Free speech and involuntary audiences.
Tyler Harper is, no doubt, just a naive high school kid with a religious prejudice. He went to his high school intent on pushing his fundamentalist view of the world. Actually I should not say "his fundamentalist view of the world" as one trademark of fundamentalism is that the true believer doesn't entertain his own views at all but repeats what he is taught. In Harper's case he decided to go to school with a message that was deemed anti-gay. He was upset his school had a Gay-Straight Alliance so he donned a tacky t-shirt saying: "Be Ashamed Our School Embraced What God Has Condemned" on one side and "Homosexuality is Shameful" on the other side. I have no doubt that Harper is a bigot. The school required him to change shirts. He complained and took the matter to court, no doubt with the help of the professional bigots in the Religious Right.
The court ruled that Harper did not have the right to wear this shirt under these circumstances. Judge Alex Kozinski dissented. He basically argued that the shirt was not disruptive of the school. The majority argued that the shirt was offensive to other students. I have great respect for Kozinski and have for year but what is the liberal position?
Liberals believe in free speech. No doubt about that but always within context. That is often forgotten. A right to speech does not mean a right at the expense of others. In this case I mean no one can promote their agenda using resources taken from others against their will. No artist has a right to a subsidy. No author has the right to be sold in a specific bookstore without the store's consent.
I find this case a difficult one because of the context. Now if Mr. Tyler were on his own property in his t-shirt and you find it offensive you can just leave. If it is a public street the issue is messy but resolvable. My view is the street is meant for all people to use and he should be free to express his opinion. Where the issue gets difficult is that Mr. Tyler wanted to use the coercive powers of the state to gather an unwilling audience for his message.
If I don't like a public speaker's message I can walk out. But in class a student can't just walk out. It's illegal. Blacks don't have to attend a lecture by the Klan. But gay students, or those just offended by hatred, at Tyler's school could not avoid his message since they are prevented from doing so by law. A private school could set its own rules legitimately for the reason that I can decide what messages people can present in my living room. But no one is compelled to attend a private school either. Not so for public schools which have the power of the state behind them.
The obvious answer is the end of compulsory government schools but the question the court faced was what to do under the current situation not under some future ideal. I would love to see more private schools and I would prefer that they be secular in orientation and not catering to fundamentalist prejudices and ignorance.
Certainly if I ran a school privately I would make it clear that certain kinds of prejudicial remarks are not acceptable. I think a good school ought to teach those kind of moral values about respecting the rights of others. Now whether government can do that is another issue especially since government in the US is not particularly respectful of the rights of gay men and women itself.
When we go to the context we usually find some answers. In private context the property owner has the right to set whatever rules he wants regarding the content of speech. In the public context that is more difficult. But I generally support total freedom there because all are required to support the public property then all should be able to express their views. A klan rally in a public park is allowable since no one is compelled to sit there and listen to the bigots. And most people normally see government schools as they would government parks. But there is that one nagging difference: students are compelled by law to go to school but no one is compelled to go to the park. Obviously the best answer is the removal of compulsion. The court had to decide in actual context not an ideal one.
I tend to think they decided correctly but only because of the involuntary audience that Mr. Tyler was taking advantage of. But while I think the court may have gotten it right I don't think they did so for the right reasons. As long as students are foced to attend government centres of any kind they should not be subjected to involuntary assaults on their character. By the way I would say the same is true in regards to anti-Christian messages one may wish to publicise in class.
Now does this mean the Gay-Straight Alliance should be banned from campus? No. No student is compelled to attend those meetings. It is a voluntary student activity not a mandatory school activity. Attending class is not voluntary. I would also allow Mr. Tyler to form an anti-gay alliance if he wanted because again no one is compelled to attend his meetings. But his fellow students had no choice as to whether they wanted to endure his bigoted messages being publicised across his t-shirt while in class.
I accept others may disagree and I'm open to persuasion as I'm not entirely confident about my own position here. Either way the element of having a forced audience clearly complicates the matter.
PS: I have confirmed that Harper's (pictured above) lawsuit was funded by a group from the Religious Right.