Wear your hate on your sleeve

How would you feel if someone at your high school wore a T-shirt on National Day of Silence that read "I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED," on the front and "HOMOSEXUALITY IS SHAMEFUL ‘Romans 1:27’" on the back?

Tyler Harper did just that, and his school asked him to leave (they didn't suspend him). Actually the school asked him to leave the next day, when he wore a shirt with the same message on the back, but a "BE ASHAMED, OUR SCHOOL EMBRACED
WHAT GOD HAS CONDEMNED" on the front. Very topical.

Harper sought a preliminary injunction against the school. The district court denied it. Three judges on the Ninth Circuit affirmed (opinion behind the link). Harper asked for a rehearing en banc, but was denied

Dale Carpenter writes about the original Ninth Circuit opinion over on The Volokh Conspiracy. He thinks that the Ninth Circuit applied the case law incorrectly (in other words, based on existing First Amendment law, they should have held that Harper had a right to wear that T-shirt, or at least had a good case for it). However, Carpenter thinks that the case law should change. This would require the Supreme Court to modify or overturn a previous First Amendment case - Tinker v. Des Moines Independent School District.

Tinker set a judicial standard for deciding when a school could and could not regulate students' speech. Basically, if student speech would infringe the rights of others or interfere/disrupt school activities, the school can suppress it. Carpenter thinks that the problem isn't the specific content of these standards, but the level of intrusion they allow judges into schools' actions. He wants there to be more discretion given to public schools to decide what is and is not permissible speech on their campus.

Carpenter argues the eminent reasonableness of preventing a student from wearing a T-shirt saying that homosexuality is "shameful", in a school where there had been a history of harassment of LGBT students:

Of course, a single T-shirt bearing the words “Homosexuality is shameful” isn’t that sort of direct face-to-face harassment and doesn’t, by itself, create a pervasively hostile environment. No single derogatory statement, taken by itself, creates a pervasively hostile environment. The problem is that it's expressed in a context that is already a living hell for gay kids in many public schools, as it probably was in this one, making it difficult for them to concentrate on getting an education.

I am disinclined to agree with Carpenter. I find it hard to imagine an alternative, workable standard that doesn't end up giving way too much leeway to ideologues or complacent bureaucrats in schools to prevent student dissent.

Carpenter does make a qualification that he would protect students' right to express any viewpoint in an appropriate setting:

I would not want to allow schools to banish all ways of expressing certain viewpoints, including the viewpoints that homosexuality is wrong, that blacks are inferior, or that women should remain at home. It should be permissible even to say that homosexuality is "shameful" in the context of, say, a classroom discussion of sexual morality. There should be times and places for expressing political views in schools; but that time is not all day and that place is not in the middle of a classroom on another topic. Schools should be given considerable latitude – certainly more than Tinker seems to give them – to ensure that students focus on the curriculum.

This all sounds reasonable until you consider the fact that schools most effectively suppress student dissent precisely by never providing the appropriate forum to discuss their viewpoints, or by structuring the forum so as to minimise the effectiveness of a dissenting voice. A school that does not want to hear about student dissatisfaction with immigration policy, for example, might ask its teachers to reschedule a history unit on immigration to a time when the issue is not up for debate in Congress. A school that does not want students to discuss queer sexual politics might remove all discussion of sexual morality from its curriculum. In my own experience, there was rarely an "appropriate" classroom time to bring up queerness or political dissatisfaction - many curricula at the pre-college level seem designed precisely to PREVENT substantive disagreement from entering the classroom.

This is not to say that I think that Tyler Harper's T-shirt was just great and a fabulous contribution to any kind of discussion. In fact, it was a rather uninformative, dogmatic and hateful piece of couture ideologique. While it didn't quite rise to the level of invective or fighting words, I certainly don't think it would have been ok for the school to leave Harper alone and take no action in response. In deciding to do something, the school's administrators had the right idea, though perhaps a bad implementation.

However, as cliche as this sounds, the school was free to respond to Harper's speech with more speech. Teachers could speak to their classes about the negative effects of homophobia, and even bring up the fact that not all Christian denominations or congregations believe that homosexual sex acts are sinful. Students who organized the Day of Silence could be invited to speak to classes about the day. Outside speakers could be brought in. All of this could be done without treading on the dangerous ground of state infringement of speech.

In suggesting that Tinker be overturned, Carpenter flirts with a disastrous curbing of First Amendment rights. In these paranoid times, it is bizarre for any person who cares about civil liberties to call for overturning or limiting Tinker, a case that protected the right of students to wear armbands in protest of the Vietnam War.

Student dissent is what we need now more than ever. If it means that once in a while schools and students have to shout down a self-righteous homophobe, well, that's the joyous clamor of a free conversation.