- The Washington Times - Monday, May 1, 2006

Justice Oliver Wendell Holmes explained the folly of public school speech codes that seek to shield students from anguishing ideas or assertions in United States v. Schwimmer (1929):

“[I]f there is any principle of the Constitution that more importantly calls for the attachment than any other it is the principle of free thought — not free thought for those that agree with us but freedom for the thought that we hate.” Yet the U.S. 9th Circuit Court of Appeals sustained a school code that prohibited T-shirts disparaging homosexuality in Harper v. Poway United School District (April 20).

High school should be a dress rehearsal for political participation and debate where disagreeable or vituperative views are regularly encountered. The franchise is constitutionally conferred at 18. The Harper precedent is thus appalling.

Sexual orientation has provoked controversy at Poway High School and sister schools nationally for several years. The student exchanges are the minor leagues of the sparring in Congress, state legislatures, and city councils over same-sex “marriage,” homosexual parenting, legal protections against discrimination, and “don’t ask, don’t tell” in the military. In 2003, a student group called the Gay-Straight Alliance at Poway held a “Day of Silence” protesting denigration of homosexuals. Student opponents responded with T-shirts derogatory of gays and lesbians.

During the April 21, 2004, “Day of Silence” to challenge student endorsement or acceptance of homosexuality, Tyler Chase Harper wore a T-shirt with two handwritten declarations: “I will not accept what God has condemned,” and, “Homosexuality is shameful ‘Romans 1:27.’ ” Nothing untoward ensued. The following day, the T-shirt was again worn, but with the former message altered to read “Be ashamed, our school embraced what God condemned.”

Tyler Harper neither stalked putative homosexuals nor flaunted his T-shirt with the intent of inciting illegal conduct. No classroom fell into acrimony. No altercation erupted. His second-period teacher observed several students talking about the shirt “off-task.” But instead of admonishing the students’ misbehavior, the teacher cited Tyler for a dress code violation. The assistant principal and principal sought to persuade him to remove the T-shirt because inflammatory or mean-spirited. He persisted. He remained in the front office until the end of the school day, and was told he could not wear the T-shirt on campus.

Tyler Harper initiated litigation arguing censorship of speech condemnatory of homosexuality violated the First Amendment’s protection of free speech. The court of appeals denied the claim. It insisted gay and lesbian students are psychologically traumatized by words or symbols that might make them feel inferior. Their educational development is stunted. Thus, schools are endowed with a compelling interest in shielding students from ideas or assertions they despise or find unsettling. Speaking for a 2-1 panel majority, Judge Stephen Reinhardt amplified: “Those who administer our public educational institutions need not tolerate verbal assaults that may destroy the self-esteem of our most vulnerable teenagers and interfere with their educational development.”

But the whole purpose of the First Amendment, as Justice Holmes underscored in Schwimmer, is the opposite. Other than idle social chatter, speech that fails to arouse opposition from someone is probably not worth saying. Freedom of speech protects hated or reviled expression because prevailing orthodoxies may be wrong.

Time has upset many fighting faiths. Under the crabbed conception of the First Amendment embraced in Harper, however, 19th century public school authorities could have banned students from touting William Lloyd Garrison, Elizabeth Cady Stanton, or Charles Darwin because some of their classmates might have been emotionally distraught over speech that denounced slavery, promoted women’s rights, or endorsed the theory of man’s evolution from a lower order of species.

A school’s proper educational mission is to expose students to a cornucopia of ideas and viewpoints to enable independent judgment and sturdy convictions that motivate action. Ninety percent or more of what we believe comes from knowing why alternative claims are unconvincing. If antagonistic theories are not encountered, beliefs become shallow and ritualistic rather than deep and abiding. They will neither be robustly defended nor stir to action.

The Harper precedent makes the pope’s ill-conceived index of forbidden books seem liberal in comparison. All student speech can be suppressed so the self-esteem of all may remain unchallenged. T-shirts characterizing the Irish potato famine as genocide may be banned because students of British background may be psychologically disquieted. Expression condemning the invasion and occupation of Iraq by the United States may be prohibited to protect the sensitivities of students whose parents have died in the fighting. Indeed, T-shirts reading, “Opposition to homosexuality is shameful,” might be enjoined because they are held deflating to opponents’ self-esteem.

Harper is not defensible on the theory that students are a captive audience. They can as easily avert their eyes from obnoxious T-shirts as motorists passing drive-in movie theaters can avert their eyes from nudity or violence. As to the latter, the Supreme Court elaborated in Erzoznik v. City of Jacksonville (1975) that the minor irritant to the viewer is a small price to pay for preserving the First Amendment.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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