Friday, April 21, 2006

Students and Freedom of Speech

Eugene Volokh has up his reaction to a 9th Circuit ruling upholding a principal's right ban a student from wearing a T Shirt that criticized the school for embracing homosexuality and said "Homosexuality is Shameful."

I, of course, defer to Volokh in his knowledge of the First Amendment. After all, he wrote a textbook on it. This case seems in line with other decisions upholding schools when they ban certain clothing such as Confederate Flags on T-Shirts. The 9th Circuit ruled that such a shirt as this boy wore was hurtful and derogatory to fellow students and so the administration could refuse to allow him to wear it to school.

As a teacher, I tend to lean in favor of the administration in these cases. As my students are disappointed to learn, their right to freedom of speech is more limited than that of adults. We have some interesting discussions when we study some of the Supreme Court cases dealing with student rights such as Tinker v. Des Moines, Bethel v. Fraser, and Hazelwood v. Kuhlmeier, and I'm always intrigued to see that my students (mostly 10th graders) are split in their opinions of whether it is a good or bad thing to give the administration power to regulate their freedom of speech. When I began teaching these concepts I expected that students would unanimously feel that there should be no limitations on their speech, but a surprising number feel that the administration should have discretion in keeping order.

When I bring up the issue of the Confederate flag quite a few are willing to give up their freedom of expression if school administrators think that it would cause a disruption to wear such a shirt. Others disagree, of course. I bet that next year when I bring up this California case that they'll support the 9th Circuit's decision because of their sensitivity to any issue touching on gays.

The one case that upsets them with no exceptions is Ingraham v. Wright, the 1977 case from Florida that upheld the school's right to administer corporal punishment to students without a hearing. Boy, does that result get my students angry. Kids might be willing to give the administrators some authority over their freedom of expression, but absolutely draw the line on paddling. I know how they feel. I moved to Florida in the mid 70s when I was in high school and was astounded to hear that students were getting paddled in school. I've never taught at a school where paddling was allowed and can't imagine what that would be like. One more reason why I'm glad not to be an admistrator. I sure don't want to spend my career having to paddle teenagers.

I guess I'm not as much of an absolutist on the First Amendment as Professor Volokh. My main feeling is that I don't want judges getting into the business of second-guessing school administrators on what they think is necessary for maintaining order in their schools. Once we accept the premise that administrators should be shown deference in making such decisions, do we really want justices in Washington deciding whether certain T Shirts are acceptable and others aren't. At my school, I would like to see a very open policy that would only bar obscene shirts or ones that preached violence. But, I can imagine that certain schools might have more of a need to keep a strict hold on what could disrupt the learning environment there. I might not agree on what they choose to ban, but I'm not at their schools and wouldn't want to say that the administrators don't know their student body better than I do. When in doubt, as with most questions of federalism, I lean to giving the decision on as much as possible in our system, to the governing body closest to the problem and those affected.

However, I'm with Eugene Volokh in hoping that the Supreme Court will take up this issue again. Clarification would be useful and it would, as a side benefit, provide a great teachable moment for a government teacher.