Anti-Gay T-Shirts Not Allowed – For Now
The AP is reporting that ADF’s cover-twink, Tyler Chase Harper, can be restricted from wearing a shirt that says “homosexuality is shameful” to school – at least until his case can be heard.
Harper is claiming a first amendment right to try to shame his fellow students.
A majority of judges said, however, that Tyler Chase Harper was unlikely to prevail on claims that the Poway Unified School District violated his First Amendment rights to freedom of speech and religion for keeping him out of class when he wore a shirt with the message “homosexuality is shameful.”
The lawsuit results from Harper’s response to the 2004 Day of Silence. Harper refused to change his shirt and so was held out of class for a day and allowed to do homework in a conference room.
On Thursday, the three-judge appeals court panel said “the school is permitted to prohibit Harper’s conduct…if it can demonstrate that the restriction was necessary to prevent either the violation of the rights of other students or substantial disruption of school activities.”
The opinion, written by Judge Stephen Reinhardt and joined by Judge Sydney Thomas for a 2-1 ruling, didn’t decide the merits of the student’s lawsuit, which will be heard in federal court in San Diego.
The dissenting judge seemed unable to distinguish between the tactics employed by the Day of Silence and those employed by Harper:
“Harper’s T-shirt was not an out-of-the-blue affront to fellow students who were minding their own business,” Kozinski wrote. “Rather, Harper wore his T-shirt in response to the Day of Silence, a political activity that was sponsored or at the very least tolerated by school authorities.”
Kozinski did not differentiate between an event that was focused on inclusion and tolerance of others and a T-shirt message that sought to diminish and show distain for others. Kozinski validated Harper’s belief, a common one among the politically religious, that stating any beliefs which they do not endorse is an attack on them and their right to harm gay people.
Fortunately, for the moment, the politics of exclusion and shaming have been put on hold.
UPDATE: The Los Angeles Times has a more substantive article
Posted by: Kendall at April 21, 2006 12:03 AM
Kendall, I was mistaken, you did make a comment suggesting Stephen Bennett’s sexuality was questionable, not Chase Harper’s
I realize I have mostly dominated this thread but I would like to add one more quick point. in an earlier thread on the “Day of Truth” a lot of really interesting things were noted, particularly in the comments section. I’m going to post a few highlights which I think relate to the current thread, any emphasis added was my own.
TA –
But when that IS all that Chase Harper in this case is alleged to have done its STILL a problem for some people? Yes, you can quibble about “shameful” and “sin” but given the context is it strikingly different?
Timothy –
And no doubt taking away a student’s t-shirt will continue to discourage such counterspeech.
My point all along has not been to express a self-hating anti-gay opinion. Nor is it my goal to further the ideologies of hatred and intolerance, no one wants to have to listen to ex-gays harp about their message and their apparently unrecorded “success” rate.
What I don’t want however is to make people like Chase Harper into a martyr. I like how Timothy put in in another thread. 1100 students participated in the “day of truth” and in other threads it was reported at least some 500,000 students participated in the Day of Silence. To me, even on a day that is about gay people and about the bigotry we face every day, it is not the answer to supress those voices who would supress us.
I don’t want to turn into the same type of person as the Liberty counsel, who fight to end GSAs in schools across america. I don’t want to become like the ADF, fighting to get inaccurate information about gay bullying in schools. But how are we any different if we try to supress their speech? How is it that we can say that our ideas, our beliefs, are the only free speech that we will permit?
I’m as disgusted as anyone with Chase Harper’s message but there are ways, and there are ways to kill a message like that. To me, supression of his speech has clearly created a martyr. He was, as others have noted, begging to be suspended because it gave his ideology publicity. It puts money in the form of donations in the hands of right wing groups across the country. It makes a stupid message of bigotry into a symbol of christian martyrdom.
You can also ignore that message entirely. With no reaction to his message or outright ostracism Chase Harper would have likely either gotten more in your face and been suspended for actual disruption or he would have gone unnoticed and forgotten by the national press.
The third option, which I prefer is counterprotest, as Jayelle sugessted. As has been noted 500,000 people participated in the Day of Silence. Wearing a T-shirt with “Homophobia is Shameful” or even simply “True Love is nothing to be ashamed of” would have provided reasonable opposition to a counter message and would allowed Chase Harper to stand out, make his point and let everyone go about their daily lives.
We all want the freedom to speak out, and we all want the freedom to express ourselves and to be ourselves. Lets not get caught in the trap of assuming the only way to do that is to silence another message.
Kendall if I might address Bill Ware’s point:
I agree there are many places where no one’s going to wear a “homophobia is shameful”. T-shirt. Whether you agree or not a lot of people including many many mental health representatives believe the social rejection of people for being same sex attracted harms those people. Assuming this is true I say the school board has a right to take steps to address the harmful environment of social rejection represented by the “Homosexuality is shameful and condemned” message. Some have suggested that this problem would be well addressed by counter-speech. I agree, if it were possible. And that is the problem, in many many places counter-speech is not a viable solution to the problem of the harm caused to gay people by social rejection. Given that, the only realistic and available solution is to prevent the statements that demean, reject, and harm themselves.
The decision to ban the speech is not made on the basis of only pro-gay speech being allowed, its made on the basis of harmful speech being disallowed. I understand the end result is essentially the same but that is the inevitable result of the reality of there being no other viable alternative to address the problem well summed up by Bill Ware and others.
When Canada bans speech that calls for injuring or murdering others, its not that only pro-people speech is allowed, its that specific harmful speech is disallowed – most anti-people speech and possibly most anti-gay speech is allowed.
I say if the pro-gay message that gays shouldn’t be harmed is disruptive in Rhea county that’s a necessary temporary sacrifice for a greater good – teaching all that there’s no justice in rejecting those that aren’t harming you.
Randi – As I acknowledged and discussed. Thank you for clarifying that. I hope you do not think it is hypocritical of me to have a different standard in those two very different cases for the reason I discussed.
Randi – I agree with you that the message that gays shouldn’t be harmed is legitimate, even most of these right wing conservative christian groups seem to believe that. The message they seem to be intent on restricting is not “gay bashing is wrong” its “being gay is an inherent charateristic which individuals have no more control over than straight individuals do about their straightness. Homosexuality is not a moral issue, its an individual characteristic determined at least largely if not totally pre-birth and which at no time an individual decides. Gays have existed throughout time and are no different than straights other than their attraction at all levels to the same sex” Or, simply “gay is ok.”
You can believe something is not ok (for example self-mutilation, I find that to be a physically harmful practice and generally a symptom of emotional problems) and believe that an individual should not be harmed and deserves respect inspite of it (one of my best friends, happened to be a very nice, generous, kind asian girl happened to cut herself when she got depressed, she’s receiving help for the issues that caused her to do this).
I’m not making the comparison because I believe that self mutilation is the same as homosexuality. Homosexuality in my opinion is innate, self mutilation is not innate, its a psychological problem and a learned behavior. However, we all know that RWCC groups believe the opposite, and that such analogies are valid. What I’m suggesting is that even a person who expresses the view that something is not ok or shameful or negative in some way doesn’t have to be calling for violence, they simply believe (wrongly in the case of Chase and others like him, in my opinion) that there is a “problem” that needs correcting.
My view is that the best counter for this perspective is not “you can’t say that” but “that’s an interesting perspective. The APA, AMA, ACA, etc. would disagree with you. Would you mind discussing why you believe what you believe?”
The reason I developed this perspective is something else that I would like to briefly talk about. I have a friend who I was very close to. When I told him I was gay (when I very first started coming out in highschool he was the 2nd person I told). To put it kindly he took the news badly at first (he kept repeating “no you’re not, you can’t be gay”). Then things seemed to get better, he was normal about it, cracking new jokes, I thought he was dealing with it really well. Then one day he gets online and IMs me. His message was that verse in Leviticus we know so well. Then he goes on with Romans, and so forth. He pulls them all out. needless to say at the time I was feeling rather vulnerable because I had just come out. I felt like he was assaulting me with his beliefs and I felt like he wasn’t listening or understanding me.
So, what happened? we stopped talking. Took the summer off from each other and had a cooling off period. That fall, my senior year we started talking again. We talked a lot on his views of homosexuality and of me as a person. I did everything I could to understand his perspective because I truly liked him as a friend. He also realized that he liked me as a friend more than he was bothered about my sexuality. For a long time he was NOT comfortable with me being gay, in fact as he put it “I like you as a person… but I’m just not ok with your choice being gay.”
To me, that’s not a reason to give up on a friend. I knew he had been raised in a very conservative family, he’d never met another gay person. For him it was a scary experience, to meet someone so different than himself.
To skip ahead though, my patience paid off and he’s now completely pro-gay. He’s pro-gay marriage, pro-gay adoption, and pro-gay in general, as is his lovely girlfriend.
I feel that an openness to a perspective, even one that I strongly disagreed with saved myself a friend.
Bill Ware said “Children are more sensitive and vulnerable to criticism than we would expect adults to be. Protecting children from physical harm alone is not sufficient. As this report shows, psychological harm can be devastating. Gay teens have higher rates of suicide and other psychological difficulties. Fortunately, these rates have subsided since the Safe Schools and anti-bullying programs were initiated in the mid 1990′s.”
Timothy said “5. The question of whether hostility to gay students is damaging is not theoretical. As the majority noted, of teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school.”.
And I feel you pay very short shrift to this hence my mood on this thread.
That was a very nice story you told Kendall, now let me tell you what I envision as a result of the speech you wish to allow and seem to deny causes any harm. In places like Rhea County. And where I live.
A number of high school students wearing homophobia is shameful T-shirts and high fiving each other like Bill said. An effeminate kid scared s**tless to even think about wearing a “homophobia is shameful” T-shirt, walking down the hall as several good ol hetero-boys follow closely behind leaning into his personal space and loudly witnessing “Shame! Shame! Homosexuality is shameful!”.
As I understand it that wouldn’t be something you’d want to stop, but that’s the kind of thing I see happening where I live and in Rhea county. Its a whole different world in the city compared to rural areas and in Canada and I suspect the States there’s still a lot of people living in rural homophobia central. Counter-speech sounds workable in lots of large cities, but don’t forget about the 30% or 40% of us that still live in small towns, the country and small minded cities.
Randi – I draw a distinction between holding a view passively (wearing a t-shirt people are free to look at or not) and holding a view actively “as several good ol hetero-boys follow closely behind leaning into his personal space and loudly witnessing “Shame! Shame! Homosexuality is shameful!”.”
The situation you’re describing there is as harassing as name calling or teasing or any other activity that distracts from a student’s ability to learn. You’ll note there isn’t any allegation I’m aware of that Chase Harper SPOKE against homosexuality without any prompting. He didn’t force other students to listen to any of this. Nor did he harass anyone while he was wearing his shirt (you can claim the mere presence of his shirt is harassment, that’s what we’re debating, but he didn’t for example walk up to openly gay students and say “please read this shirt so that you may know the truth” or some such active thing).
So no, I wouldn’t support allowing that and if students in general or Chase Harper in particular DID start doing that, chasing down individual students and saying those views I would have a HUGE problem with that.
As for my response to statistics, please read my post regarding the McClesky case, it explains why I feel the use of statistics does not support the supression of speech we find objectionable even where harm exists.
Kendall, I am less concerned about the specifics of this particular case than I am about the potential negative effects if we allow this kind of message in general and the sort of results I have described might come about not to mention the actual negative results mentioned by Timothy and Bill. Better to err on the side of caution when we are talking children’s mental health. No way would I take a chance on allowing a t-shirt like Chase’s.
Now you say “The situation you’re describing there is as harassing as name calling or teasing or any other activity that distracts from a student’s ability to learn.”
I’m not clear if you’ve renounced the position you took early in this thread or not – that any speech that does not directly threaten physical violence should be allowed. The issue is not whether the t-shirt was distracting, its whether the message is harmful and if preventing it will help improve the aformentioned negative statistics. Given the improvement Bill noted since the Safe schools and anti-bullying programs were implemented to be frank anything you said about the Mclesky case made no impression on me.
It seems at times you’re asking me to restrict myself to legal arguments but then you yourself at times make arguments that either appear to contradict or ignore the law. Now as you emphasized earlier, gays are not a protected class in most U.S. locations. From my understanding of your arguments about what is and should be legal, the witnessing scenario I described in my previous post would be perfectly legal. It looks like an even more realistic possibility given this:
OH, ho! the ADF strikes again.
Posted by: Bill Ware at April 22, 2006 10:33 AM
I’m not sure the link will work from my post, you may have to go to Bill Ware’s post for that link to work.
Kendall,
Well, actually:
Rhea County High School
Student Dress Code
All Apparel
No messages are allowed. Brand logos not to exceed a 2” square are acceptable. Logos related to school or school organizations/ clubs are allowed.
Banning all messages certainly eliminates any disruptive messages. No one has to decide if a message is OK or not when none are allowed. Sure makes life simpler this way.
Modesty and neatness are emphasized in other sections. Upper wear, i. e. shirts and blouses, are to have sleeves and collars and are to be tucked in at all times. No “disruptive” hair styles or jewelry.
Citizens make up for this lack of “free speech” in school by holding rallies on the lawn of the Rhea County Court House. This solution suits me just fine.
Bill Ware – I agree that bannning all messages is perfectly fair, my only concern is with banning one message and not the other.
Randi – I have NOT changed my position one bit. I have said consistently throughout the thread that passive speech is different than active speech. Look at my second post in this thread, 3rd post from the top “What conduct? he just wore the shirt. That’s a passive statement and he’s pretty clearly making a political point. The law can’t say one political point is “valid” and one is “invalid”" I have remained consistent. I’ve rejected violence (repeatedly I might add) I’ve said that passive conduct is permissable so long as it is not disruptive, threatenening or violent.
I have NOT said “any speech that does not threaten physical violence should be allowed.” Where I think you got confused was where you said at Posted by:
I replied
Now, this is slightly misleading. You were asking me about hate groups and killing. I essentially stated that I never said hate groups should have the freedom to advocate calling for anyone’s death or inciting violence. I also pointed out that there was no allegation of either activity on Chase Harper’s part. That doesn’t mean I don’t support other restrictions. I’ve already talked about the “material and substantial disruption” standard in schools. I also have said I don’t support bullying, I don’t support harassment. Please read more carefully what I write.
Well kendall, I’m not about to dig through this entire thread for the third time to double check what you said, I stand by my statements about your statements.
I’ve read your long-winded comments completely and over again up until past the point where David was complaining about having to skim your posts because they are far from concise. Now my eyes are starting to glaze over too. You’ve made some reasonable points but much of what you say I find outlandish and the initial legal links you gave I find are not at all convincing regarding this case and the situations that might arise from it. As to you distinguishing between passive and active speech, that is an example of where it seems to me you are ignoring or contradicting the law – I never heard of a law distinguishing between active and passive speech, and frankly if it does it makes little difference to me regarding what is ultimately right and wrong, the difference is insignificant to me regardless of how much you want to hang your hat on that as a reason to allow some speech and not others. At risk of another one of your tangential pretzel logic legal postings, just what law prohibits passive speech and denies active speech?
Based on your performance here I no longer feel a need to hang on your every word to judge the reasonableness of what you say – I find it greatly lacking, and haven’t bothered to read your Mclesky link/post because I find the proposition that statistics don’t matter even though harm is present to be so absurd that at this time its not worth reading what recent history and logic suggests will make no sense.
Frankly I’ve said all I want to say some time back but I’m willing to give reasonable consideration to your posts as long as your willing to do so. I think we’ve heard everything you have to say and now you’re more or less repeating yourself. To that end let me repeat that which you apparently are content to have unfortunate kids battle out for themselves:
Bill Ware said “Children are more sensitive and vulnerable to criticism than we would expect adults to be. Protecting children from physical harm alone is not sufficient. As this report shows, psychological harm can be devastating. Gay teens have higher rates of suicide and other psychological difficulties. Fortunately, these rates have subsided since the Safe Schools and anti-bullying programs were initiated in the mid 1990′s.”
Timothy said “5. The question of whether hostility to gay students is damaging is not theoretical. As the majority noted, of teenage victims of anti-gay discrimination, 75% experienced a decline in academic performance, 39% had truancy problems and 28% dropped out of school.”.
At this time I couldn’t care less about some lengthy pretzel logic on Mclesky. If you have some concise summary statements about why you seem to care so little about what is so important to me I’ll read those. Anything else I promise I’ll skim through and respond to the best of my ability.
Due to sheer length, I am closing this page to further comments.
If someone would like to collect notes on areas of agreement and disagreement, and suggest a constructive means of continuing the discussion, please contact me via e-mail.