Two rulings by federal appellate courts 3,000 miles apartthis summer revealed two very different ideas about protecting the free speechrights of high school students.
In July, the 9th U.S. Circuit Court ofAppeals denied a request asking that its full court rehear the case of aCalifornia student who was prohibited from wearing a T-shirt that said”Homosexuality is shameful.”
In a fiery opinion, the judges opposed togranting the rehearing said that protecting such messages would conflict withthe U.S. Supreme Court’s 1969 precedent in Tinker v. Des Moines IndependentCommunity School District, which allows administrators to censor studentspeech that would cause a “substantial disruption” of normal school activitiesor would invade the rights of others.
“The dissenters still don’t getthe message — or Tinker!” the opinion read. “Advising a young highschool or grade school student while he is in class that he and other gays andlesbians are shameful, and that God disapproves of him, is not simply’unpleasant and offensive.’ It strikes at the very core of the young student’sdignity and self-worth.”
Five judges supported the student’s request fora rehearing, and in a dissent they said the court was permitting the district toengage in viewpoint discrimination.
“[The student’s] shirt wasundoubtedly unpleasant and offensive to some students, but Tinker does notpermit school administrators to ban speech on the basis of “a mere desire toavoid the discomfort and unpleasantness that always accompany an unpopularviewpoint,” the dissent read, quoting from the Tinker decision. InTinker, the Supreme Court refused to allow Des Moines school officials toprohibit the wearing of black armbands protesting the Vietnam War despite theschool’s argument that such expression was extremely painful to students who hadlost family members in the war.
Meanwhile, across the country, the 2ndU.S. Circuit Court of Appeals ruled a month later that a t-shirt depictingGeorge W. Bush as a drug and alcohol abuser should not have been censored by aVermont high school in 2004.
Thirteen-year-old Zachary Guiles wore hist-shirt, which featured a picture of President Bush and the words “ChickenHawk-In-Chief” along with pictures and explanations of cocaine, drugparaphernalia and another picture of the president holding a martini glass,several times before a parent complained to administration in May 2004 andGuiles was suspended.
School administrators allowed Guiles to return toschool wearing the shirt — as long as he taped over the images of themartini glass and drugs — while leaving the accompanying words exposed,arguing the political message was still intact.
The court of appealsdisagreed, also applying the 1969 ruling Tinker ruling.
The shirt“did not cause any disruption or confrontation in the school,” thecourt found, and was a form of protected speech.
Read the full storiesat:
SPLC View: It is fascinating how two courts can arrive at suchdifferent conclusions about the application of a legal standard developed over30 years ago. The 2nd Circuit has followed a more traditional analysis infinding that because the Bush t-shirt was neither unlawful nor physicallydisruptive, it was protected speech. The 9th Circuit, on the other hand,recognized a new exception to the generally protective Tinker standard:expression that creates no physical disruption but that is “derogatory andinjurious” and “directed at students’ minority status such as race, religion andsexual orientation.” This new exception may turn out to be extremely difficultto define. Despite the fact the court appears to limit its decision toexpression in the form of t-shirts, the SPLC fears the ruling will be used tojustify censorship of news stories or editorials in student publications thatdeal with issues of race, religion or sexual orientation or that are perceivedas critical of individuals who happen to be minorities. The student inCalifornia is asking the U.S. Supreme Court to reverse the 9th Circuit’sdecision. No decision has been made whether to appeal the Vermont case.