Amber Taylor reflects on Harper v. Poway's being vacated:
I don't disagree with Bethel's broad thesis that "[t]he undoubted freedom to advocate unpopular and controversial views in schools and classrooms must be balanced against the society's countervailing interest in teaching students the boundaries of socially appropriate behavior. Even the most heated political discourse in a democratic society requires consideration for the personal sensibilities of the other participants and audiences."I'm not clear on what has occurred that makes Amber think that the ability to advocate for certain ideas has been swamped by restrictions on certain modes of expression. The high-IQ set can continue to read The Bell Curve, advocate its ideas and look down upon the "'tards" -- they simply couldn't wear a particular T-shirt. According to the Ninth Circuit's opinion, "[Poway Principal] Fisher proposed some alternatives to wearing the shirt, all of which Harper turned down." There's no indication that Harper was prohibited from discussing the wrongness of homosexuality -- he simply couldn't wear a particular T-shirt. In both cases, the schools could document instances of altercations between the two opposing groups, and the Poway high school already had been held liable for failing to protect gay students from harassment. Amber concludes,
But I'm very hesitant to allow Bethel's holding that schools may restrict students from certain "modes of expression" (there, sexual innuendo used for the purpose of titillating other students) to swamp its apparent protection of the ability to advocate for certain ideas. What is to happen when a particular idea, be it the wrongness of homosexuality or the superiority of the high-IQ set, is deemed offensive and socially inappropriate?
This is not to say that time, place and manner restrictions on student speech are not necessary for the educational mission of the public schools to be fulfilled; they are. But just as students have a right to pray in school, given that they do so at appropriate times, they should have a right to express themselves and their ideas. The school years are when many aspects of personal identity are formed. Preventing students from having discussions with their peers about political, social, or philosophical issues of import stifles them just when they should be forming a sense of their place in the world and their beliefs about it.Again, there's no evidence that Brandt's and Harper's ideas were wholly stifled; they were prohibited from expressing them at a particular time (during school hours) in a particular place (on school grounds) and in a particular manner (by a T-shirt). Prayer is an inapposite comparison, given that prayer is an activity integral to many religions, whereas T-shirt wearing is a fairly recent phenomenon peculiar to the Church of Being Badly Dressed. Unlike Tinker, who was forbidden from wearing a plain black armband without any reference to whether it would cause problems -- "an official memorandum prepared after the suspension that listed the reasons for the ban on wearing the armbands made no reference to the anticipation of such disruption" -- Brandt and Harper wore T-shirts inscribed with slogans that they had been told would be disruptive for their classmates.
Frankly, students are given far more leeway in the public schools than they will be when they are in the workplace, which is reason to encourage them to express themselves in the public square rather than where they have more captive audiences. If Harper grows up and tries to pull a similar stunt in a homophile workplace, he's likely to face far more severe repercussions than one day of doing homework in the principal's office. On the other hand, he's perfectly free to stand before City Hall and express his sense of homosexuality's immorality 'til the cows come home. The sooner he learns the difference between the two, the better.