2006-04-21 - 8:36 a.m.

"Fundamentalist Bullshit Hate Speech is Shameful"

The 9th Circuit Court of Appeals ruled 2-1 yesterday that a school in San Diego County was within its rights to ban a student from wearing a t-shirt that said "Be ashamed, our school embraced what God has condemned" and "Homosexuality is shameful." See full LA Times article here.

An excerpt:

In numerous instances, the U.S. Supreme Court has held that Americans must tolerate offensive speech, including permitting marches by Nazis through a community with a substantial Jewish population. However, the majority ruled in this instance that some limitations were permissible in a public secondary school setting.

The court concluded that San Diego-area high school student Tyler Harper's donning of the T-shirt "collides with the rights of other students in the most fundamental way," wrote 9th Circuit Judge Stephen Reinhardt.

"Public school students who may be injured by verbal assaults on the basis of a core identifying characteristic such as race, religion, or sexual orientation have a right to be free from such attacks while on school campuses," Reinhardt said. "Being secure involves not only the freedom from physical assaults but from psychological attacks that cause young people to question their self-worth and their rightful place in society."

Judge Alex Kozinski issued a strong dissent. "While I find this a difficult and troubling case," the Poway Unified School District has "offered no lawful justification for banning Harper's T-shirt."

What's most intriguing are Kozinski's later comments (though trying to figure out the logic of a fairly conservative Reagan appointee is more or less an exercise in futility):

Even in the midst of his blistering dissent, Kozinski acknowledged that he had sympathy for the position of Poway officials "that students in school are a captive audience and should not be forced to endure speech that they find offensive and demeaning."

"There is surely something to the notion that a Jewish student might not be able to devote his full attention to school activities if the fellow in the seat next to him is wearing a T-shirt with the message 'Hitler Had the Right Idea' in front and 'Let's Finish the Job!' on the back," Kozinski said.

"This T-shirt may well interfere with the educational experience even if the two students never come to blows or even have words about it."

Nonetheless, Kozinski chided the majority for concluding that it was permissible to suppress points of view while extolling the virtues of tolerance. "One man's civic responsibility," he wrote, "is another man's thought control."

So, should we assume that Kozinski feels that a student in a public school should be allowed to wear a t-shirt proclaiming "Hitler Had the Right Idea," or maybe even, "Be a Hero: Lynch a Nigger"? Seeing issues like this as "supressing points of view" seems patently ridiculous when applied to a school or work environment. And, so, what the hell alternate solution is he proposing if he agrees that students "should not be forced to endure speech that they find offensive and demeaning"?

As a staffmember of a public institution, I'm more than versed in harrassment policies that deal with the issue of "hostile work environment." While some of the regulations seem to be a bit much and sometimes seem to be pushing the boundaries of what might be Constitutionally permissible, I certainly see the value of them, in terms of guaranteeing a right to a workplace free from undue hostility. Often, the litmus test is said to be "what a reasonable person would consider unacceptable." Now, a reasonable straight, white, wealthy, man may have a different standard than a reasonable poor Chicana lesbian, but ostensibly those variations would be evened out somewhat if a situation were brought before a jury.

It seems that rules acceptable for a workplace should certainly be transferable to a public school setting. It seems courts have upheld dress codes of various types, some of which have, I believe, taken the draconian measure of prohibiting clothing with any words emblazoned on them at all. Kozinski seems to be saying that, in the absence of a code banning all verbal messages on clothing, any verbal message is protected speech.

It would be interesting to press Kozinski further to see how far he would take his argument. It would also be interesting to look at the outcome of a similar case if the situation involved speech targeting racial or religious minorities, and not gays and lesbians, hatred and condemnation of whom is increasingly � and disturbingly � being viewed as "protected religious freedom" by those who publicly express that hatred and condemnation.

They expect this may go to the Supremes. Let's see what Roberts & Co. make of it.