Deal with it, Hemingway

The Irish writer James Joyce used to pick bar fights. Then just before things came to blows, he’d duck behind his burlier friend, Ernest Hemingway, and direct him to “deal with it, Hemingway.”

Over recent decades, public schools have been drafted to play Hemingway while the rest of us have taken turns impersonating Joyce.

This brings us in a roundabout way to the First Amendment.

The Founders were adamant that free speech and a free press are essential for the health and survival of a free republic. In a day where we see the press corralled, berated, and threatened at campaign rallies, and where the President echoes Stalin and Mao to declare our free press “the enemies of the people,” I’m especially leery about any abridgement of free speech.

However, the First Amendment doesn’t mean you can say whatever you want whenever you want to. The government limits citizens’ speech all the time without violating the Constitution – in a judge’s courtroom, in classrooms during instruction and tests, and by barring us from knowingly and “falsely shouting ‘Fire’ in a crowded theater.”

The nexus of free speech and classrooms is important not only because of my ardor for the First Amendment, but also because it illustrates society’s failure to grasp classroom reality.

Courts have clarified students’ speech rights in several decisions. In a Vietnamera student protest case, the Supreme Court ruled that students and teachers don’t “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” and that schools can suppress student political speech only if it “materially and substantially interfere[s]” with the school’s mission and operation.

One concurring opinion stipulated that students’ speech rights are not the same as or “co-extensive with those of adults.” A dissenting justice affirmed that school officials should be granted “the widest authority in maintaining discipline and good order” unless their limitations on speech are motivated by their own political opinions. Another justice warned that the court’s decision would effectively “surrender control of the American public school system to public school students.”

Two decades later the court clarified its position when a student used sexually suggestive language and “lewd” innuendo in a school assembly campaign speech. This time the court’s majority held that while the First Amendment protects some “offensive” forms of speech for adults, “the same latitude of expression is not permitted to children in a public school.” Officials’ concern for the “sensibilities of other students” constitutes a legitimate reason to limit student speech.

A recent case resting on these precedents featured breast cancer awareness bracelets bearing the inscription “I Y boobies.” Administrators banned the bracelets as “vulgar and inappropriate for middle school.” When two students defied the ban and were suspended, they sued the district for violating their First Amendment rights.

The school’s attorney argued that the “I love boobies” message “pushes the limits of propriety in public schools,” undercuts efforts to “maintain reasonable decorum,” and disrupts the school’s proper “focus on education.” He asserted administrators’ right to prohibit the use of “lewd language to convey political or social messages” when “the same message can be conveyed in a more decorous manner” without lewd language.

The students’ ACLU lawyer countered that “I love boobies” did not “reasonably” pose a “substantial material disruption” to learning and student behavior.

A series of federal courts eventually concluded that the bracelets were not “plainly lewd” and were protected as commentary on a social issue. The Supreme Court declined to hear the school’s appeal, which left standing the lower courts’ decision and overturned the district’s ban.

Let’s set aside the image of thirteen robed federal jurists discussing “boobies.” And let’s agree that fighting breast cancer is worthwhile

The principal, herself a breast cancer survivor, banned the bracelets as “imposing a substantial risk of disruption and distraction.” In contrast, while conceding “there are always immature boys,” one of the student plaintiffs opined, “But I don’t think it’s that disruptive.”

Who should get to decide how much disruption is too much – a seventh grader or the school principal?

Before you answer, consider the testicular cancer tee-shirt, also in current circulation, that bears the message, “I love balls.” How about the bisexual female high school student who came to school wearing a shirt declaring “I Enjoy Vagina”? Do we allow this as protected speech regarding her sexual preference? Do we allow a male student to wear the same shirt? How about the male football team?

The courts have ruled that administrators’ decisions must turn on whether they can “reasonably forecast” that the speech in question could disrupt education, violate other students’ rights, or obstruct “appropriate discipline.” No one can better judge what could likely disrupt a particular school than the principal and teachers who work there.

If you can’t trust me to decide about bracelets and teeshirts, how can you possibly trust me to disseminate ideas?

As for our distinguished jurists, anybody who can’t predict that many adolescents will have a disruptive, harassing field day with slogans that include reproductive organs and allied body parts shouldn’t be in the position of deciding what’s reasonable.

Once again your public schools have been rendered impotent.

Smirking vulgarity has triumphed in the name of free speech.

The courts and the general public will cluck their tongues at the further decline of public education.

“Deal with it, Hemingway,” they’ll demand as they duck for cover.

The nexus of free speech and classrooms is important not only because of my ardor for the First Amendment, but also because it illustrates society’s failure to grasp classroom reality.