Freedom of Speech and Public Schools

A recent fight over freedom of speech in schools has prompted me to air out my thoughts on this complex and important topic. The Boston Spirit reports on the controversy (03.02.2013):

The American Civil Liberties Union (ACLU) successfully fought to allow a high school student in Connecticut to wear a shirt that included anti-gay imagery.

Wolcott High School initially banned student Seth Groody from sporting a t-shirt with an illustration of a rainbow with a slash through it and a man and a woman holding hands with the words “Excessive Speech Day” on it. The school changed its position after ACLU intervention.

“The First Amendment was written to protect unpopular speech, which is naturally the kind of speech that will always need protection,” Sandra Staub, legal director of the ACLU of Connecticut, told WFSB of CBS. “The ACLU has fought hard for same-sex marriage and we couldn’t agree with Seth less on that issue, but he is absolutely correct about his right to express his opinion.”

I’m a member of the ACLU, and hugely respect their work. I have for years proudly given a small monthly donation to them because I admire their uncompromising principles. I entirely agree that it is unpopular speech – even bigoted speech – which often requires most protection, and I am frequently inspired by how the ACLU takes on the toughest cases in situations which are guaranteed to provoke widespread opposition. Good on them.

However, I am also a former high school teacher and educational researcher. Education is my thing. And I know from personal experience how unfriendly, scary, and unpleasant schools can be for students who don’t fit in. I consider it a primary responsibility of every school to make their environment safe for students – particularly students who are members of traditionally marginalized groups. I view this as nothing less than a basic ethical responsibility of public schools which they cannot fail to meet.

Furthermore, I judge that public schools have a further civic responsibility to promote equal participation of every person in society. A commitment to the basic rights and equal dignity of all students is fundamental, in my view, to any morally-acceptable vision of public schools. Public schools exist, and we mandate that people attend them, precisely because of the civic benefits they afford us: if they fail to promote those civic aims they have no claim to our support.

Enough foreshadowing, then: in this instance I’m not sure I agree with the ACLU. I’m not quite so certain that Seth Groody “is absolutely correct about his right to express his opinion.” At least, not while in school. In the wider society, he has every right to wear whatever t-shirt he likes, and I’d support his right in that. But while he is a student in a school, and while other students are effectively required to engage with his “speech” (they are not at full liberty to avoid it), I believe that it is reasonable for the school to require him to abide by a more limited code of conduct – and that makes me unsure about his t-shirt.

In principle such restrictions are not a radical departure from existing practice – indeed, they are precisely our existing practice. There are numerous areas and forms of expression which are curtailed in schools in ways which are considered in-line with the constitution. Schools can and have instituted school uniform policies, for instance, which could easily be construed as a limit to students’ free speech, but which have repeatedly been found to be acceptable under the constitution. Schools have anti-bullying policies which restrict actual speech in multiple ways which would not be acceptable in wider society: certain words, even certain tones of voice are subject to formal sanction within a school environment in order to preserve the integrity of the educational mission of the space. In the words of the Hazelwood v. Kuhlmeier 1988 Supreme Court decision:

“[a] school need not tolerate student speech that is inconsistent with ‘its basic educational mission’ … even though the government could not censor similar speech outside the school.”

As I’ve argued here, I consider it part of the “basic educational mission” of any public school to provide a safe and affirming space for every student. And this means, at times, making tough decisions regarding what speech should and should not be tolerated. In my view, racist, sexist, homophobic and other oppressive speech – outside the rule-governed bounds of a classroom discussion or some other institutionally-sanctioned space for the discussion of such issues – cannot be tolerated without the basic educational mission and responsibility of a public school being compromised. And I think Groody’s t-shirt might fall within that category.

Consider: it is not explicitly, in terms of its own symbolism (a slashed rainbow, a male and female stick figure holding hands, an oblique reference to “Excessive Speech Day”), a response to the “Day of Silence” (“a student-led national event that brings attention to anti-LGBT name-calling, bullying and harassment in schools”). Rather, it is a forceful expression of a heteronormative view which directly challenges the legitimacy of homosexual relationships – a challenge furthered by Groody’s decision to sell such t-shirts to other students.

In my view, it is only because we are still more accepting of homophobia in this society than of other forms of prejudice that we consider this remotely defensible. If we were simply to imagine a similar shirt depicting two stick-figures, with a slashed pair consisting of a black male stick figure and a white female stick figure, I think we would be significantly less inclined to argue that a student should be able to wear that shirt as a legitimate part of their speech in a public school. Any argument in favor of the student’s right of expression in this case would, I submit, face a serious hurdle to show how it does not disrupt the basic educational mission of a school more than, for instance, talking back to a teacher (which is something which is routinely sanctioned in the school setting).

I am open to argument and discussion on this issue, and I’m not certain of my stance – but I am certain that this case is not remotely as simple as it has been portrayed. Public schools have a legitimate and basic educational interest in promoting a safe and affirming environment for every student, and that, to my mind, cannot be pursued if students are allowed to actively promote the oppression of others.

About James Croft

James Croft is the Leader in Training at the Ethical Culture Society of St. Louis - one of the largest Humanist congregations in the world. He is a graduate of the Universities of Cambridge and Harvard, and is currently writing his Doctoral dissertation as a student at the Harvard Graduate School of Education. He is an in-demand public speaker, an engaging teacher, and a passionate activist for human rights. James was raised on Shakespeare, Sagan and Star Trek, and is a proud, gay Humanist. His upcoming book "The Godless Congregation", co-authored with New York Times bestselling author Greg Epstein, is being published by Simon & Schuster.

  • John Figdor

    Isn’t this a dicey precedent to set James? Imagine if an evangelical Christian student were to say that another student’s “Russell’s Teapot” t-shirt, or “Cheesus Christ” t-shirt mocked his religion and made the school an unsafe environment. That said, I agree with you that it obviously undermines, “the basic educational mission of a school.”

    • James Croft

      I think for me it would depend on the precise nature of the t-shirt. I would also say that since Christians are not an oppressed minority in the USA there is a different standard. But I agree that there are no easy answers.

  • Zachary Moore

    James, I was hoping for a more forceful argument to make a free speech exemption in this particular case. Rather, you present the rather questionable assertion that Groody’s shirt is precisely NOT what he claims it is. I assume that you don’t have clairvoyant insight into his intentions on the matter. Further, whether Groody makes this shirt available to others has no bearing on his intent. And inasmuch as the school’s official participation in the Day of Silence can be considered part of its basic educational mission, then a student protest on philosophical or theological grounds is perfectly appropriate, as the ACLU affirms.

    • James Croft

      Perhaps I was not clear, because this comment does not seem to address my primary argument. A number of points:

      1. I was not arguing in favor of “a free speech exemption in this particular case.” Rather, I was arguing for an interpretation of the situation in line with established Supreme Court rulings which see it as perfectly compatible with the Constitutional guarantee of free speech to also allow institutions to restrict forms of speech in certain settings. This is an important distinction.

      2. Intention plays very little role in determining the nature of a communication. The t-shirt is what it is – it has particular images and words on it, and that is what we must respond to (since it is this particular t-shirt, and the wearing of it, that is at issue here). He could have intended it to be a protest against free speech itself for all we know, but we do not make judgments based on intention but rather the concrete facts about the shirt. The fact he sought to sell the shirt to others is another relevant concrete fact, regardless of what he intended that gesture to mean.

      I submit there would not have even been a question of him being asked to remove the t-shirt if it had been specifically referencing the Day of Silence and objecting to that (i.e. if it had not made such a blanket condemnation of gay relationships).

      3. Even accepting that it is intended as a protest against the Day of Silence I still have questions regarding its acceptability for the reasons I outline. I do not believe that context makes this expression of homophobia any more acceptable.

      4. You say nothing to support your final assertion – you merely assert it. I do not find this compelling.

  • Blessed Jim

    This kind of problem was addressed in our local schools a decade ago. No one is allowed to wear a shirt containing any type of message. It was done to weaken gang identification, but works just as well to stop the type of descrimination describe in this blog. The school district even when so far as to set a uniform dress code specifying allowed type and color of clothing. I’m really surprised the school in this case did not come up with a similar solution.

  • smrnda

    Free speech in school is a complicated issue, mostly since your presence in school is compulsory rather than voluntary, and school officials are often fairly arbitrary and capricious when it comes to where they draw the line on what shouldn’t be permitted. There’s also the fact that schools are supposed to create an environment in which all students feel welcome and none feel threatened. Students who feel threatened by being obviously singled out by an anti-gay t shirt can protest that the ‘free speech’ of a homophobe is denying them equal access to education. Any balance of these principles is going to be imperfect and will often have to be resolved on a case by case basis, mostly since teachers and other people within a school have to figure out how to deal with things as they happen and don’t have the luxury of holding an in depth policy discussion every time a student shows up with a t shirt with a slogan on it that might be perceived as threatening.