps the objection is because the T-shirt read “homosexuality is shameful” rather than “homosexuality was created by God, too”

Several points here.

First, as a government entity, public schools must conform their rules with the rights guaranteed under the Constitution.

Second, schools cannot, as a rule, permit speech on one side of a controversial issue and not ont he other. The school had been more than willing to permit and sponsor a so-called "Day of Silence" (complete with literature distributions and students disrupting the academic mission of the school by opting out of verbal participation in class as a form of political/religious/social expression). It could not then turn around and argue that a single student expressing the opposite perspective in a passive manner (via a t-shirt) constituted a material disruption or a threat to good order and discipline. In fact, the situation that existed appears very close to that set forth in Tinker v. Des Moines, which is the major precedent dealing with the First Amendment rights of students.

The problem posed by the present case does not relate to regulation of the length of skirts or the type of clothing, [508] to hair style, or deportment. Cf. Ferrell v. Dallas Independent School District, 392 F.2d 697 (196 ; Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538 (1923). It does not concern aggressive, disruptive action or even group demonstrations. Our problem involves direct, primary First Amendment rights akin to "pure speech."

The school officials banned and sought to punish petitioners for a silent, passive expression of opinion, unaccompanied by any disorder or disturbance on the part of petitioners. 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.

Only a few of the 18,000 students in the school system wore the black armbands. Only five students were suspended for wearing them. There is no indication that the work of the schools or any class was disrupted. Outside the classrooms, a few students made hostile remarks to the children wearing armbands, but there were no threats or acts of violence on school premises.

* * *

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. Certainly where there is no finding and no showing that engaging in the forbidden conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school," the prohibition cannot be sustained. Burnside v. Byars, supra, at 749.

* * *

It is also relevant that the school authorities did not purport to prohibit the wearing of all symbols of political or controversial significance. The record shows that students in some of the schools wore buttons relating to national political campaigns, and some even wore the Iron Cross, traditionally a symbol of Nazism. The order prohibiting the wearing of armbands did not extend to these. Instead, a particular symbol--black armbands worn to exhibit opposition to this Nation's involvement [511] in Vietnam--was singled out for prohibition. Clearly, the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.

In our system, state-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students. Students in school as well as out of school are "persons" under our Constitution. They are possessed of fundamental rights which the State must respect, just as they themselves must respect their obligations to the State. In our system, students may not be regarded as closed-circuit recipients of only that which the State chooses to communicate. They may not be confined to the expression of those sentiments that are officially approved. In the absence of a specific showing of constitutionally valid reasons to regulate their speech, students are entitled to freedom of expression of their views. As Judge Gewin, speaking for the Fifth Circuit, said, school officials cannot suppress "expressions of feelings with which they do not wish to contend." Burnside v. Byars, supra, at 749.

How very like the events which happened that day at Poway High School! Tyler Chase Harper was passive, did not disrupt or confront, and while he was subject to a few hostile remarks, there was no substantive disruption. For his trouble he was removed from class, questioned by law enforcement, and told by assistant principal Ed Giles that he must "leave his faith in the car" if it was deemed offensive by school officials. This is in blatant contradiction of the major holding of Tinker.

First Amendment rights, applied in light of the special characteristics of the school environment, are available to teachers and students. It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.

It seems that Mr. Giles, along with the rest of the administration of this school and district, slept through that portion of their school law classes while working towards tehir administrator certification.

Similarly, they ignored an even older precedent, that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943).

The Fourteenth Amendment, as now applied to the States, protects the citizen against the State itself and all of its creatures-Boards of Education not excepted. These have, of course, important, delicate, and highly discretionary functions, but none that they may not perform within the limits of the Bill of Rights. That they are educating the young for citizenship is reason for scrupulous protection of Constitutional freedoms of the individual, if we are not to strangle the free mind at its source and teach youth to discount important principles of our government as mere platitudes.

Such Boards are numerous and their territorial jurisdiction often small. But small and local authority may feel less sense of responsibility to the Constitution, and agencies of publicity may be less vigilent in calling it to account. . . . [N]one who acts under color of law is beyond reach of the Constitution.

Oh, and Jan, nice attempt on your part to tar me with the taint of homophobia. You ignore that I did note some anti-homosexuality messages might be legitimately banned as disruptive. You also are unaware of my past writings on incidents of school censorship and punishment of student speech -- posts in which I stand up for students taking decidedly liberal views as well as conservative ones.

As a teacher you know that children do not have all of the constitutional protections afforded to adults.

You are right -- but I never said they did. There are limits placed in the school setting, but as i noted above, they are tightly drawn.

For example, their lockers may be searched without their permission, even over their objections,

True -- but then again, the school owns the locker and makes those search provisions a part of the student code of conduct. A kid does not have to use thelocker, either.

and they may be compelled to submit to drug tests even when there is no probable cause, indeed no cause whatsoever, to believe they have used drugs,

Half true -- the courts have upheld those policies only with regard to participation in extra-curricular activities, not school attendance.

and the case law is replete with decisions upholding limitations on student speech.

And replete with decisions the other way, which make it clear that the ability of schools to limit student speech is, dare I say it, limited to narrow circumstances.

Those are just three of the ways in which they do not have the same rights as you may have as an adult.

They are three ways in which you misrepresented the holdings of the courts regarding the rights of students under the Constitution.

Even as an adult it is well established in courts all over the country that one may not yell “fire” in a crowded theater when there is no fire.

Nice try -- the only problem is that hte quote you are reaching for refers to FALSELY crying "fire" in a crowded theater, because it needlessly and recklessly puts individuals in danger. One could, for example, shout "fire" in a crowded theater if there were a fire. But the expression of a political, social, or religious oipinion could never fall under that rubric, for the expression of a dissenting opinion is not the sort of thing likely to cause a crowd to stampede and trample the vulnerable under foot.

This school may well have had good reason to believe that the T-shirt in question was crying “fire” in a theatre.

The school could never have legitimately taken such a view.

I should not need to have to point out that a “Day of Silence” is not the same as a T-shirt with a message.

Actually, it is functionally the same, and is even less disruptive than the Day of Silence, for reasons I pointed to above. And given the "leave your faith in the car" policy dictated by one school official, the competing event (the Day of Truth) would have been prevented under the same standard -- and the opinion of the judges in this case would mandate the school prohibitting the event.

In fact, if those opposed to homosexuality had sought to have their own day to express their viewpoint silently and peacefully, then you would be closer to having a valid position, assuming they had been denied that right.

Jan, dear, free speech is free speech is free speech.

The problem with Justice Alex KozinskiÂ’s position as reported by you (I have not read the decision) is that he viewed the school as having taken a position on a controversial topic, when, based solely on your version of the facts, it appears to me that the majority concluded the school correctly saw the difference between a Day of Silence and a T-shirt as the difference between the proverbial apples and oranges, and had the power to act to prevent potential violence.

How was the shirt creating a potential act of violence? Would not the Day of Truth be considered equally impermissible, due to the fact that instead of one student expressing the offending opinion we would have many doing so?

By the way, who is Theriot?

Don't be lazy -- click the link and find out for yourself.

I would note that the phrase “under God” was not in the Pledge of Allegiance until I was nearly out of high school. I was raised in a country Methodist church in the Midwest. My mother ensured that I went to church every Sunday, for which I avow I am eternally grateful, although I was not always so grateful at the time I was being required to get out of bed and go. I do not recall anyone in my community at that time, who spoke either for or against the insertion of “under God” into the Pledge, yet they were all good god fearing country folk. I have no strong personal opinion about the phrase, but I have to wonder why one might believe the sky would fall if it were removed?

I'm not going to engage on that issue -- if you notice, the quote you are referring to is bringing out the fact that the Ninth Circuit -- and one of the judges in this case in particular -- has a perceived hostility towards religious speech that offends minorities, to the point that he has repeatedly sought to ban such speech even when it is clearly protected by the Constitution. It is part of why the Ninth Circuit Court of Appeals has been the most overturned circuit for the last several years -- it is out of step with the Supreme Court precedents and the US Constitution.

Posted by: Greg at 01:14 PM | Comments (2) | Add Comment
Post contains 2243 words, total size 15 kb.