My previous post
provided my initial thoughts of what was admittedly a less than fully engaged reading of the majority and minority decisions in the California based 9th Circuit case of Harper v. Poway Unified School District.
I have now re-read the decisions with a careful eye, including footnotes, and have read the decision of Tinker v. Des Moines
393 U.S. 503, a US Supreme Court decision from 1969, and other decisions including a later Supreme Court opinion from 1986, Bethel School District v. Fraser, 478 US 675
. and Scott v. School Bd. of Alachua County, 324 F.3d 1246, 1249 (11th Cir. 2003).
My conclusion is that it remains a close call as to whether the Poway High School student, Harper, may wear the particular t-shirts on the day of and day after an school sponsored pro-gay rights event ("Day of Silence"). However, because he sought extraordinary relief of a permanent injunction without a more complete record of a jury trial, the 9th Circuit was correct to deny Harper's pre-trial relief against the school district. Because this was a pre-trial proceeding, I would also counsel the US Supreme Court to not take this case because we should wait and see how the rest of the litigation goes.
I would also state, as I do in more detail below, that the US Supreme Court has already ruled against a broad reading of Tinker
, contrary to Justice Kosinski's dissent in the Harper
decision. The duty of schools to promote tolerance and civility will, in most cases, overrule
a student's right to wear a t-shirt that expresses negative
statements against homosexual acts where California law has already established that people who practice homosexuality are a protected class no different than, say, blacks or Muslims. A school has a greater right and duty to discipline students for wearing a t-shirt that denigrates others than one that would express pride in oneself (i.e. You may say, "White Pride" in a t-shirt as opposed to "Black people are inferior to whites" OR you may say, "Proud to love Jesus" as opposed to saying "Reject Jesus: Burn in hell").
The promotion of tolerance is strong in the fish bowl known as schools, where schools have a separate and abiding duty to act "in loco parentis
", which means they have semi-parental and affirmative duties to protect the feelings of their students. Schools must be more vigilant against negatively expressed messages by students against each other than postively expressed ones, even though for example, "White Pride" statements have a rather ugly history.
Thus, my initial conclusion about the "Hitler was right" or "Hitler should have finished the job" t-shirts worn on the day of studying the Holocaust is no longer a close call, as I thought in my initial post. A school principal, under my more careful reading of the law, would be acting with appropriate discretion in having the student change the t-shirt or not be allowed in class.
However, I still have sympathy for Harper's position to this extent: We as a society have to have some
tolerance of intolerant
messages in the fish-bowls known as public schools, where people are in a group and have to get along. As I note below, Harper's t-shirts were worn for a limited time and responded to the particular event by expressing a religious viewpoint that may not be completely eradicated in the name of that duty of civility and tolerance. That is why, while the motion for a permanent injunction was properly denied at this point, perhaps a full trial and oral testimony and expert witnesses best serves our further understanding of the tension between religious speech and the secular demand for tolerance.*
Seventeen years after Tinker
, the US Supreme Court, in the Fraser
decision, held a school had a right to discipline a student who delivered a clever student council candidate's nomination speech because it was filled with sexual innuendo (The speech contained no profane words, and could only be understood by those who already
knew the common words could be used in a slang context to mean fornication--it's a funny speech by the way; see the opening of Justice Brennan's concurring opinion). In Fraser
, the US Supreme Court, after citing Tinker
, recognized that a broad reading of Tinker
was not warranted because of the fact that schools are a small fishbowl where school administrators are "in loco parentis
" which means they gotta take care of the kids' feelings and safety. But note the tension of how the Court states this duty in Fraser
"These fundamental values of 'habits and manners of civility' essential to a democratic society must, of course, include tolerance of divergent political and religious views, even when the views expressed may be unpopular. But these "fundamental values" must also take into account consideration of the sensibilities of others, and, in the case of a school, the sensibilities of fellow students. The undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences."
While the US Supreme Court, on many occasions, most notably in Terminello v. City of Chicago
, 337 US 1
(1949), said that the First Amendment means that the "unpopular" speaker cannot be silenced by the violent reaction of those taking the "popular" opinion, there is again a tension inside schools because schools have a higher duty than the society at large to prevent
violence against students.
The majority opinion in Harper
focuses on the gay students whose right to be free from violence and verbal abuse is what was being promoted by the school. As the majority opinion in Harper
states and as Kosinski unfairly belittles in my view, the Poway schools had just been found liable by a jury in 2005 for failing to protect gay students from harassment. Thus, the school district's actions against Harper and his t-shirt seems more defensible than they might otherwise be. Schools have to make prctical deicsions on existing facts and can't be easily subject to second-guessing.
Kosinski's disenting opinion, however, better understands the tension between a student's right to express a traditional Western religious viewpoint against the now more popular view exaulting tolerance, even of those who are practicing homosexuals. Still, Kosinski doesn't quite face that tension between society's goals of civility and tolerance on the one hand, and the right to verbally dissent from being tolerant. Kosinski would rather punt to the US Supreme Court, despite recognizing the way out of his conundrum. Kosinski himself recognized the primacy of teaching tolerance in a school when he wrote:
"Tolerance is a civic virtue (footnote omitted) but not one practiced by all members of our society toward all others. This may be unfortunate, but it is a reality we must accept in a pluralistic society
(footnote omitted)." (Italics added)
With my quote from Fraser
above, Kosinski is far closer to the majority's ruling than he might like. In footnote 8 to Kosinski's dissent, which is the second of the footnotes from the single paragraph in the main body of Kosinski's dissent, Kosinski tries to rescue Harper and himself:
"Indeed, tolerance may not always be a virtue. Tolerating wicked conduct, bigotry or malicious gossip, for example, may not be in the least commendable. Then there is the question of whether we should tolerate intolerance, a question as imponderable as a Möbius strip. Whether tolerance is a good or a bad thing may turn on what we think about the thing being tolerated."
Where Kosinski's own flourishes fail is that California, as a matter of public policy and law, has already
decided that discrimination against people based upon sexual orientation is wrong
. In fact, homosexuals have essentially every right that non-homosexuals have except a legal right to legally
call their civil unions with each other a "marriage."
Kosinski's point that the student Harper is the new "minority" whose rights should be respected is theoretically laudable, but we have to remember what it is Harper is expressing. He is expresing a negative viewpoint about the practices of other students, which practices the state of California has held should be protected as much as those who are heterosexal in their sexual practices. (Nobody said this, but are we supposed to be only talking about the schools promoting the idea
of homosexual and heterosexual practices since people in California are not allowed to actually
engage in sexual activity until they are 18? Ah, the interaction between sociology and legal jursiprudence is a fascinating one, isn't it?)
Anway, is it possible that Harper should still be free to wear the t-shirts (there are two) in this set of facts? Not enough to win his pre-trial motion that the school was wrong, but enough to say let Harper have his day in court for a jury trial. Let's not forget the words on the t-shirts (there were two), lest we think he said something like the Rev. Fred Phelps who likes to make signs that say "God Hates Fags!"
. However, Harper's t-shirts read as follows:
“BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” (front of t-shirt)
“HOMOSEXUALITY IS SHAMEFUL: Romans 1:27” (back of t-shirt)
On the day before his detention, which was the day of school event, his t-shirt was slightly different:
"I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED" (front of t-shirt)
“HOMOSEXUALITY IS SHAMEFUL: Romans 1:27” (back of t-shirt)
Analyzing the words used on the two t-shirts, front and back, and considering Harper wore the shirt on the day of the pro-gay event and the day after, I am of the view that Harper's minority right to be intolerant was reasonably expressed in a manner that was relatively civil. He did not single out any homosexual to be harmed. He used the word "shame" and expressed the viewpoint, hardly controversial, that God (read: the Bible) condemns homosexuality (We need some good faith in viewing Harper's t-shirt and give him the benefit of the doubt that he speaks of the Bible as being the "word" of God). Still, considering the school district's affirmative duties under the law to prevent students from being "harassed," Harper pushed the envelope on the second day, which was the day after the event. The school district would have, in my view, a harder time justifying itself if on the day of the event, they prohibited Harper from attending classes with the t-shirt. But, the second day, well, that's why Harper's case was close, but not close enough to automatically rule against the district's right to defend itself at a jury trial.
* My friend, Besty, a schoolteacher, eloquently reached a similar conclusion in far less words in her comment to my previous post. However, as may be more clearly stated in my longer analysis, Betsy, in my hopefully humble view, is too quick to want to limit the right of people to expess statements (not actions) of intolerance in our public schools. She is also making a too sweeping statement against the right of students to express a religious-based intolerance toward homosexual acts
, which is what both t-shirts condemned. The t-shirts did not condemn homosexual people, as people, but expressed a religious-based belief against homosexual acts. That is probably too parsing if one is homosexual and has experienced hateful statements and physical attacks, but it is not as overly technical because of the fairly unambiguous view in all three major Western religions against homosexual practices. At this time, our society is not too far removed from condemnation of homosexual acts to render the religiously expressed viewpoint so far out of bounds as to be completely prohibited in a school setting--where a primary societal duty of a school is to promote civility and tolerance.
Phew! Off to work today!