Catherine J. Ross by unknow

Author:unknow
Language: zho
Format: mobi
Published: 2018-05-06T15:54:48+00:00

186 Tinker redux

much as proud Southerners, integrationists, and post- racialists. Whether they

intend to communicate hostility or believe they are only demonstrating pride

in their own culture, silenced students may be prone to conclude— as Barnette

warned— that authorities treat their freedom of speech as a “mere platitude.”

Recognition that the Speech Clause extends to racist expression or speech

that causes racial affront does not render educators powerless to react to

speech that offends many students and citizens. Schools can transform

offensive speech into teachable moments. In the real world children will

grow up to live in, they will likely have to learn how to respond to speech

they find objectionable and even unbearable without sinking to the offensive

speaker’s level or slugging him. It may be best to learn how to respond,

whether by walking away or questioning, as a student under the watchful

guidance of teachers rather than as an adult at a bar. Under the Speech

Clause, the best remedy for nasty speech is more and better- quality speech

that offers alternative visions and models civil responses.

“No . . . Hurt Feelings Defense”: Sensitivity, LGBT Students, and Politics

Targets for belittlement, and perceived belittlement, have proliferated in

recent decades, in direct response to mounting demands for recognition and

rights from a variety of groups. “Homosexuality is a sin,” declared the

T- shirt James Nixon purchased at a church meeting and wore to school.

“Islam is a lie!” the shirt continued. “Abortion is murder!” Nixon’s school

told him he could not wear the shirt because it might offend students and

staff members who were Muslims or homosexuals or had had abortions. The

school was wrong, as a federal court ruled in 2005.68

Since 2005 several federal appellate courts have invoked Tinker’s second

prong in analyzing the impact of disparagement on LGBT students. Almost

a third of states expressly barred disparagement based on sexual orientation

in schools as of 2012, and in April 2014 the federal government reinter-

preted the federal statute that bars gender discrimination as extending to

sexual orientation.69

Discussion of LGBT rights in the twenty- first century indisputably

involves political speech. Complaints against schools, however, suggest that

educators lie at two extremes: solicitous concern for the feelings of LGBT

students at the cost of free expression and assertions that schools lack any

legal duty to control harassment and violence aimed at LGBTs and may be

powerless to control similar conduct that falls short of harassment. All of

Words that harm 187

these concerns bring us back to the central question Justice Alito addressed

in Saxe: Does the Constitution permit a school to impose benignly moti-

vated limits on hurtful speech that does not meet the legal definition of

harassment or threaten material disruption?

In 2006, the Ninth Circuit looked to Tinker’s second prong in analyzing

whether a student had the right to wear a T- shirt that called homosexuality

“shameful.” The majority in Harper v. Poway Unified School District con-

cluded that students have a right to be protected from “cruel, inhuman, and

prejudiced treatment by others.” Verbal assaults based on “core identifying

characteristic[s],” the court found, “cause young people to question their

self- worth and rightful place in society.” Harassment “injure[s] and intim-

idate[s] them . . . and interfere[s] with their opportunity to learn.

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