Friday, April 21, 2006

The Hate Speech Ruling Crits Were Waiting For

The 9th Circuit has just issued a 2-1 decision in Harper v. Poway Unified School District. The majority opinion (linked above) was by Stephen Reinhardt, Judge Alex Kozinski dissented here.

First, the facts. Stephen Harper is a student in the Poway Unified School District who, following the "National Day of Silence" in which gay and gay-friendly students refuse to talk in protest of discrimination and prejudice, wore an anti-gay t-shirt to school. Specifically, the shirt said "BE ASHAMED, OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED" on the front, and "HOMOSEXUALITY IS SHAMEFUL" on the back. The school had experienced tensions between homosexual and homophobic students before, including several physical altercations in the previous year. It was also subject to a lawsuit by gay students complaining of a pervasive attitude of harassment that the school did not act meaningfully to stop (a jury agreed with the students). In this context, the school asked Harper to remove the t-shirt. When he refused, he spent the day in the principal's office but was not otherwise punished.

This opinion is sure to be controversial. And it should be--the case is undoubtedly a tough call. Schools are permitted far more latitude in regulating student speech than is the norm in American society--Harper's t-shirt would surely be permissible if he wore it on the street. There are several reasons for this, but they boil down to the fact that schools play very special roles in society. Ultimately, there goal is to provide an equal opportunity for education for all, and speech which runs counter to that goal is at least more likely to be within the school system's regulatory purview. The question is whether this restriction in this context is permissible. I think Judge Reinhardt makes several important points in favor on this point.

First, he musters impressive evidence on the very real impact such hostile speech has on the education of gay students:
Speech that attacks high school students who are members of minority groups that have historically been oppressed, subjected to verbal and physical abuse, and made to feel inferior, serves to injure and intimidate them, as well as to damage their sense of security and interfere with their opportunity to learn. The demeaning of young gay and lesbian students in a school environment is detrimental not only to their psychological health and well-being, but also to their educational development. Indeed, studies demonstrate that "academic underachievement, truancy, and dropout are prevalent among homosexual youth and are the probable consequences of violence and verbal and physical abuse at school." One study has found that among teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school. Another study confirmed that gay students had difficulty concentrating in school and feared for their safety as a result of peer harassment, and that verbal abuse led some gay students to skip school and others to drop out altogether. Indeed, gay teens suffer a school dropout rate over three times the national average. In short, it is well established that attacks on students on the basis of their sexual orientation are harmful not only to the students' health and welfare, but also to their educational performance and their ultimate potential for success in life (21-23, internal citations and footnotes omitted).

It is overwhelmingly obvious to me that speech which causes these sorts of problems runs contrary to--indeed, overtly sabotages--the educational mission of the school. At the very least, it shows that this is not the stereotypical whine of a thin-skinned minority that wants to live a life free from criticism. Justice Kozinski is too trite when he writes: "Any speech code that has at its heart avoiding offense to others gives anyone with a thin skin a heckler's veto" (dis. op. at 35). This is hardly about "avoiding offense."

The next issue is how one distinguishes a shirt which says "Jews Will Burn In Hell" from the shirt present here. Reinhardt argues:
It is simply not a novel concept, however, that such attacks on young minority students can be harmful to their self-esteem and to their ability to learn. As long ago as in Brown v. Board of Education, the Supreme Court recognized that "[a] sense of inferiority affects the motivation of a child to learn." 347 U.S. at 494 (internal quotation marks omitted). If a school permitted its students to wear shirts reading, "Negroes: Go Back To Africa," no one would doubt that the message would be harmful to young black students. So, too, in the case of gay students, with regard to messages such as those written on Harper's Tshirt.

In other words, there are, I'm pretty sure, messages targeted at minority groups in which it is not controversial that the school can restrict. Why isn't this one of them? The clearest objection is that the moral status of homosexuality is politically contested, while racism is fringe (Kozinski makes this argument in dissent). Reinhardt dispatches with this argument rather neatly:
The dissent takes comfort in the fact that there is a political disagreement regarding homosexuality in this country. See dis. op. at 12. We do not deny that there is, just as there was a longstanding political disagreement about racial equality that reached its peak in the 1950's and about whether religious minorities should hold high office that lasted at least until after the 1960 presidential election, or whether blacks or Jews should be permitted to attend private universities and prep schools, work in various industries such as banks, brokerage houses, and Wall Street law firms, or stay at prominent resorts or hotels. Such disagreements may justify social or political debate, but they do not justify students in high schools or elementary schools assaulting their fellow students with demeaning statements: by calling gay students shameful, by labeling black students inferior or by wearing T-shirts saying that Jews are doomed to Hell. Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong. To say that homosexuality is shameful is to say, necessarily, that gays and lesbians are shameful. There are numerous locations and opportunities available to those who wish to advance such an argument. It is not necessary to do so by directly condemning, to their faces, young students trying to obtain a fair and full education in our public schools (26-28).

Can I just highlight this statement, by the way? "Perhaps our dissenting colleague believes that one can condemn homosexuality without condemning homosexuals. If so, he is wrong." That is very powerful language--rare to see in a Court opinion. It also is absolutely right, and in many ways the crux of the analysis Reinhardt is making. This line of reasoning may be uncomfortable for many, but I think that they are the ones who should be doing some soul-searching if they can't find a meaningful distinction between anti-gay and anti-Semitic or racist speech (see below).

I'd note that Kozinski seems willing to bite this point, admitting at the end of his dissent that:
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. 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 (36-37).

I admire his intellectual consistency, but this seems to be the point where nearly every American will depart. I do not find it controversial in the slightest that a school can prevent students from praising the Holocaust without breaching the constitution.

I'd add to Reinhardt's analysis that prohibiting only speech that is no longer "politically controversial" strikes me as far closer to impermissible viewpoint discrimination than banning speech that specifically targets a "discrete and insular minority", speech which empirically affects their ability to learn and grow as students. The latter is a prima facia compelling state interest, the latter isn't.

Admittedly, the school allowed a "Day of Silence", which is (at least Harper argues) a "pro-gay sentiment. Isn't it viewpoint discrimination to allow this view, but not the anti-gay view? Not particularly--unless a school must balance "religious tolerance" messages with "Muslims are evil sub-human" messages. Reinhardt elaborates:
Part of a school's "basic educational mission" is the inculcation of "fundamental values of habits and manners of civility essential to a democratic society." For this reason, public schools may permit, and even encourage, discussions of tolerance, equality and democracy without being required to provide equal time for student or other speech espousing intolerance, bigotry or hatred. As we have explained, supra pp. 28-29, because a school sponsors a "Day of Religious Tolerance," it need not permit its students to wear T-shirts reading, "Jews Are Christ-Killers" or "All Muslims Are Evil Doers." Such expressions would be "wholly inconsistent with the 'fundamental values' of public school education." Similarly, a school that permits a "Day of Racial Tolerance," may restrict a student from displaying a swastika or a Confederate Flag. In sum, a school has the right to teach civic responsibility and tolerance as part of its basic educational mission; it need not as a quid pro quo permit hateful and injurious speech that runs counter to that mission (37-38, internal citations omitted).

Okay, cool. So where is the dividing line, then? Reinhardt answers this in his footnote 27, which is the part crits will love:
The dissent suggests that our decision might somehow allow a school to restrict student T-shirts that voice strongly-worded opposition to the war in Iraq. See dis. op. at 12. That is not so. Our colleague ignores the fact that our holding is limited to injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group. The anti-war Tshirts posited by the dissent constitute neither an attack on the basis of a student's core identifying characteristic nor on the basis of his minority status (30 n.27, emphasis added).

This is the type of standard that makes the Crit in me swoon. Not only is it actually workable, but it recognizes the difference in status that minority groups face with relation to majority groups. He continues in footnote 28:
Our dissenting colleague worries that offensive words directed at majority groups such as Christians or whites will not be covered by our holding. See dis. op. at 21. There is, of course, a difference between a historically oppressed minority group that has been the victim of serious prejudice and discrimination and a group that has always enjoyed a preferred social, economic and political status. Growing up as a member of a minority group often carries with it psychological and emotional burdens not incurred by members of the majority. In any event, any verbal assault targeting majorities that might justify some form of action by school officials is more likely to fall under the "substantial disruption" prong of Tinker or under the Fraser rule permitting schools to prohibit "plainly offensive" speech (31 n.28).

Both the points Reinhardt makes here are worth emphasizing. First, that it is illogical and wrong to just group minorities and majority as needing to be treated "the same." They aren't similarly situated, so treating them similarly leads to unequal results. Second, and perhaps more importantly, is Reinhardt's implication that speech offensive to the majority is far more likely to be bannable in the status quo. Even if one does not think that any "offensive" t-shirt (e.g., "Hitler was right") can prohibited, I think virtually anyone with a mind believes that speech that is causing substantial disruption to the school can be stopped. This is far more likely to happen for speech offensive to the majority (because there are more of them and thus a higher probability that a) the speech will seem absolutely beyond the pale and b) that someone will take their anger too far). This implies that not adopting Reinhardt's standard is actually the discriminatory stance, since it would de facto prohibit actions against hate speech targeted at minorities while allowing such actions against speech the majority dislikes. This is doubly ironic, given that minorities should (given the first point) enjoy greater protection, but instead they'd be getting reduced protection. I should note that I do think that speech which targets the moral personhood of a majority member can also be restricted in schools (all of this analysis, I remind you, only applies to schools), I just think that a) the standards are different in that case and b) we have alternative mechanisms for addressing said speech.

The final thing I want to point out (and again, this is something Crits will love) is the intensively fact-based opinion Reinhardt wrote. Unlike Kozinski in the dissent, Reinhardt was not willing to gloss over the manner in which these sort of displays materially affect the lives of gay students. Kozinski virtually mocks the situation, citing to a variety of movies and books to show that going off-task in class is normal in school, and that "tense situations" are to be expected when people debate politics passionately. Maybe, but one's very personhood is not normally at stake in "normal politics." In any case, this type of experience-based jurisprudence highlights the importance of how the narrative of events are constructed in a judicial opinion. Comparing the overview of facts in Judge Reinhardt versus Judge Kozinski's opinions, one cannot help but feel the difference in how the case "feels." Same situation, two storytellers, two different conclusions.

A round-up of other views on the case:

Dale Carpenter and Eugene Volokh both comment over at the VC with substantive legal analysis. Both think the ruling was wrong, though Carpenter wonders if Tinker v. Des Moines should be modified so the ruling could be right. Orin Kerr smells cert.

Alexandra von Meltzen writes that defenders of the ruling (like myself, I guess) are "all conveniently confused about the First Amendment." She also gives the lethal epithet: PC. I supposed being "confused" is better than being an "oppressor", which is what Hoystory labels my ilk. Blue Crab Boulevard makes the same "confused about the First Amendment" claim.

Doc's Home says this is all about protecting the "professionally offended" from having their self-esteem hurt. So does Rovian Conspiracy. And Plus Ultra. Dmaetzon says the case stands for the principle that free speech ends if someone is offended. This parroted line of argument disturbs me, because it just brushes aside as irrelevant the court's documentation of the concrete harms gay students by just calling it an issue of "self-esteem." That demeans what is assuredly a complicated question. It's like dismissing a fraud claim by saying: "Oh, look, the Court is saying that the first amendment doesn't apply when naive people get upset! Boohoo!" At the point where the court identifies an empirically measurable harm, I think opponents have to do more with the argument than just dismiss it as a case of "self-esteem" gone wild.

Sister Toldjah can't conceptualize about what right could possibly be violated here. Allow me to quote Brown v. Board "In these days, it is doubtful that any child may reasonably be expected to succeed in life if he is denied the opportunity of an education. Such an opportunity, where the state has undertaken to provide it, is a right which must be made available to all on equal terms." And again, given two pages of empirical data showing that these types of slurs create an unequal learning environment for gay students, I think the right outlined in Brown is breached. Toldjah claims that the school should bar both the "day of silence" and these shirts. If she can find any credible evidence that shows those actions had empirically measurable impacts on Harper's ability to learn, then I'll take her seriously. Barring that, I still believe that a school can have a day promoting racial harmony without allowing the Klan to stop by for lunch.

This is the underlying fallacy--Colossus of Rhodey makes it too. The standard the Court set was when speech attacks the moral personhood of a community member. Rhodey says this is an "easy argument." I agree (though I don't think that "easy" equates "bad"). The First Amendment protects "disagreeable speech." But as our prohibitions on libel, fraud, and slander (among other things) establish, words that cause a harm ("words that wound") are not so protected. Insofar as the opinion relatively clearly established a harm in Harper's speech (that doesn't exist in the gay students speech), that strikes me as a perfectly logical place to line draw. That isn't to say that this is an "easy" case--it isn't--but the Court's linedrawing decision strikes me as a sound one to make.

A couple of surprising concurrences for my side, from Outside the Beltway and (possibly) Ann Althouse. Feministe's agreement is less surprising (and very close to mine own opinion). I don't know Betsy's Page.



Anonymous said...

I think you took the wrong idea from my post. The basic gist of my argument against the ruling, was if your going to allow one side the right to free speech, you should allow the other side to speak as well. Granted I don't feel the same way as the student does, but I don't find his shirt that offensive, now your analogy of the Nazi shirt, that would be offensive.

The other problem with the ruling is who gets to decide? Say a principal who is religious, and believes the same way as this student comes along, using this ruling he can now just as easily ban the pro-gay shirts and call them offensive!

I believe both sides should be represented or none at all.

Gaius Arbo said...

The problem with the ruling, as dmaestaz points out: who decides?
This is a greenlight for indoctrination, not education. There is NO constitutional provision guaranteeing a right to self-esteem. I'm kind of fierce on protecting the ones that are in there.

St Wendeler said...

It's like dismissing a fraud claim by saying: "Oh, look, the Court is saying that the first amendment doesn't apply when naive people get upset! Boohoo!" At the point where the court identifies an empirically measurable harm, I think opponents have to do more with the argument than just dismiss it as a case of "self-esteem" gone wild.

That's the main issue here... at what point are someone's hurt feelings an empirically measurable harm?

As opposed to a case of fraud, where this is actual empirical harm (typically monetary), whether a form of speech hurts one's feelings can only be determined by each individual that might witness the free speech.

Now, the speech which the scumbag was making is idiotic, stupid, and hurtful. And he should be ostracized for it and those of us who disagree with his message should stand up and condemn him.

Hiding ourselves behind the robes of justices each and every time we see something that offends us is surely not the way to counter idiotic statements...

What if this turdball had whispered his sentiments to someone he thought was a friend, out of earshot of those participating in the event? Since this speech is not protected, is the fellow student obligated to report the hate-speech to the authorities?

St Wendeler
Another Rovian Conspiracy

ColossusHube said...

words that cause a harm ("words that wound") are not so protected.

Actually, they are. Chaplinsky is the usual yardstick; however, the SCOTUS has been even more lenient since in interpreting "words that wound." And, as some of the other commenters here have asked, who gets to decide what "wounds"? Does a kid get to wear a "Mean People Suck" t-shirt to school? What about "Bush = Terrorist"? "Republicans Want War"?

Equally spooky is your contention stated First, that it is illogical and wrong to just group minorities and majority as needing to be treated "the same." They aren't similarly situated, so treating them similarly leads to unequal results.

Why even have the 14th Amendment and/or the various civil rights laws of the 1960s, among other items? Equal results is NOT (or, at least, should not be) the predication of US law. It is equal opportunity. When you start advocating for equal results in the law, the very concept of individual rights is obliterated, no matter if you're a member of the majority OR minority group. The effects of this misguided philosophy are already being felt in public education. Also check out "critical race theory", which, among other things, advocates what you presumably are vouching for here -- restrictive measures on majority speech to "rectify" wrongs done to minorities.

ColossusHube said...

but, as you may note, I argue that the school could have legitimately made a "disruptive educational environment" argument against the student wearing the t-shirt. And argument that the SCOTUS has concurred with, giving [public] schools considerable leeway in "restricting" 1st Amendment freedoms.

Anonymous said...

To those who argue the ruling on the grounds of free speech:

Public schools are, superficially at least, pro-diversity. They celebrate black history month and host foreign exchange programs. Yet, if a child showed up in an Aryan Pride t-shirt, he or she would be disciplined.

Public schools are not a democracy, and students are not guarenteed the right to free speech. I realize that tolerance is not considered a value by many in this country, but it is by most of our public schools. If you honestly feel that your child should not have to conceal his or her contempt for others for the sake of his or her education, perhaps home-schooling is for you.

Steve said...

It seems like this case is going to be a situation where the issues get confused with the facts. From what I understand, the overarching issue is the method by which the students participated, which is valid under Tinker and Fraser (and by extension Kuhlmeier) while Harper's actions resembled Cohen's "f--- the draft" jacket which is not allowed under Fraser.

The debate will most likely run like I've seen in many sites, where if one side can speak their mind, then the other should, as well. There may be a valid point there, but that point is moot if the method of the speech isn't valid.

The probligo said...

There is a second part that I believe belongs to every freedom - that of responsibility.

There is a responsibility to protect that freedom -

from misuse and abuse
from dimunition and loss

This case, in my mind, falls in the former.

jack said...

The dissent takes comfort in the fact that there is a political disagreement regarding homosexuality in this country.

Concievably, the fact that the issue is still controversial is a reason to support restricting this speech over restricting fringe speech. In most high schools walking around with a Hitler shirt is a quick way to get your ass kicked. Since it IS a fringe opinion the likely result is students uniting behind minorities in opposition to the kid wearing the Hitlet shirt. Since the opinion of the kid with the "HOMOSEXUALITY IS SHAMEFUL" shirt is probably shared by a significant portion of the student body. As such, that kind of speech not only injures homesexual students but leaves them without widespread support from friends. Further, it could likely spur additional hate speech and (since we know its happened before at this school) violence.

St Wendeler said...

Concievably, the fact that the issue is still controversial is a reason to support restricting this speech over restricting fringe speech.

Are you serious?

So, if there are controversial issues, only one side of the debate should be allowed?

The Iraq War is controversial... thus, let's only allow speech which supports the war.

Abortion is still controversial... thus, we should only allow speech which supports abortion rights.

Is this what you're really advocating?

St Wendeler
Another Rovian Conspiracy

Anonymous said...

Realize that as a procedural matter all of the "emperical data" cited by Reinhardt concerning the harm to gays will probably be ignored on appeal. Courts commonly face so-called scientific studies in controversial matters, and have set up a rigorous process to determine whether to accept the results of these studies. Among other things, the other side gets the right to challege the validity of those studies. Reinhardt by-passed this process through the use of "judicial notice." The fill 9th Circuit is unlikely to let that dodge stand.

Anonymous said...

I really don't think the "one-sided debate" arguments are at all responsive to David's analysis, nor the analysis in the decision. The argument goes that schools do not have an obligation to give intolerance and bigotry "equal speaking time" when they try to inculcate positive values. Inviting a speaker on civil rights doesn't require the school to invite the leader of the KKK.

That being said, your missing out on a couple key distinctions.

First, the decision is only talking about issues of personhood. Saying the Iraq war was unjustified or abortion is murder or whatever else does not actively attack the personhood or identity of anyone.

Second, the judge is only talking about historically oppressed minority groups. Clearly neither "pro-choice people" or "pro-life people" fit that bill.

I really think most of the obejctions being raised here have been answered. Maybe give the post a nother read-through?

jack said...

Re: St Wendeler

The fact that the issue is controversial is a reason in favor of restricting the speech with in the framework the decision establishes. That is "injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group".
None of those issues you mention have much to do with what I was talking about.

So yes, I'm serious- but I wasn't setting a standard for what speech should and shouldn't be protected just pointing out how the dissent's argument actually works in favor of the majority.

St Wendeler said...

Second, the judge is only talking about historically oppressed minority groups. Clearly neither "pro-choice people" or "pro-life people" fit that bill.

Ok, so free speech is only protected if it doesn't offend "historically oppressed minority groups." Can you point to that phrase within the 1st amendment, please?

I suppose that during the Civil Rights era, only speech promoting the civil rights of African-Americans was Constitutionally protected, huh?

The whole point is that idiotic statements cannot be restricted - and that's a good thing, since it's the actual debate which will change people's minds.

jack said...

Ok, so free speech is only protected if it doesn't offend "historically oppressed minority groups." Can you point to that phrase within the 1st amendment, please?

How simplistic. Can you point to the phrases in the 1st amendment that explain the clear and present danger exception? How about the exception for obscenity? How about libel and slander?

Seriously, stop acting like a kid yelling "I can do what I want, its a free country!" There is a context to this issue and to ignore the context is to completely miss the issue.

St Wendeler said...

Listen... i'm libertarian on this issue. More speech is better. Restricting speech is troubling.

Would it be okay for kids to wear "Straight is Great”" t-shirts to school? That would seem to get around the requirement that the speech "strikes at a core identifying characteristic of students on the basis of their membership in a minority group". (Since it's a statement supporting heterosexuality, instead of being against homosexuality.)

I could point to several studies that show that the existence of pornography on the internet does injury to millions of women and kids across the country.

So, I suppose we should outlaw pornography?

I could create a study showing the injurious harm to our troops in the field when protesters take to the street...

So, I suppose that type of speech should be outlawed as well.

I'm very libertarian on this subject... the more speech, the better. If you want to go down this slippery slope, you might not like the consequences in other jurisdictions or if the makeup of the Ninth every changes.

It will be interesting to see the opinions of the SCOTUS should this ever make it there... Like the marijuana laws and the Kelo decision, you could see the "liberal" justices take illiberal positions and the conservative justices take libertarian positions.