February 22, 2007

For Once, Posner Is Not the Elitist

by PG

UPDATE: Follow-up.

Amber Taylor criticizes Judge Richard Posner's opinion in Brandt v. Board of Education as

dangerously elitist in its refusal to protect speech that is childish or uneloquent. ... Similarly, his brusque assertions about the existence of other avenues of protest, such as petitions to the principal and school council, ignore the importance of being able to communicate the message of a protest to different audiences; expressing something to one's schoolmates is not the same as expressing something to a school official. ... I wonder what else could be considered an "inappropriate slogan" in public schools: anti-war messages? anti-Bush messages? anti-homosexuality messages in a school with gay students? Posner's ruling tars all such expression with a pretty broad brush. It was apparently more important for the judge to snark at the students than it was for him to respect the rights at issue.
The plaintiffs are a group of "gifted" students who referred to themselves as "gifties," in opposition to the non-honors students with whom they share a Chicago public school and whom the "gifties" called "'tards"; the named plaintiff's mother is lead counsel. One of Amber's commenters asks, "Was it really necessary to continue using "gifties" and "tards" throughout the opinion? I mean, really." Personally, I find it ironic that Amber calls Posner the elitist in this dispute. Whatever snarkiness she detects in this opinion probably derives not from his scorn for Tshirts as speech, but for these "giftie" brats, and he uses their childish language to emphasize the conflicts existing at the school that were in the minds of administrators in their decision-making.

But the importance of context cuts both ways. The protesters in this case are school children. They are privileged schoolchildren in a school that contains a majority of nonprivileged children. They insist that unless their T-shirt is adopted by the entire eighth grade, they will as it were secede, and flaunt their own T-shirt. They do not recognize the principal’s authority or the legitimacy of the school’s procedures for determining the winner of contests.
In other words, the gifties were thinking There's no way another Tshirt could be better than ours! And the class Tshirt should represent the gifties, not the class generally! A parent who supports her child in referring to others as "'tards" needs to go back to kindergarten herself. I was in all the gifted/ honors/ Advanced Placement classes in my underperforming public school -- so backwards that I was the first person there to take the Calculus AP exam -- but I certainly never referred to people outside those classes as "'tards" and neither did anyone I knew. Maybe it's just something about being in a non-magnet Texas school, but we were well aware that many of the non-honors students were much cooler than we were, especially the athletes. (Another reason not to call the non-honors students "'tards" -- they tended to be bigger than us, too.)

Inasmuch as the gifties were trying to express something to their 'tard schoolmates, that was precisely what the school administrators were worried about: that the gifties' expression would incite fights and disrupt order. The gifties were free to wear their Tshirts outside school, in social interactions that most likely were limited to one another and did not include the 'tards. (I can't deprecate such self-segregation too much, as my high school graduation party invitation list almost matched the National Honor Society membership.) The eventually-lifted prohibition was on their engaging in speech that teachers feared would be taken personally and angrily by other students. Pro/anti-war, pro/anti-Bush, in eighth grade even pro/anti-choice messages all are suitable political speech for school because children mostly don't care enough about political issues to become disruptive over them. Direct insults, whether of another student's race, religion, sexual orientation or educational status, on the other hand, are far more likely to create problems for administrators who are harried enough in just trying to get these damn kids to graduate so they can start with a new bunch of hellions.

Perhaps tutoring just has given me more fellow-feeling with the teachers than with the students, but my sympathy is far more with those who have to educate than with the obstreperous adolescents too self-obsessed to recognize when their preferences may impede that objective. Nothing personal against the students at Beaubien Elementary; it's the nature of teenagers to be selfish and immature, which is why we don't have teenagers run the schools. And the necessity of order in schools, much like the necessity of order in public life, does not allow authorities to burden speech excessively. At the same time, the very existence of a non-school public life means that school restrictions inherently are far less onerous than general governmental restrictions. If I can wear my giftie shirt everywhere except school, I still can express my sentiments to my schoolmates, my neighbors and the public generally. I just don't have the specific academic venue as a stage for my speech. Admittedly Posner says,

The defendants also contend that there was a danger that the non-gifted children would be incensed by the gifties’ refusal to accept the result of the election, and violence might result; there apparently had been a shoving incident between a “gifty” and a “tard” a week before the gifties started wearing the Brandt T-shirt. But the evidence of tensions between the two groups of student was not developed, and so cannot be a ground for upholding the defendants’ actions.
Nonetheless, that administrators reasonably had disruption as a concern is part of the rationale behind giving administrators discretion in the first place: "Prohibiting children from wearing to school clothing that contains 'inappropriate' words or slogans places appropriately broad limits on the school authorities’ exercise of discretion to maintain a proper atmosphere."

It's easy to say now that elementary and secondary school are a decade behind me, but I just don't see speech within those confines to be as vitally important as speech in public life generally. Moreover, Amber misses what Posner is really deriding: not the childishness of how the message was communicated, but the childishness of the message itself. Her reference to Tinker is inapposite because there the message was a quite serious political one, and Posner actually cites Tinker to support his argument that "clothing as such is not -- not normally at any rate -- constitutionally protected expression." He points out that the plaintiffs wisely are not asserting the T-shirt itself to be protected speech, only when the T-shirt is worn to protest the election for the official class Tshirt. "We must be precise about the right that the plaintiffs sought to vindicate by protesting. It is the right to an explanation by the school for how the election to pick an official eighth-grade T-shirt was conducted." The subject of protest probably would be an improperly content-based rationale for regulating protest, but it's a perfectly suitable explanation for the tone of Posner's opinion. Indeed, that tone was predictable from his question at oral argument: "'Why do people bring lawsuits for such trivialities?' Judge Richard Posner, a notoriously tough jurist, asked [lead counsel and named plaintiff's mother] Dymkar during a three-judge hearing of the U.S. Court of Appeals for the 7th Circuit Thursday. 'Have they been harmed, these Gifties?'"

February 22, 2007 09:53 AM | TrackBack
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