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Administrators Say CT Student Can Wear Anti-Gay Shirt To School

anti-gay-t-shirtA high-school student in Connecticut will be allowed to wear a T-shirt bearing an anti-LGBT message, according to the AP.

Officials at Wolcott High School today reversed their original decision to ban student Seth Groody from wearing the shirt, which depicts a rainbow with a slash through it (right). Groody wore the shirt on April 20, 2011—the National Day of Silence honoring victims of anti-gay bullyinh—and was told to remove it by administrators.

The ACLU had threatened litigation before the school changed its mind.

Ironically the legal-rights group just filed suit today on behalf of Florida student Amber Hatcher, who was suspended for participating in the Day of Silence. (Hatcher, 16, wore a T-shirt that said “DOS April 20, 2012: Shhhhh,”)

Do students have as much right to wear anti-gay T-shirts as they do pro-LGBT apparel? Vote in the poll below—then share with the group in the comments section.

 

[poll id="5"]

By:           Dan Avery
On:           Feb 26, 2013
Tagged: , , , , , ,
  • 64 Comments
    • 2eo
      2eo

      Advocating hatred and harm to others in public is not protected by the moralistic ideal of free speech as it is recognised worldwide and it certainly has no place in the constitution of the USA.

      Feb 26, 2013 at 4:52 pm · @ReplyReply to this comment ·
    • Daniel
      Daniel

      @2eo: Where on this shirt does it advocate hatred and harm to others?

      Feb 26, 2013 at 5:00 pm · @ReplyReply to this comment ·
    • 2eo
      2eo

      @Daniel: I know you’re not clever enough to understand this very simple concept, however I shall indulge your inanery.

      It is simple, the shirt is compltely about excluding a group of people from accepted society, about dehumanising them and thusly allowing suffering and inequity to those people completely without guilt or remorse.

      Feb 26, 2013 at 5:05 pm · @ReplyReply to this comment ·
    • Dakotahgeo
      Dakotahgeo

      @2eo: Thank you, 2eo! Extremely succinct and to the point! However, I am tiring of these scare tactics by the ACLU! I want lawsuits, blood money, if you will. The school boards and Administrations are fully aware of the law and should face the consequences of their actions… IMMMEDIATELY! Enough nattering about consequences.

      Feb 26, 2013 at 5:18 pm · @ReplyReply to this comment ·
    • mlbumiller
      mlbumiller

      Well let see if some kid comes to school with a burning cross on their t-shirt and see what happens….

      Feb 26, 2013 at 5:45 pm · @ReplyReply to this comment ·
    • Daniel
      Daniel

      @2eo:
      No, 2eo: that’s what you have decided the shirt means, and you want the government to suppress expression based on nothing more than your interpretation (ie, mind-reading).
      Another way in which we disagree: I do believe you are clever enough to learn the difference, if you’re led to it carefully and slowly.

      Feb 26, 2013 at 5:47 pm · @ReplyReply to this comment ·
    • Red Meat
      Red Meat

      @2eo: Exactly, if a kid can wear an anti-gay shirt then who is anyone to stop one from wearing an anti-black one? The KKK? This is just stupid beyond my comprehension.

      Feb 26, 2013 at 5:50 pm · @ReplyReply to this comment ·
    • Daniel
      Daniel

      So “rainbow in a circle with a slash through it” is an equivalent symbol to the KKK? Have there been organized physical violence and political movements under that symbol? What’s the history of that symbol?
      And still no one has explained how “rainbow in a circle with a slash through it” is advocating hatred or harm.

      You are entitled to think it’s stupid as much as you want; you’re not entitled to take someone else’s First Amendment rights away based on your personal opinion of what is teh stupid.

      Freedom means freedom for everybody, kids – even for the asshats.

      Feb 26, 2013 at 6:34 pm · @ReplyReply to this comment ·
    • viveutvivas
      viveutvivas

      Let me try this again because the word rac*st was causing it to be censored:

      @Daniel, the shirt expresses hostility against a particularly vulnerable minority. There have been enough suicides. It is a form of bullying. Do you think schools should allow rac*st shirts? How about a shirt drawing a red line through the star of David? Should schools allow verbal bullying based on the principle of freedom of speech? How is this different?

      And to think the ACLU was in favor of allowing the shirt. Shameful!

      Feb 26, 2013 at 7:22 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      A rainbow with a slash through it. Back in my High School they would be changing this twit’s name to, “speed-bump” by the time we got through with him. What a latent f%@K. Doesn’t he realize that at that age, the frontal lobes are not yet fully developed? Miracle spray car wash would have a hard time cleaning his flesh out of our grill. Just remembering good ol’ days. Soon, he will be a Republican caught on his knees in some public bathroom or a pedophile priest running his own little Opus Dei-Care. His parents won’t be so proud of their little sprout then.

      Feb 26, 2013 at 7:23 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Daniel: The rainbow with the slash through it has a very clear message: “I find homosexuality distasteful.” To suggest that you require an explanation of it is a clearly bad faith argument. No reasonable person could escape the shirt’s intended message given the context in which it was worn, i.e., Day of Silence.

      Further, it is irrelevant that it does not have the same historical and cultural baggage as say the letters KKK, as neither is a necessary condition for a symbol’s power. The power of symbols is limited only to that with which their creators and observers endow them – in other words, their power is potentially as limitless as the human imagination. What is relevant here is that this symbol sends a very clear, very potent message of prejudice that has no place in an educational environment.

      (I say this as probably the staunchest defender of free speech on this website.)

      Suppose I had a shirt with a cross (or Star of David – or best yet, a cartoon of Mohammed) and a slash through it, as above. I’d bet a cup of coffee and a blowjob that no court in America would vindicate my right to wear it over the school’s duty to ensure a safe learning environment. There is a balance to be struck, and here, it cuts against the shirt.

      Feb 26, 2013 at 7:27 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @1EqualityUSA: Opus Dei-Care. I love it.

      Feb 26, 2013 at 7:29 pm · @ReplyReply to this comment ·
    • marc sfe
      marc sfe

      How about a student wear a t shirt and a crucifix inside that round circle and hash bar? Boy, that’d get the religious wing nuts all in a tizzy!

      Feb 26, 2013 at 7:35 pm · @ReplyReply to this comment ·
    • Dakotahgeo
      Dakotahgeo

      @marc sfe: No kidding! And they invented the mind game of “Tizzy”!

      Feb 26, 2013 at 8:18 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      The First Amendment was designed to protect people speaking out in criticism of government.

      Is a public school an extension of government and thus restricted from curbing students’ free expression, or can it develop policies that regulate speech independently?

      A little of both, I think. We don’t allow students to be disruptive in class; that’s arguably a policy that forwards the school’s mission of educating students. So clearly a school has some power to regulate students’ speech. The question then becomes a matter of defining the limits of a school’s power in this area.

      Schools that try to regulate expressive apparel in this way likely have in mind their duty to educate students in a safe environment that is conducive to learning and are trying to proactively deal with things that can be disruptive distractions. Are they overstepping their authority in doing so? I’m inclined to say they are. They appear to be basically solving a problem before it actually manifests as a problem, and that’s a dangerous road to start down where fundamental rights like speech are concerned. Their “solution” is overly broad and perhaps even arbitrary if there isn’t a clear policy dealing evenly with students on both sides of an issue. This applies whether or not I personally endorse or reject the message on some student’s shirt.

      As for “advocating hate”, that’s a subjective judgment, and dare I say maybe some of us are having a problem seeing past our own biases in the matter?

      Like it or not, hate speech remains protected speech in the USA. We can’t allow subjective judgments to create a double standard favoring what we personally approve while burdening the expression of ideas that we find distasteful, lest we eventually become the targets of that double standard ourselves if our own ideas should become unpopular.

      The best counter for speech you find disagreeable is not restricting another’s rights (less speech), but exercising your own (more speech).

      Feb 26, 2013 at 9:38 pm · @ReplyReply to this comment ·
    • jacknasty
      jacknasty

      haven’t the courts ruled more than once that swearing a swastika to school is not protected under the first amendment? I don’t really see how this is any different. I believe in free speech and he should be able to wear it when he’s not in school but there is precedent for banning things like this already.

      Feb 26, 2013 at 10:01 pm · @ReplyReply to this comment ·
    • lemon-lime
      lemon-lime

      I am seriously confused how people in this thread are comparing a “no” symbol over a rainbow is comparable to Nazi symbols, the KKK or burning cross imagery. The shirt is so idiotic, I’m surprised anyone even figured out what it means. It could as easily mean he hates colors, or perhaps he just has an issue with rainbows because they happen during rainstorms. Maybe he’s just dead-set against happiness in general? Her he doesn’t like Cheer Bear?

      Can’t we save smelling salts for when kids walk in with a truly hateful or bullying message emblazoned on their shirt?

      Feb 26, 2013 at 11:21 pm · @ReplyReply to this comment ·
    • Billysees
      Billysees

      @2eo: 3

      Good explanation…..simple……precise…..

      Feb 27, 2013 at 2:52 am · @ReplyReply to this comment ·
    • Billysees
      Billysees

      I’d be curious to know more about this student, family life, religiosity, …..etc.

      Wonder if he ever heard the expression, “follow after the things that make for peace”……NT

      Feb 27, 2013 at 3:21 am · @ReplyReply to this comment ·
    • 2eo
      2eo

      @Dakotahgeo: @Billysees: @Red Meat:

      Thank you. There’s a logical reason, based in the facts of the matter, steeped in the reality of the situation. I urge the more block headed to have a look at comments 1 and 3, and keep reading them over and over until you understand why this is what it is.

      None of you have put forward anything even remotely good enough to refute anything I have said, it’s sad that I at 27 and from the UK know more about how the world works and how the US constitution is supported than a large amount of Americans on this site, and elsewhere.

      Feb 27, 2013 at 6:00 am · @ReplyReply to this comment ·
    • 2eo
      2eo

      Also my name quoting was ballsed up, I meant there to be a new paragraph after “Thank You”, that was a thumbs up and not a sarcastic dressing down. That is intended for Daniel and Lemon.

      Feb 27, 2013 at 6:02 am · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      Ok, being an educator I can’t believe the shirt was allowed and am also surprised at the ACLU.

      @Daniel: , @lemon-lime: The problem with the shirt is the circle with the slash. This clearly indicates a “no” or “prohibition” sentiment. It is therefore discriminatory at best by “prohibition” of the LGBT community and violent action through the “no” as in “no more.” How would you have “no more” or “no” LGBT community? Through death.

      Schools, being an extension of government, should not allow the shirt and are well within their rights to prevent the student from wearing it either through dress code policy or through the fact of it being of a disruptive nature.

      Now, if the boy was to wear a shirt that had said, Leviticus 18:22, or some other dumb mistranslated religious verse on it, thereby indicating he believed homosexuality to be a sin, then that type of shirt he SHOULD be allowed to wear because he is only expressing reading a biblical verse.

      @Elloreigh: your answer here is best that our voices need to be louder than those that would spew the hate but I did want to address how the shirt was an actionary shirt either through prohibition or violence because of the symbology used.

      Feb 27, 2013 at 7:22 am · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      I cant believe I’m actually on the side of @2eo: The world seriously must be coming to an end.

      Feb 27, 2013 at 7:25 am · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Elloreigh: I generally agree, but here, schools have wide (but not limitless) discretion to censor student speech. Here, it’s clear what the symbol means: animus toward homosexuals. Anyone who says it’s ambiguous is lying to themselves. The case law cuts against the shirt:

      1. Tinker v. Des Moines: students have the right to free speech at school unless their speech would cause a “material and substantial disruption” to class or school activities.

      2. Hazelwood v. Kuhlmeier: schools can limit student speech is allowed “so long as their actions are reasonably related to legitimate pedagogical concerns.”

      3. Morse v. Frederick: censorship of student speech is permissible to the extent that it furthers an important educational goal of the school (in that case, anti-drug education).

      @2eo: Ouch! Me and me fellow Yanks aren’t all constitutionally illiterate…lol

      Feb 27, 2013 at 7:41 am · @ReplyReply to this comment ·
    • Ganymede
      Ganymede

      How exactly is clothing protected under the first amendment? I can’t speak for the US, having never experienced the education system there myself, but the schools in the UK have pretty much carte blanche to deem any kind of apparel inappropriate for school wear. If jeans, halter tops and football shirts can be banned, I see no reason why a t-shirt bearing a homophobic logo couldn’t face the same treatment.

      Feb 27, 2013 at 8:37 am · @ReplyReply to this comment ·
    • 2eo
      2eo

      @Ganymede: It isn’t protected, and only the really stupid people think it is.

      Feb 27, 2013 at 8:39 am · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @2eo: @Ganymede: It IS protected, but there are limits to the protection. (slander, defamation, inciting violence or riots, etc.) I think what @2eo: meant to say was, IN THIS CASE, it is not protected.

      Feb 27, 2013 at 8:46 am · @ReplyReply to this comment ·
    • DustinStarrak
      DustinStarrak

      It’s opinion. It’s a t-shirt. and it’s a TEENAGER. How many of us were in a clique as a teenager? Any goth kids in the house? How many of us bitched about hating our parents?

      How many of us still hold to those beliefs?

      Teenagers do need space to find their own way.

      Feb 27, 2013 at 9:55 am · @ReplyReply to this comment ·
    • viveutvivas
      viveutvivas

      @DustinStarrak, which is why this kid needs a firm hand. Teenagers can still harm other kids with bullying (which this is) no matter how unseriously you take their opinions.

      Feb 27, 2013 at 10:03 am · @ReplyReply to this comment ·
    • 2eo
      2eo

      @DustinStarrak: Good thing all those teen suicides caused by teenage bullying isn’t resulting in teenage deaths.

      Oh, hang on.

      Feb 27, 2013 at 10:25 am · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      That homophobic teacher from Indiana, Diana Medley would give this boy an “A” for listening to her lectures.

      Feb 27, 2013 at 10:31 am · @ReplyReply to this comment ·
    • DustinStarrak
      DustinStarrak

      You don’t eradicate homophobia by telling someone what their doing is bad, least of all a teenager. You eradicate homophobia by SHOWING THEM why it’s wrong, and then letting them make their own decision.

      Feb 27, 2013 at 2:48 pm · @ReplyReply to this comment ·
    • DustinStarrak
      DustinStarrak

      In other words, banning the t-shirt is step one of a multi-step process. And without all the other steps, then step one is pretty pointless and could be viewed as bullying itself.

      But that’s just my opinion. I also believe in Jesus Christ and I still live with my mothers so… grain of sand.

      Feb 27, 2013 at 2:50 pm · @ReplyReply to this comment ·
    • jar
      jar

      @2eo: No country recognizes the same innate right to free speech as America. It is one of the distinguishing components of our society. And I say we are heads and shoulders above all others in this regard (which is not to say that I agree with the increased restrictions placed on free speech in America).

      In this case, I think students should not be permitted to wear any political statements during school, otherwise all expressions should be respected, however venal they may be.

      Feb 27, 2013 at 3:02 pm · @ReplyReply to this comment ·
    • jar
      jar

      @2eo: Learn about your government. The first amendment prohibits exactly what you advocate. The government cannot make content-based decisions on which speech it will permit. If one is allowed to wear a pro-gay T-shirt, one is also permitted to wear an anti-gay t-shirt, no matter how heinous the message may be. The value of our first amendment is that it prohibits people like you or, more importantly, yahoos from choosing which speech should be protected.

      Feb 27, 2013 at 3:07 pm · @ReplyReply to this comment ·
    • jar
      jar

      @2eo: Having not lived with the notion of free speech nor of citizenry (still being a subject of the welfare queen), I venture that you do not understand the American system at all. You merely try to impose your more restrictive notion of free speech onto the US constitution. I will give you a primer so that you don’t spout off ignorantly in the future.

      The first amendment prohibits the government from restricting free expression or free association (that is, you have a right to congregate with whomever you desire, regardless of the heinousness of your purpose). The govt is prohibiting from choosing which speech it will allow on the basis of the content of the speech. That is the fundament of our constitutional right. The govt may put reasonable time, place, and manner restrictions (in my view, these have been extended beyond reason- see the NYC republican convention, the Occupy movement). Public schools are governmental entities for first amendment purposes. Schools may restrict the expression of speech if those restrictions promote their educational objectives. But the schools cannot allow some expressions and prohibit others. Thus, a school cannot allow so-called “positive” messages, while prohibiting “negative” messages. The reason for this should be evident- the first amendment prohibits the government from endorsing expressions with which it approves, while censoring those it dislikes. If a school allowed pro-Israeli expressions, it cannot restrict anti-Israeli expressions. Same with the swastika, burning cross, anti-Xian expressions, etc. It’s all or nothing in the US.

      You do not have these same constitutional protections in the UK, so I can understand your reaction. However, I would inform you that the US system allows for the maximum in free expression. As another posting here points out, the notion that Boris could ban anti-gay signs from Transport buses, while permitting pro-gay sings is anathema to the US notion of free speech.

      Feb 27, 2013 at 3:25 pm · @ReplyReply to this comment ·
    • jar
      jar

      @Chad Hunt: I assume you do not reach civics because a political statement on a shirt does not satisfy the “action” requirement under the first amendment. For speech to constitute action it must create an imminent harm to someone or something. Expression of a heinous view does not meet this requirement. Do you actually think this student intended immediate harm to other students by wearing this shirt?

      Feb 27, 2013 at 3:32 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @jar: I hear the shrill, but lettered words of a lawyer (or someone who’s done his homework). I’m sorry to tell you, but free speech is not an “all or nothing” proposition in the United States. I agree that content discrimination is presumptively unconstitutional and that the US should be applauded for its approach to free expression in general, but your analysis here is unpersuasive, as schools have tremendous discretion over student speech. I think you’re thinking of free speech in public fora, as you’re spot on in that case.

      I mentioned a few cases in a previous comment, and I suggest Wiki-ing the last two (Hazelwood and Morse). While a student’s right to free speech does not end at the school gate, they do not have the same free speech rights that non-students have off of school grounds given the unique position schools are in as both educators and temporary parents. As such, First Amendment jurisprudence reflects these realities and gives schools a wide berth to negotiate the tension between free speech and safely educating young and impressionable minds.

      Your statement that a school cannot allow an anti-gay rights shirt while allowing a pro-gay rights shirt stems from US law’s justifiable hostility toward content discrimination, but it is not entirely accurate. A public school would almost certainly allow me to wear a Star of David on my shirt, but likely a shirt featuring a flaming swastika and the word “Hitler” with a heart around it. These represent opposing viewpoints with respect to equal rights for Jews, yet I don’t think any court in the United States would enjoin a school to let a student wear the Nazi shirt. Why? Because schools may limit free speech to the extent that the limitation furthers a legitimate pedagogical purpose OR when that speech poses a material risk of disruption OR if the limitation furthers an important educational goal.

      As you can see, free speech in schools is absolutely not an all or nothing issue. The case law on this gives tremendous, but not limitless, deference to schools over the speech and expression of their students.

      Feb 27, 2013 at 3:55 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @jar: Also, I forgot to mention Bethel v. Fraser – speech that is offensive to prevailing community standards may be censored as well. I don’t see any reason why the school doesn’t stand its ground, as the case law clearly cuts in its favor. Oh wait, because lawyers are expensive and the ACLU is fighting a battle it shouldn’t be, especially considering that the fed (and many states) continue to violate our civil liberties.

      http://en.wikipedia.org/wiki/School_speech_(First_Amendment)

      Feb 27, 2013 at 4:03 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @jar: Absolutely, the student wearing the shirt did mean to impose imminent harm and i also propose he did inflict it. Not all harm is physical and it can be argued that mental harm or abuse is more drastic and carries long term effects. I do teach civics and in my opinion it does meet the requirement.

      Feb 27, 2013 at 4:10 pm · @ReplyReply to this comment ·
    • jar
      jar

      @jwrappaport: I am an attorney who has studied the first amendment. I appreciate your diligence, but I would warn you against reading something on wikipedia and feeling informed enough to draw conclusions. This is the danger of wikipedia (although I do support wiki). I mean no offense here; I am old enough to have been educated in a pre-internet world in which one had to research issues rather than google them.

      I used the term all or nothing because I was offering only primer. There are some exceptions, but they are too refined and detailed to have included in my post. However, it is extremely rare for the court to permit a content-based restriction on speech, especially political speech (see Citizens United- worngly decided IMO). The school cases you cite are inapposite to the proposition that a school cannot favor some forms of political expression over others. The cases involve the school’s power to restrict a school newspaper (ie, it does not enjoy freedom of the press), sanction the unfurling of a banner advocating drug use, and to limit what is said at a school sponsored speech. These are one-off situations in whcih the schools took restrictive action.

      The CT is different in that the school permitted political expression regarding the day of silence and then sanctioned one student because the school did not like his view. The school may ban all commentary on the day of silence (or all political or commercial (no branded clothing) speech), but once it permits political speech, it cannot endorse one message over another. That is strictly prohibited. Similarly, a school cannot permit a Xian student group, but ban a Muslim student group. However, the school could ban all religion-based groups.

      As I pointed out above, there is an exception for speech that prohibits imminent harm to another. Since there is a presumption of free speech, no court would hold that the offending shirt rises to that level. The school district clearly agreed this is the case it reversed the school’s position. The cases you cited merely hold that a school does have the right to limit free expression in order to maintain order and to avoid disruption with its educational goals, including prohibiting speech advocating illegal drug use. Furthermore, Tinker, which has been significantly watered down by subsequent cases, holds for the general proposition that students do have speech rights in the school environment. Under a strict Tinker analysis, the school would have violated this student’s right to speech regarding a major social or political issue.

      I appreciate the discussion. If you are interested, the supreme court’s website includes the decisions and oral arguments for their cases. The older cases are unlikely to be posted, but the more recent ones certainly are.

      Feb 27, 2013 at 4:44 pm · @ReplyReply to this comment ·
    • jar
      jar

      @Chad Hunt: Prove it. Your contentions are meaningless without more.

      You cannot simply state that an offensive statement intends imminent harm. That would subvert entirely the fundamental principle underlying the first amendment. Furthermore, you clearly do not understand the meaning of the words imminent and harm. Being offended satisfies neither definition. I should not have to state to you, if you are indeed a teacher of civics, that there is a presumption of free speech, baring some compelling reason to limit it. The most oft cited basis for imminence is yelling fire in a crowded theatre. Or advocating that people pick up weapons NOW and go kill someone. Now is capitalized because that may satisfy the imminence requirement. The mere statement that X should be killed is still protected speech under our constitution. For example, are you not aware of the Westboro Baptist Church?

      In a recent NY case, a motorist was charged for giving a police officer the middle finger. Fortunately, the appeals court ruled that this was protected speech. We are seeing a continued limitation on our right to free speech and it is uninformed attitudes like yours that facilitate this march towards the kind of tyranny the founders opposed. As an educator of civics, I would have hoped you would be better informed of the bill of rights.

      Feb 27, 2013 at 4:59 pm · @ReplyReply to this comment ·
    • jar
      jar

      @Chad Hunt: Perhaps I should clarify my previous post. You are correct that schools have the right to limit free expression of students, as the cases you cite indicate. However, none of those cases hold that a school may permit expression on one side of an issue, but prohibit expression in opposition. Even the current conservative supreme court would not, I believe, approve that position.

      Feb 27, 2013 at 5:08 pm · @ReplyReply to this comment ·
    • jar
      jar

      Oops- my last comment was meant for jwrappaport.

      Feb 27, 2013 at 5:09 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @jar: No worries. I think I understood your post. Also, I’m a 2L here – not a lawyer yet, but no Wiki worm either. Well, at least not in the pejorative sense.

      The general proposition I stand for is not that schools are permitted wholesale to engage in viewpoint discrimination, but rather that they have wide discretion in limiting student speech in general so long as it fits into one of the exceptions I mentioned. A shirt that is worn in opposition to a day that calls for the protest of the bullying of LGBT students (which itself is not an explicit call for gay rights at all) is justifiably an act that stands to frustrate a legitimate pedagogical goal of public school: to foster inclusiveness and curb bullying and violence. Suppose I wore a shirt with MLK’s face crossed out during day after MLK day: does the school’s censorship of my shirt amount to viewpoint discrimination? Not at all – it amounts to a reasonable restriction on speech that easily falls under not just the Bethel exception, but arguably the Morse and Hazelwood exceptions as well.

      To say that the cases I mentioned are inapposite on the ground that they involve “one-offs,” which is to say single expressive acts that do not stand in opposition to other school-sanctioned expressive acts, is sophistry, IMO. In allowing the school to censor pro-drug speech, the Court in Morse necessarily privileged anti-drug speech. This is viewpoint discrimination by definition, yet it was permitted. (Unless that school would also make me take off my DARE shirt, which I sincerely doubt.) Most, if not all, public school dress codes prohibit clothing that makes reference to illegal drugs, alcohol, or tobacco, yet would almost certainly allow me to wear a MADD or DEA shirt. This is also viewpoint discrimination by definition, yet it is permitted all over the country for the same reason the school in Morse was allowed to censor the banner.

      The essence of the Bethel decision is that schools are charged not just with the intellectual education of their students, but also their moral education. As such, schools have discretion to censor student speech that violates prevailing community standards. That seems to me to be the crux of the case here: it is unequivocally socially unacceptable to bully LGBT students; thus, anyone advocating the opposite violates those standards. Again, this is not carte blanche for a school to censor speech simply because it disagrees, but it can form part of the basis of a legitimate limitation on student speech, the rest of which could arguably be buttressed by the school’s heavy interest in curbing bullying and creating an inclusive, peaceful learning environment.

      Feb 27, 2013 at 5:49 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @jar: I am a social studies teacher so when I say I teach civics it is a basic knowledge etc. Under the social studies umbrella what I teach is american History, world history, civics, government, geography, & economics.

      I still pose with our new laws etc we are redefining what could be considered immediate imminent harm. For instance the teacher in Indiana who stated that members of the LGBT community serve no purpose in life. Now, were a student of hers to commit suicide after her making this statement did she not cause the clear and imminent danger to that student?

      Look to the new cyber bullying cases in which a teen committed suicide.

      Hate speech in and of itself causes imminent mental danger to students. Hate speech more in more is coming under fire as not being protected under the first amendment.

      Not that it has any bearing in this case but look to the new ruling in Canada where the supreme court ruled that hate speech did pose danger to the public and society.

      Feb 27, 2013 at 6:00 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Chad Hunt: I applaud your position and agree with you with respect to your more general conclusion that the shirt should be banned, your argument here is weak. Stick with school discretion, not imminent danger.

      With respect to US free speech law, imminent danger is a very, very tall order to prove, and this shirt does not meet that threshold by any stretch of the imagination. Imminent danger means someone wearing a shirt with US nuclear codes on it, for example. Or the sandwich board John McClane wore in Harlem in the beginning of Die Hard with a Vengeance. Hate speech causes longterm harm and is more insidious, whereas speech censored on the basis of its potential to cause likely and imminent lawless action is speech that will literally cause immediate violence. The idea is that there is a heavy presumption against censorship, and I’m forced to agree with it.

      Feb 27, 2013 at 6:06 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      Whoops. I forgot a “but” after the comma in my first sentence. My train missed the conjunction junction.

      Feb 27, 2013 at 6:09 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @jwrappaport: totally with you about censorship, however, I do draw the line on certain types of speech. This being one of them. Again, if the boy would have wore a Leviticus 18:22 shirt for instance or just a shirt that had the rainbow with some type of saying under it like … is morally wrong, then sure let him wear it. My problem is still the “no”, “anti” or “prohibition” element that the circle with the slash represents.

      How do we prove a hate crime in this country? Is it not through speech used by the perpetrators?

      Again the circle with the slash at best is discriminatory in the manner that it represents “anti” or “prohibition” and at the worst violent with a “no” therefore “no more” sentiment.

      I’m going to argue one more point as a possibility. 2 other boys see the boy with the shirt they all start talking about how they hate fags, the bible teaches fags deserve death etc, they decide to kill a gay kid. What was the initial cause of the violence? Was it not the shirt? Now, these 3 boys go court and a picture showing the boy in the t-shirt is shown to the jury. Would this not be proof that the crime was a hate crime? Was not the shirt what incited the other 2 boys to speak with the first boy and thereby what caused the immediate danger to the kid they killed?

      I’m just saying this type of case could be argued.

      Feb 27, 2013 at 6:49 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      I know spouting possibilities is just hypothetical and has no bearing on the case as it stands. Again, really all I see here is it would be well within the schools right to ban the shirt under our current system of law.

      Feb 27, 2013 at 6:53 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Chad Hunt: Your hypothetical is unpersuasive, as the shirt would not have been the immediate cause of the killing, but rather a vague, underlying factor that may have motivated it in part (likely along with years of religious indoctrination and other abuse). Suppose it did cause the killing directly. To censor the shirt on the basis that it would cause likely and imminent lawless action, you would also have to prove that the shirt was worn with the intention to cause that very same likely and imminent lawless action. This would be a very strange set of facts that has essentially no basis in reality.

      Any case can be argued, but a case for the shirt being an imminent threat to the physical safety of students is meritless. When you say that “you draw the line on certain types of speech,” what does that mean? It’s funny: I think we agree on the essence of the case (which is to say that the school should ban the shirt), but I wholeheartedly disagree with your justification.

      Feb 27, 2013 at 7:03 pm · @ReplyReply to this comment ·
    • Elloreigh
      Elloreigh

      What I see here is a reliance on the idea that the potential to create a hostile environment justifies censoring a student’s freedom of expression. Meanwhile, it is that act of actual censorship which creates an environment hostile to those who hold opposing, unpopular views.

      What I also see is an attempt here to assume intent on the part of the student wearing the shirt. Some of those assumptions may indeed be correct, HOWEVER: It is not intent that determines what speech is or isn’t allowed. It is whether the speech poses an imminent threat or conflicts with the school’s mission to educate students in a safe environment. I see no such thing here. Reading it within the shirt’s imagery is a case of making inferences based more than a little on circumstances beyond what actually appears on the shirt.

      Unless someone can show that the shirt did cause a disruption, it amounts to censorship for content alone.

      I strongly dislike the politicizing of education, but what’s sauce for the goose is sauce for the gander.

      Feb 27, 2013 at 7:15 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      Types of speech “in schools” where I would draw the line is exactly the type I think you are arguing. If the speech being used represents an element contrary and limiting to the fundamental principles and pedagogy of the school.

      Feb 27, 2013 at 7:15 pm · @ReplyReply to this comment ·
    • 1EqualityUSA
      1EqualityUSA

      I love the gay community.

      Feb 27, 2013 at 7:17 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @jwrappaport: see #53

      Feb 27, 2013 at 7:19 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @Chad Hunt: Yeppers. This unemployed 2L’s reading of the case law leads me to think that a court would be justified in upholding the ban partly on those grounds.

      Feb 27, 2013 at 7:22 pm · @ReplyReply to this comment ·
    • Chad Hunt
      Chad Hunt

      @jwrappaport: So we do agree mostly, I just took it a couple steps further with hypotheticals. LOL That stems mostly from being a teacher, we try to get students to debate and make cases and distinctions for themselves. :-)

      Feb 27, 2013 at 7:26 pm · @ReplyReply to this comment ·
    • jar
      jar

      @jwrappaport: You make a very compelling argument. You will make a good lawyer. I agree I was being glib by stating those cases were on-off’s. The point I did not explicate was that, as you know, first amendment cases are fact specific. Of course, we can extrapolate governing principles from those cases, as you ably argued.
      I must confess that I took a similar view v. my con law professor, who was then on the board of the ACLU, many years ago regarding campus speech codes (I was pro). I entered this fray because I thought the majority position was ill-informed and emotional. As Chad Hunt argued above, there is a harm felt by a member of a minority group from hate speech that affects their sense of safety. I argued hate speech should not be countenanced for this reason. At the time of the discussion, there was a report in the NYC papers about a black father who took his six or seven year old daughter to a playground. When she was on the swings, a group of young white men yelled n- and chased them. It was a horrific story. I argued that for that little girl (at least) later in life, someone yelling n- across a college campus would have a detrimental effect on her sense of well-being. The balance of interests weighed in favor of speech codes. Additionally, we do not allow verbal sexual harassment in the workplace for similar reasons. So, I certainly respect your argument.

      Nonetheless, I still believe that under current jurisprudence a school cannot restrict speech on one side of an issue while promoting the other side. The school could make a persuasive argument, I agree. But I take the position now that opposing, and particularly, offensive, views must be allowed equal exposure in a government-controlled setting. For me, the climate in which we live is too dangerous, from a free expression perspective, to encourage any restrictions on the expression on unpopular ideas.

      Good luck on your studies. It gets increasingly easier.

      Feb 27, 2013 at 8:02 pm · @ReplyReply to this comment ·
    • jar
      jar

      One final point- as gay and lesbian people, we have experienced censorship (though not always governmental) of our very existence, let alone our thoughts and ideas. It is because our unpopular views were allowed free voice that we have accomplished so much. I think it would be a true detriment to our society to try to curtail unpopular views because some of those views will lead to a more enlightened future. We have to take the bad with the good.

      Feb 27, 2013 at 8:07 pm · @ReplyReply to this comment ·
    • jwrappaport
      jwrappaport

      @jar: Your last statement is an apt one – though here, as I argue, the schoolyard is not the street corner or public park, and so I’m somewhat less hesitant to restrict speech even if there is a presumption against it. Having said that and with respect to the public forum for ordinary citizens, you are exactly right. It is astonishing how little traction that view has around the world, even in Western democracies. I far prefer our system, and I’m happy to put up with the WBC if it means I am free to blaspheme openly. It is precisely because we are civilized that we decline to use the blunt, clumsy weapon of censorship. The rest of the world seems to have a problem with this, and I’ve never heard a persuasive case for hate-speech laws that would simultaneously respect my right to blaspheme and excoriate organized religion.

      Have you seen Hitchens’s talk on free speech? Perhaps the greatest apology for the First Amendment I’ve ever heard. Although Robert Bolt does a damned fine job on the rule of law in general in “A Man For All Seasons,” which Hitchens invokes.

      Feb 28, 2013 at 3:16 am · @ReplyReply to this comment ·
    • Merv
      Merv

      @Chad Hunt: I’m a little concerned that you give Leviticus as an example of acceptable speech. In my opinion it’s actually far worse than the rainbow with an slash across it, because Leviticus calls explicitly for the execution of gay people (not in the exact verse you cited, but a little later on). There was a very similar incident in the news recently where a Christian student in opposition to the Day of Silence wore a T-shirt that said “they shall surely be put to death, their blood shall be upon them.” He was made to turn the shirt inside out or be sent home. In my opinion, quoting with approval anything out of that book regarding gay people, even if it’s not that exact verse, is an implicit death threat and should not be allowed. Freedom of religion does not include freedom to make death threats.

      Feb 28, 2013 at 5:37 am · @ReplyReply to this comment ·
    • Billysees
      Billysees

      @1EqualityUSA: 54

      Lol…..lol….lol….

      Feb 28, 2013 at 6:54 am · @ReplyReply to this comment ·
    • Jonathonz
      Jonathonz

      If a kid wants to show up to school in a shirt that says “Look at me, I’m a bigoted a**hole” they should be able to do it. Now if they want to verbally or physically abuse their classmates that’s a different story.

      Feb 28, 2013 at 4:56 pm · @ReplyReply to this comment ·
    • Billysees
      Billysees

      @Jonathonz: 63

      Your first sentence is not good enough.

      I’m wary about getting so gung-ho about “freedom of speech” or “freedom of expression” that we conclude that “anything goes”.

      Isn’t it a good idea to encourage sound minded, mature and respectful speech and expression in public ?

      And what about in private ?

      I don’t see anything wrong with political correctness —

      Politically Correct, adj —
      — Demonstrating progressive ideals, esp by avoiding vocabulary that is considered offensive, discriminatory, or judgmental.

      Mar 1, 2013 at 2:47 am · @ReplyReply to this comment ·

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