It's a "Day of Silence." So Shut Up.


Eugene Volokh weighs in on the case of Tyler Harper, who is suing his San Jose school after being pulled out of class for wearing a shirt declaring "Homosexuality is Shameful—Romans 1:27" in protest of his school's Day of Silence, an event sponsored by the Gay Lesbian Straight Education Network. A Ninth Circuit ruling issued this week declined to enjoin the school's policy while the suit proceeds, on the grounds that Harper was unlikely to succeed on the merits.

As Volokh argues, this is a disturbing ruling. Originally, a district judge similarly declined to issue an injunction on the grounds that the school's action fell under
Tinker v. Des Moines' "disruptive speech" exception to the general presumption of free student expression. As Judge Alex Kozinski argues in his dissent, there was actually very little evidence that administrators had good reason to think the shirt alone would lead to so much disruption of the learning process as to trump Harper's First Amendment rights. It seems a little perverse, in any event, to reward students who might physically attack others for their beliefs by preemptively silencing the potential targets of such violence. But it's an understandable rationale, and if administrators in this case were perhaps a bit hasty in concluding the shrit would be disruptive, they weren't crazy either: There had apparently been other, vaguely specified altercations on previous Days of Silence.

But Ninth Circuit majority didn't rely upon the "preventing disruption" argument. No, instead, they relied on the argument that messages like the one Tyler Harper wore violate the right of gay students to learn. That means they don't even need to adduce some grounds for thinking the shirt is likely to be disruptive: Messages like the one Harper wore are apparently just per se not protected by the First Amendment. The majority's argument for this involves a truly stunning leap from unsurprising findings that various kinds of anti-gay harrassment make school and learning more difficult for gay students to the conclusion that a message on a shirt, using no threatening language and addressed to no specific individual, would be likely to have the same effect.

If that reasoning stands up, it seems as though a school would be at liberty to bar pretty much any kind of expression of moral opposition to homosexuality. The same, presumably, would hold for T-shirts bearing the text "Islam Is Wrong" or "Catholicism Is Intolerant." It's not that I can't imagine a situation where the total semiotic environment reaches the point where it really does interfere with a student's ability to learn—you couldn't blame, say, the one black student in a school for having trouble focusing on algebra if half the student body showed up wearing Confederate flag apparel one day—but where First Amendment interests are at stake, we need to demand a substantial case-specific showing that there's likely to be a problem, not just breezily cite a few summaries of studies and hand administrators carte blanche to suppress all speech on one (and only one) side of a controversial topic.