Here’s another good post by my favorite blogospherian, contrasting the Poway decision with a Reinhardt dissenting opinion on free speech in schools:
http://volokh.com/archives/archive_2006_04_23-2006_04_29.shtml#1145900557
[Eugene Volokh, April 24, 2006 at 1:42pm] 4 Trackbacks / Possibly More Trackbacks
Pro-Taliban Speech Constitutionally Protected, Criticisms of Homosexuality Unprotected:
Here’s an excerpt from Judge Reinhardt’s short dissent in Lavine v. Blaine School Dist. (Jan. 2002)( US Laws, Cases, Codes, and Statutes | FindLaw Caselaw ); Judge Reinhardt was taking the view that a school improperly disciplined a student for writing a poem with a violent theme:
I would add only that at times like those this nation now confronts, it is especially important that the courts remain sensitive to the demands of the First Amendment, a provision that underlies the very existence of our democracy. See Brown v. Hartlage, 456 U.S. 45, 60 (1982) (“[T]he First Amendment [is] the guardian of our democracy.”) First Amendment judicial scrutiny should now be at its height, whether the individual before us is a troubled schoolboy, a right-to-life-activist, an outraged environmentalist, a Taliban sympathizer, or any other person who disapproves of one or more of our nation’s officials or policies for any reason whatsoever.
Except of course, according to Judge Reinhardt’s more recent Harper v. Poway Unified School Dist. ( The Volokh Conspiracy - - ), when the speaker is saying that homosexuality is shameful, or displaying a Confederate flag, or making any other “derogatory and injurious remarks directed at students’ minority status such as race, religion, and sexual orientation” (even if the remarks deal with important public debates, aren’t personally addressed to any particular person, are in response to expressions of contrary views, and haven’t been found to create a substantial risk of disruption).
The First Amendment, you see, doesn’t protect those viewpoints in public high schools. It protects Taliban sympathizers (of course except when they criticize minority religions, or minority sexual orientations). It protects “any other person who disapproves of one or more of our nation’s . . . policies for any reason whatsoever.” But it doesn’t protect condemnation of homosexuality – an important argument for those who want to explain why they disapprove of, say, the nation’s policy on constitutional protection for same-sex sexual relations, or the state’s policy on employment discrimination based on sexual orientation.
It doesn’t protect the Confederate flag, presumably because it’s often seen as an expression of disapproval for the nation’s civil rights policies. (The Confederate flag can also be seen as having other meanings, but I take it that the offensive meaning, at least today, relates to some degree of disapproval of civil rights policies, which is on very rare occasions actual endorsement of slavery and much more commonly a generalized defense of Southern white culture, including its sometimes racist strains.)
And presumably it doesn’t protect speech that criticizes fundamentalist Islam, since that is of course a minority religion. The Taliban sympathizers can speak and criticize Americans and presumably Christians (but not Jews or gays) all they want; but Taliban opponents may not. That’s because in the Ninth Circuit there’s now a Judge-Reinhardt-created viewpoint-based First Amendment exception for speech that minority high school students find is “derogatory and injurious” towards their “race, religion, and sexual orientation.”
I’ll say it again ( The Volokh Conspiracy - - ): Under existing First Amendment precedents, there is a viewpoint-neutral First Amendment exception for disruptive speech in schools. Sometimes speech that’s hostile based on race, religion, or sexual orientation – as well as speech that offends people for a wide variety of other reasons – might indeed lead to substantial disruption, and thus might be restricted.
But this is at least a facially viewpoint-neutral standard that potentially applies to speech on all perspectives, and doesn’t categorically cast out certain student viewpoints from First Amendment protection. While the standard isn’t without its problems, it is at least basically consistent with the First Amendment principle of “equality of status in the field of ideas.” And there are quite plausible arguments that the government as K-12 educator should have still broader authority over speech in public schools (though this too would be a viewpoint-neutral First Amendment exception).
What bothers me is the Ninth Circuit’s newly minted viewpoint-based First Amendment exception, which singles out certain ideas for lack of constitutional protection.