Ari Ezra Waldman | Education | Lambda Legal | Law - Gay, LGBT | News

'Jesus Is Not a Homophobe': Identity Harassment and First Amendment Rights at School

BY ARI EZRA WALDMAN

Twice last week, we heard about public school administrators who silenced the pro-gay expression of their students. At Fullerton High School in Orange County, California, an assistant principal disqualified Kearian Giertz from participating in the school's Mr. Fullerton Pageant after that student answered the stock question -- "Where do you see yourself in 10 years?" -- with some refreshing candor: After saying he wanted to fall in love with the man of his dreams, Mr. Giertz hoped that "10 years from now gay marriage will be legal in California."

HomophobeAnd, last year, a high school principal in Waynesville, Ohio (near Cincinnati) banned Maverick Couch from wearing a t-shirt that read, "Jesus is Not a Homophobe," to school. Lambda Legal's Christopher Clark and local pro bono counsel Lisa Meeks have sued Maverick's high school, claiming the principal's refusal to permit Maverick's pro-gay expression violated the First and Fourteenth Amendments.

Fullerton administrators have apologized, admitting only that the principal acted inappropriately. Waynesville leaders just made a tiny concession to Maverick, likely the result of the nudge from Lambda Legal. The school still called Maverick's speech "sexual" in nature. But, it's hard to see how a Christian message of love is sexual, unless you believe that all words that begin with "homo" are toxic, engendering stereotypical images of sex, sweat, and sodomy. Fullerton and Waynesville officials are wrong: Kearian's and Maverick's statements were Constitutionally protected conduct, not something to be addressed in private or only permitted on one day per year.

These cases demand that we think about the implications of our pro-Maverick and pro-Kearian positions: If we affirm Maverick's First Amendment right to say that "Jesus is Not a Homophobe" in a public school, must that freedom extend to his counter-protester who wears a t-shirt that says, "Be Happy, Not Gay" or "Homosexuality is Shameful" or "Be Ashamed, Our School Embraced What God Has Condemned" or "Straight Power"? If we believe that free speech is a limit on the state's power to silence any legitimate speech, it seems like we must accept the hateful bully alongside the tolerant messenger. It is, after all, a free country where Thomas Paine might disagree with us, but fight to the death for our right to express that disagreement free of censure. I would like to offer another option: Under the Supreme Court’s student speech jurisprudence, school discipline of identity-based aggressors is consistent with student First Amendment rights and need not silence pro-tolerance and pro-acceptance speech.

CONTINUED, AFTER THE JUMP...

ClarkMr. Clark's (pictured) complaint for Lambda foreshadows a straightforward First Amendment challenge: Maverick's t-shirt was a form of symbolic speech and expressive conduct that is protected by the First Amendment. His decision to wear the t-shirt neither caused any disruption nor interfered with school activities. And, by prohibiting Maverick's expression, school officials silenced otherwise protected speech and exerted a chilling effect on student speech without a counterveiling compelling government interest.

But, I have been involved in cases where conservative groups say the same things about Christian messages of intolerance brought to school. A t-shirt that reads "Homosexuality is a sin" or "Be Happy, Not Gay" is a form of symbolic speech and expressive conduct, as well. In those cases, the t-shirt did not cause any substantial disruption: the most it did was cause discussion among students, which, without more, is insufficient to justify school discipline.

Comparing the two kinds of speech is, however, illogical. The latter is identity-harassment; the former is identity-affirming. Identity-based harassment has no place in schools or in civil discourse.

Identity-based aggressors highlight an intrinsic quality essential to someone's personhood and demean it, deprive it of value, and use it as a weapon. They attack women, racial minorities, religious minorities, and other traditionally victimized groups. And, as such, they attack not only their particular victims, but also their victims’ communities. They commit a constitutional evil not only because their behavior interferes with victims’ access to education, their liberty to express who they are, and their right to participate in our body politic, but also because they perpetuate the legitimacy of a malodorous social stigma attached to any given minority status. 

And, yet, despite this reality about identity-based harassment, much of it goes unpunished because courts confronted with free speech defenses to school discipline of student speech approach those cases myopically. Most student speech questions are governed by four Supreme Court cases.

TinkerTinker v. Des Moines involved a classic silent protest of the Vietnam War, in which eight students wore black arm bands to register their anti-way views. The Court protected that speech from school discipline because it caused no "substantial disruption" to school or "infringed on the rights of others."

In Bethel School District v. Fraser, a young man was punished for delivering a lewd speech at an assembly and the Court upheld his punishment, citing the view that promoting lewdness was inconsistent with the purpose of public education.

The Court also upheld the censorship of articles about teen pregnancy and divorce in a student newspaper in Hazelwood School District v. Kuhlmeier, holding that a school could control student speech that bears in the official imprimatur of the school.

And, in Morse v. Frederick, a school lawfully disciplined a student who held up a "BONG HiTS for Jesus" sign at a school-sponsored Olympic rally, noting that a school could silence speech that could reasonably be seen as promoting illegal drug use.

In each of the latter three cases, schools did not have to show a "substantial disruption" to merit discipline: lewdness, official speech, and drug speech merited special consideration.

Most courts would say that speech that is not lewd or official or drug-related falls under Tinker, thus requiring a clear showing of a "substantial disruption" (or, at least, the expectation of one). Yet, wearing a t-shirt to school that calls gays shameful or sinful or diseased does not always cause such a ruckus that rises to the level of a substantial disruption. That mode of analysis misses the forest for the trees. Identity-based harassment need not cause a riot, but because it targets not just one victim, but victimizes an entire group and silences them and makes them feel worthless, its evil is far greater than an administrator having to take time out of his day to address a student protest. 

Besides, all four Supreme Court student speech cases have one consistent underlying rationale: the reason we restrict any student speech is because of the effects that speech has on something – on the teacher, or his/her ability to teach; on the administrator, or his/her ability to function in her official capacity; on the school, or its reputation, success, or curricular mission; and, of course, on classroom discipline.

Identity-based harassing speech differs from tolerant speech on controversial topics, then, because a school that countenances the former is a sick school, one that teaches hate and incivility, that gives tacit approval to the silencing of minority voices, and that fails to prepare students for a civic-minded adulthood in a republic.

Wearing a t-shirt that says "Jesus is Not a Homophobe" is not identity-based aggression: there is no deeply held characteristic of a marginalized group that is used as a sword against it. Allowing Maverick to wear his shirt would not force the school to tolerate "sexual" speech, as the shirt is not sexual. Nor would it put the school in a position that is anathematic to public education. But, speech that singles out a minority and beats down all those who share a core, defining characteristic will always be a stain on any school.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. if you can't tell the difference between wearing a shirt that promotes equality and shirt that promotes divisive bigotry then you're a complete moron who should therefore be ignored.

    Posted by: LittleKiwi | Apr 11, 2012 1:20:05 PM


  2. Palin, as the original Maverick, would want one. NOT

    Posted by: M. Scott Hernandez | Apr 11, 2012 1:35:32 PM


  3. the plebeian argument against this shirt seems to be saying "if you have a shirt with MLK Jr on it then what stops another student from wearing a pro-Hitler shirt/!?!

    i mean COME ON.

    Posted by: LittleKiwi | Apr 11, 2012 1:41:41 PM


  4. Ari --

    As a citizen, I agree completely with your argument. I like your very cogent and clear setting forth of the distinctions between affirming and harassing speech.

    However, I'm confused when you apply that distinction to state actors.

    From what I read, it appears to me that you make the case that this distinction can be drawn by state actors in the public school environment because of the precedent you cited.

    But do you really think that a federal judge or a Supreme Court justice would follow your argument?

    Furthermore, I'm already troubled by the distinctions drawn in precedent wherein the state actor has to make a decision about where the line is on free speech.

    Now you're asking them to make further decisions using the logic you're advancing here instead of simply declaring that all speech, by any citizen, regardless of age, and that does not incite to crime, is free and permissible.

    Again, as a citizen, I wholeheartedly agree that this is what I want in my environment. I don't like harassing speech. I don't like to hear it. I don't like to read it.

    But, in the spirit of Paine, I contend, pretty absolutely, that it is the Constitutional right of the speaker to make his views known publicly, however distasteful I find them to be. And, outside of the public school environment, you seem to agree.

    Can you talk more about why you trust state actors in public schools to draw this distinction in a way that favors us and that will not be used in some future way to harm? And why this kind of distinction wouldn't then find its way into the broader marketplace of ideas and have unintended consequences?

    I think that is what troubles me the most here.

    Thanks, as always, to your thoughtful analysis and for taking the time to interact with the comments.

    Posted by: Frank Butterfield | Apr 11, 2012 1:55:23 PM


  5. while it will likely never happen in the US, Canada makes the distinction rather clearly, and explicitly.

    if the "speech" you're using exists solely to promote and incite prejudice, bigotry and harm toward a specifically-targeted group then the question becomes What Is More Important - that you say it, or the safety and wellbeing of the individuals in the group you are targeting.

    it has NOTHING to do with "unpopular speech", AT ALL.

    the question i hear from americans is usually "well, who decides what's hate and what isn't?"

    simple - smart people who rely on facts, evidence and reality and not bogus chosen opinions that have no basis in reality.

    the US already has all kinds of limits on "speech" - tobacco and alcohol companies are not permitted to advertise to children.

    Posted by: LittleKiwi | Apr 11, 2012 2:06:13 PM


  6. I'd be curious about what might happen if the ACLU or Lambda Legal filed litigation naming the specific individual that restricted the speech as well as the school district. That way if a school district gets litigation shy, they can move to sever themselves from the case. That leaves the administrator being sued as the sole litigant and having to pay for their defense or any settlement. Then this clown from Orange County woulda thought twice before stopping this kid or the guy in Ohio having to sell his house because of his decision to restrict this student's speech. Just a thought.

    Posted by: Michael Vilain | Apr 11, 2012 2:16:32 PM


  7. @frankbutterfield: thank you very much for your insightful comment. i do not think the supreme court is willing to follow my view most notably because many on the court (not thomas, though) are of a similar legal mind as you: Now youre asking them to make further decisions using the logic youre advancing here instead of simply declaring that all speech, by any citizen, regardless of age, and that does not incite to crime, is free and permissible. the court is increasingly libertarian and absolutist libertarian when it comes to speech. however, i wholeheartedly disagree with that. an absolutist perspective on free speech is the very cause of rampant hate and harassment and the devaluation of free speech into a license to be irresponsible (i.e., sarah palin talking about shooting her political enemies with a rifle). the first amendment was neither intended as an absolute blanket freedom nor was it unhinged from the purpose of active and responsible citizenry in a republic. in my scholarship, i advocate for a greater sense of virtue in free speech discourse (much like epstein) and for a departure from libertarians like volokh.

    Posted by: Ari Ezra Waldman | Apr 11, 2012 2:19:05 PM


  8. @michaelvilain: thank you for your comment, but (a) the administrator was sued along with the school district and (b) suing the individual is less effective than the district because many officials have what we call qualified immunity from suit, meaning they cannot be sued alone. it would also be less effective: we want policy change, not some single individual fired.

    Posted by: Ari Ezra Waldman | Apr 11, 2012 2:20:55 PM


  9. thank you, Ari!

    when the reagan admin did away with the Fairness Doctrine it opened the floodgates for abusing speech, basically LYING saying is are protected. foul.

    Posted by: LittleKiwi | Apr 11, 2012 2:37:13 PM


  10. Ari mentions the huge distinction between free speech laced with hate and violence in contrast to free speech devoid of hate or violence, but then ignores it. Aspects of our law already distinguish between "hate crimes" and the same crimes committed without evidence of hate. We have quite a national discussion going on just now about "bullying"; what is bullying if not words and acts of hate and violence. It's not a great leap to apply a line of distinction between fomenting hatred and acts of violence with words of hate and violence from mere expression of opinion. When you go to the airport to get on a jet, you will meet a stopper to free speech immediately if you "speak" or act with anything akin to hate or violence. How is there any substantive difference to allowing a person who has indicated intentions of hate and violence on a jet, to permitting a student in school with a message or actions of hate and violence. I don't believe there is a substantive difference; both have a high probability of harm to the public at large. What are the compelling reasons that words and acts of hate and violence could possibly enhance liberty, justice, equality or government interest? How can words and acts of hate and violence be mistaken for a sub-set of free speech?

    Posted by: Greg | Apr 11, 2012 3:08:11 PM


  11. Look everyone, Dharun Ravi's biggest apologist is still writing for Towleroad! Hey Ari, I guess you decided that it wasn't worth your time to write about the culpability of Ravi's accomplices and the members of his would-be "viewing party." Or maybe you just aren't interested, since you belittle even Ravi's culpability and equate Ravi's punishment with Clementi's death.

    Posted by: Dan | Apr 11, 2012 3:13:19 PM


  12. well said, greg.

    as i've said before, what type of bullying hurts most? hearing some brat kids saying s**t at school, or going home, turning on the TV and hearing a politician or religious leader say the exact same things or worse to rapturous applause from a packed convention hall full of grown adults?

    but let's not forget that the Right will say "freedom of speech! don't get Big Government tell you what you can say!" and then insist that their "not Big government" wants to limit not only what words LGBT people can use for their relationships, legally, but what rights a woman has to her own uterus, or (as frothy would have wanted...) what currently-legal entertainments that one can enjoy in the privacy of their own home should be BANNED.

    Posted by: LittleKiwi | Apr 11, 2012 3:15:58 PM


  13. Your argument is problematic as it assumes "Gays" are victims. For a religious bigot only they are victims of the homosexual radicals working for Satan. Now I and any rational educated person knows that this idea is absurd. But should the state have the power to forbid the expression of mistaken ideas? Freedom of speech is for all ideas however absurd. And yes it follows that I may argue for Fascism or any set of ideas on such a basis, however extreme.

    You could get around this by defining certain speech as Harassment and criminal. But where do you draw the line between harassment and mere offensiveness? Bigots find Gay men and Lesbians offensive or there actual or assumed sexual practices. Within the framework of state neutrality about content your distinction seems unsustainable.

    Personally I don't mind the idea of bigots being fined or carted away to prison for a spell of firm punishment! But, in a Liberal democracy every one has human rights that should be respected. It would be undesirable to allow the power of the state to inhibit the expression of ideas. Some ideas are, off course, inherently hateful, but may not meet the test of being a direct incitement to crime.

    Posted by: Keith | Apr 11, 2012 5:46:40 PM


  14. Ari:

    First, just for giggles, I just want to point out that incivility is essentially a time-honored First Amendment tradition. We've made it a point not to censor simply because some find speech offensive. And yes, I know that you'll come back and say that the school environment is different. So I will grant you that (and I more-or-less agree with you in fact).

    However, assume that one believes that homosexuality is a choice, and presumably a bad one. How then, does a shirt that says "be happy, not gay" differ from a shirt saying "don't do drugs." From the perspective of the wearer, both urge others not to make what they consider destructive life choices. Your analysis is rife with subjective value judgments and assumptions which are not tenable under current First Amendment jurisprudence. What of the argument that the armbands in Tinker could be insulting to those who had family members serving overseas? I wonder what you would think about a shirt that says "God is a myth?"

    Moreover, I have to disagree that allowing shirts that say something about religion + homosexuality being bad ipso facto means that the school tolerates silencing of minority opinions. How does allowing one person to express their view silence others? Isn't what we teach in basic civics courses that each has the right to profess as they believe, and those who disagree are equally entitled to stand up and express as such? The argument that expression of a mere opinion serves to silence another cannot be tolerated under our tradition of free speech. It is unworkable in every way.

    I apologize for not being more thorough in my comments. I wish I could expound more; as an attorney who has practiced First Amendment law, this is a matter of keen interest and I believe we could have a good conversation about it.

    Posted by: Jack | Apr 11, 2012 6:38:32 PM


  15. @jack: thank you for reading and for your insightful comments. i am sure we could have a more in depth discussion of these topics -- neither a single column nor a single comment is sufficient space for nuanced discussion. however, while i agree with your first assertion (incivility as a time honored tradition) -- see the early political press and the rejection of the sedition acts -- but your entire argument is premised on modern liberal free speech doctrine: that the best response to bad speech is more speech, that basic civics courses [teach] that each has the right to
    profess as they believe, and those who disagree are equally entitled to
    stand up and express as such? these are classical liberal views of free speech, a la Kant, Rawls, Dworkin, and free speech libertarians like Justice Black, many on the current court, and absolutists. i disagree with that rationale. the first amendment was never an individual right, it was teleological, purpose-driven, meant by the framers as a simple limit on federal power, not the states power to make sure discourse aimed at achieving virtue in the body politic. this perspective does not think the right is in the person, instead the right is responsible to the group. so, i am challenging almost every assumption you make.

    Posted by: Ari Ezra Waldman | Apr 11, 2012 8:23:58 PM


  16. @Ari: I suppose that's a fairly irreconcilable difference, so I guess we'll have to agree to disagree. I guess it wouldn't surprise you to learn that I consider myself fairly libertarian in my beliefs.

    However, I'm not sure this difference really addresses two points:

    1) Would you also agree with a school's decision to bar students from wearing shirts that say "God is a myth?"

    2) How does expressing the belief that homosexuality is wrong, in and of itself, serve to silence the minority? Hearing not-so-nice things about ourselves doesn't strip us of our own voice. It may sting a little, but it would do a disservice to kids to lead them to believe that they can go through life never hearing something they find insulting.

    Posted by: Jack | Apr 11, 2012 8:45:32 PM


  17. Jesus was a first century believing Jew. Just as surely as he believed that sickness was caused by demons, you can be sure he was homophobic.

    Posted by: jack | Apr 11, 2012 10:45:50 PM


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