Thursday, July 13, 2006

Student Free Speech

I've struggled with this topic, but I think I've finally formulated a rational, supportable opinion: The Supreme Court screwed up the Tinker case.

I was just reading this post about two different reactions to student free speech. The Independent Gay Forum is by and about gays but is not the typical leftist gay tripe; in other words, I've found interesting and intellectually challenging posts there, and the linked post is one of them.

That post started off with the Tinker case, decided by the US Supreme Court in 1969, which ruled that wearing a black armband to school to protest the Vietnam War was "symbolic speech" and hence could not be prohibited under the 1st Amendment. How does one identify the dividing line between symbolic speech and outright action? How can real speech be limited in certain situations (reasonable time/place/manner restrictions, yelling "fire!" in a croweded theater), but so-called symbolic speech cannot have the same reasonable time/place/manner restrictions? I'm left to wonder if the Supremes weren't smoking some of that good Nevada County sins when they crafted that debacle of a decision.

The linked article then shows two very different responses to free speech at school:

This bit of history is relevant because the Ninth Circuit now must decide whether a California sophomore named Tyler Chase Harper was unfairly sent home from his high school for wearing a t-shirt saying "Homosexuality is shameful." The overt sloganeering is certain uncivil, but is it also political speech protected by liberal jurisprudence? If so, then opponents of the t-shirt must prove it is a form of harassment that keeps gay students from learning in order to have it banned.


Meanwhile, here's another public school culture-war skirmish. At Howell High School in Michigan, when the Diversity Club hung a rainbow flag in a hallway, it was allowed to remain despite a petition by Christian conservatives. That prompted these students to create a Traditional Values Club and produce their own flag. Now, faculty members have voted that both flags should be displayed only in classrooms during club meetings.

It's unfortunate that the comments are not as stimulating as the post itself.

So, given that students can protest a war at school, thereby showing their political beliefs, why can students not show off their religious beliefs? Is it because, in the first place above, it makes others feel bad? I don't get cheery when I see students (or teachers) wearing Che Guevara shirts--should they be banned? Apparently they can't be, according to Tinker. So where does a school draw the line, given Tinker's muddy terrain? Students in my own district, many who were religious Eastern European immigrants, were punished this year for wearing not-gay-friendly shirts to school and protesting outside the school.

The whole field of law is a mess, and it started in 1969.

I'm not very religious. I'm definitely a believer, but no one will ever be able to use my behavior to justify calling me a devoutist (unfortunately). Still, the anti-Christian occurrences in our schools are frequent enough to raise my ire several degrees. The second story is one in a long list of such events, and reflects poorly on the so-called open-mindedness of the staff at that school.

What if students wanted to start a KKK chapter? Obviously a school would not allow such a club. Yet MEChA chapters exist in many schools, and they're a vile, racist organization. Where is the line drawn? Legal/illegal, positive/negative? Under what circumstances might a Traditional Values Club be banned? And is there a freedom of association/freedom of religion argument for such a club? It gets muddy very fast, doesn't it?

This story from New York state is also pretty interesting. A student, as a way of protesting what he saw as overly-strict rules at his school, had a very interesting yearbook quote: "Ein Folk, Ein Reich, Ein Fuerher." Using Hitler's patriotic quote was this student's way of saying that his school administration was running a police state.

17-year-old Galen Barbour submitted Hitler's quote at the start of the school year. It originated as a Nazi era slogan. But that was not Barbour's inspiration, instead he says he was merely protesting against the school's strict policies.

"The school is just this playground for discipline now. They'll bust you for going to the bathroom without a hall pass. They'll bust you for having a coffee mug... I used the quote because to me Hitler in ways represents a historical police state," said Barbour.

Instead of punishing young Galen, the powers that be gave him sensitivity training.

Barbour sat down with three teachers from the high school who had personal ties to the holocaust.

"I'm sure it was an impulsive decision by the student and I'm sure that student probably regrets it by now," said (Superintendent) Keith.

Maybe he could just have worn an armband with a swastika. What would the Tinker supporters have to say about that?

The final crushing of dissent, though, comes at the end of the story:

Superintendent Keith says more faculty advisors will be added to the yearbook staff to make sure controversial quotes will not be overlooked again.

I'm sure they won't be. And then the 1st Amendment arguments will start all over again.


Dennis Fermoyle said...

As you probably know, the Tinker Case was the first step by the Supreme Court in declaring education to be a property right that can't be taken away without due process of law. In his book, The Death of Common Sense, Philip K. Howard says that this has done more damage to public education over the last 40 years than anything else. He's right! (No pun intended.)

EllenK said...

I think that there are too many people that like to pat themselves on the back about how liberal they are by sanctioning activities which if done by any other group would be offensive. For example, in our district Fellowship of Christian Athletes has to meet off campus and cannot have a faculty member as active advisor YET, we are required to make accommodations for Muslim students during Ramadan. In fact in one school in Richardson TX, the parents demanded that their students be allowed to leave in the middle of class for prayer, even though it was not their lunch period and it would have been a scheduling nightmare to try to accommodate all of their schedules with that event. I think this is making its way through the courts right now. I'm not either for or against the expression of religion or politics, what bothers me is that the rules are applies unevenly and often with the appearance of the intent to restrict some groups while promoting others. If that's not a political agenda, then I don't know what is.

J-Mama said...

Symbolic speech CAN indeed be regulated at school under Tinker and subsequent cases (Fraser and Kuhlmeier... which most experts believe weakened students' free speech/expression rights under Tinker)if officials can show that the speech "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." (From the Tinker decision.) Generally, courts have given administrators wide latitude as long as they can demonstrate that the speech in question would substantially disrupt the educational mission of the school and/or "associate the school with anything other than neutrality on matters of political controversy." Obviously, what is deemed substantially disruptive might vary according to community standards...but I'm not convinced that's so bad.

A colleague and I actually spent a couple hours last fall with an attorney who specializes in free speech issues...our intent was to iron out some of these issues early in the school year...he unequivocally advised us that administrators can regulate if the speech could reasonably be deemed disruptive to the pedagogical mission of the school.

It will be interesting to see how the Ninth Circuit guarantee of course that it will stand as the final word.

As for the Christian club in Texas, the club should be allowed to meet on campus like any other extracurricular club...although paid public school faculty/employees cannot function as advisors but custodians (seeing that students are safe, etc.) This standard applies to ANY religious-based student organization and ALL political clubs. Students can pray on campus, as long as the praying does not disrupt class time or interfere with the rights of others.

rightwingprof said...

How, exactly, would praying interfere with the rights of others? Nobody has a right not to be exposed to religion or prayer.

Anonymous said...

EllenK, the first time we go to school on Christmas Day, I'll accept your argument.

Darren said...

Anonymous, your non sequitor makes no sense. Try to be clearer?

J-Mama said...

Rightwing prof,
Easy response to your comment: groups of students praying at lunch, in the halls between classes, at the flag pole before school (as has been practiced at my school), etc. IS allowed. Kids can pray at school. So can teachers.

Teachers/staff/students leading prayer during classtime or before an assembly or some other school-sponsored/sanctioned event is not allowed...those are all examples of ways in which prayer would interfere with the rights of others. Groups of students or even an indvidual student praying out loud during classtime is not allowed. More than likely, a student could pray silently during class with no disruption. (I've had many students tell me that they pray before taking a has never been disruptive. No problem.) Obviously, the issue here is not about being exposed to religion and prayer. I'm certainly not claiming a new right here. Very simply, government-operated public schools must refrain from endorsing a specific religion or even religion in general through its educational mission. (Start with the Lemon v.Kurtzman or Wallace v. Jaffee.) But I think you knew that already.

Ronnie said...

For my political campaign at school I had some fun with my “Are you against Communism? Ronnie Is” posters and the administration fought to ban them. Mr. Miller successfully fought to defend my free speech rights. Now the main problem is what would happen if I were to put up “Are you against Homosexuality (or Religion)? Ronnie Is” posters. Obviously these would be banned and taken down, but what line was crossed? A political system is deemed ok to dislike, while a sexual and religious stance is not. So how do you make a qualifier that allows attacks on Communism while not on homosexuality or religion. At 2 in the morning after awhile of thinking about this I believe you can’t, meaning the system must have a double standard, or outright offend people, or unjustly censor then. So I can see why the Tinker decision went the way it did. Either you lose free speech completely, or you allow things that offend people. Obviously since free speech is a 1st Amendment right they aren’t going to completely throw it out. I really think the problem is that free speech in schools can’t be blatantly thrown out, but yet you can’t have people running around actually causing a disruptive and dangerous environment for students. So they have a double standard system that while on the books your little swastika armband might be allowed, but wont be because it just is too inflammatory. I’d rather have a double standard then not have any free speech at all, but if you come up with something that separates the reasonable from the unreasonable I’m all ears, and I bet the Ninth Circuit Court would be too.

Anonymous said...

EllenK's post suggested that schools harbored restrictive policies against Christians while it promoted the interests of Islam. Her examples were quite asymetric.

A Christian Fellowship was forced off campus--at the same time a Muslim Fellowship was welcomed on campus? No.

Faculty was asked to make undescribed "accommodations" to students during Ramidan. Are we not asked to make "accomodations" for Jewish Holy Days? Accommodations for Christians are built into the school calendar. We don't attend school on Christmas, and my school district has never held classes on Good Friday.

So any contention of anti-Christian, pro-Muslim bias in school policy is without merit. I hope that makes things clearer.

Darren said...

Anonymous, that does make it clearer, thank you.

While you're right, the school calendar does take into account the religious AND SECULAR holidays (Christmas and Easter included as both) holidays that most Americans celebrate, there is a real anti-Christian animus presented by way too many teachers. I don't like it when I see it.

And Ronnie, while I see your point, I think it's a false dichotomy to have to choose between a double standard and no free speech at all. I'm not sure where the line should be, but I'm sure Tinker was wrongly decided by describing acts (wearing an armband) as "symbolic speech". Decking someone is more than saying "I don't like you". The Court didn't clarify the boundaries of such speech because there can be no *clear* boundaries.

Ronnie said...

Right, but there are laws against going up to someone and "decking" them. The idea was to protect things such as wearing an armband, or wristband that has a symbolic meaning, something I believe to be very important to free speech. You could claim that "decking" someone was symbolic speech, but if the court didn't laugh at you while convicting you on assault charges they wouldn't be following the spirit and intent of the law. The double standard only exists because no one has come up with the right boundaries since any boundary would either cause extremely offensive material to be allowed, or take away too much freedom of speech. All I was saying is that I'd rather had a double standard then the line tilted to far to either side.

J-Mama said...

Perhaps there exists an anti-Christian animus on the part of too many teachers, although I have yet to see much if any in my career. If I did I wouldn't like it either. However, I don't think that was the point of the original post nor do I believe that Ellen's comments demonstrate such a thing. Unfortunately, it is far too easy to let so-called liberal v. conservative "values" rancor pull us completely off point whenever the First Amendment is raised. While I often relish the jousting myself, it too rarely enlightens these days. Thanks for keeping this a restrained and intelligent conversation.

Darren said...

What? Restrained and intelligent? Wow, J-Mama, this blog isn't often graced with those adjectives. Thank you!

Darren said...

Oddly enough, I just stumbled on a post I wrote at the beginning of this past school year. Anti-Christian animus :-)