Why is the state saying you must provide X for your kids if you want custody of your children and want to stay in the state coercion on you? It is only if you take custody and ability to reside in a particular area for granted, which is ridiculous - custody is power granted by the state, as is the right to reside in a given area. Note also that the argument made was that he was coerced, not that his kids were coerced. Don't forget that you're arguing against a strawman.


This may be true, but being forced to do X, Y or Z is not the same as being forced to do X.


That's not an argument anyone made and one that, even if it were made, would have been wholly irrelevant in the thread.

It started like this:

Note that "this" in this context refers to alleged censorship. Your (plural) arguments amount to: you're forced to either send your kids to school, provide some alternative education for your kids, move to another place, or lose custody of your children and since the other options are not appealing, you're forced to send your kids to children to public schools and anything that happens there is coercion.

I believe something called the 14th Amendment covers this. Incorporation (of the Bill of Rights) is the legal doctrine by which portions of the Bill of Rights are applied to the states through either the "due process" clause or the "privileges or immunities" clause of the Fourteenth Amendment.

ya. Phonebooth, that question has been answered about a thousand times over the past 50 years. In about every free speech case.

Its really too bad this thread was hung up on abstract notions of coercion. This case in appellate courts will revolve are age issue ( is a 12-13 year old an independent political actor and how much responsibility/freedom of speech is associated with that age group in an institutional setting) rather than coercion.

I'm not questioning whether the First Amendment applies to state/local governments, merely the following idea:

that entities other than the US federal government derive power from the US Constitution. The point is that the constitutionally relevant question is whether the federal government has power X, and that X here is power to override regulations imposed by some local school authority.

Aside from your misunderstanding of my argument; that depends on the type of speech. That the first amendment applies to state/local governments is not in question; but the scope is. The broader the scope is, the greater the federal government's power is.

And it has been decided by SCOTUS, over and over, that, due to the 14th Amendment, the federal government has the power to force the states and their sub-entities (counties, cities, etc) to comply with much of the Bill of Rights, which includes the Freedom of Speech.

I don't think age is as big an issue, when the language/image isn't particularly suggestive (either sexual, violent or otherwise) or otherwise considered age-inappropriate. It's difficult to opine on the actual case, since the facts aren't even clear - the administration disputes the student's and parents' version of the story. For all we know, the case may be frivolous - certainly the parents appear to have an axe to grind. On the other hand, if it is demonstrated that the administration has previously allowed expressions of similar nature in the same medium but of different content, the case could also be over pretty quickly - certainly precedents are that school officials cannot arbitrarily ban speech they don't like. I'm not (and few here would be) familiar enough with the general behavior of the students in that school to opine whether such a t-shirt would be disruptive.

Which then forces us to consider whether the speech is covered under the Bill of Rights. Which is my point - that this is what's relevant, not the question of whether state/local governments are constitutionally empowered to ban speech. I think you missed the point of my post.

Edit: the main point is that school authority's power to do anything here is not in question, and certainly not constitutionally relevant except to the extent it contradicts individual rights as explicitly provided for in the Constitution.

Btw, given this, do you agree with my other point that broad interpretations of individual rights especially relative to the powers reserved for the states as provided for in the Bill of Rights effectively increases the power and scope of the federal government relative to the state governments?

That sentence sure explains a lot about PB's posts.

This.

I also think the term "institutional setting" will play a key role. It's a difficult question, honestly.

While almost any rational person can see the danger in giving school administrators limitless powers to censor our children, one must also concede, at least imo, that administrators must have SOME authority in maintaining order. A principal cannot allow one student to disrupt 1000.

While I too suffered the bs of having to turn my Manson and Zombie t's inside out (as well as a Metallica 'Kill Em All' T once), I definitely don't think it's an acceptable position to say "no one has the right to tell my children what to wear to school".

Saying that phrase gives you feelings of warmth, liberty and freedom, until you turn it on it's head, and your daughter is the one staring at a t-shirt one of her classmates is wearing showing graphic gory images of abortion clinic bombings with mangled corpses with the caption "All In The Name Of LIFE" underneath, and when she tells you about it and you call the school to find out why this student was allowed to wear this into a school and are told "We don't have the right to dictate how students dress".

I'd really like to see the shirt in this case, because there is too often a large gap between what a reasonable person would find offensive and disruptive and what a school administrator will sometimes do.

A happy medium must be found. I don't want my daughter to have to look at a graphic shirt like the one mentioned above on the girl sitting in front of her in class, but I also don't want her being told she has to turn her Manson shirt around because the assistant principal read somewhere that he's a satanist.

I think some limits do need to be put into these policies. I don't want this to turn into the zero tolerance weapons policy, where every year you hear about some poor high school kid getting suspended for a ridiculous length of time because his principal noticed a small pocketknife in the cupholder of his car in the student parking lot, or some kindergartner getting suspended for sneaking a rubber knife from his toy soldier costume to school in his backpack.

Obviously, kids bringing a loaded gun into school is a danger, but a kid forgetting his 1" pocketknife is in his cupholder isn't. I feel the same thought pattern comes into play with student dress. Allowing administrators to make kids turn inside out or change any outfit a halfwit principal thinks may be mildly thought provoking or distracting is overkill. Saying "My kids have the right to wear anything they damn well please to school, without exception" is also overkill, just in the opposite direction.

A middle ground must be found. Somehow, common sense administration must come back to the public schools.

Right, absolutely it does, as provided for in the 14th amendment.

Not necessarily. Limited government does not just mean limited federal power, it also means limited State power. So, one who wants limited government might also want the Federal government to stop the State government from infringing on their rights. By granting that power to the federal government, yes, you increase its scope, but you limit the scope of the state by a vastly wider margin. I'm entirely unconvinced either way, regarding this issue.

However, I have no idea what you mean by 'broad, originally unintended interpretations". The 14th amendment was quickly used to protect the rights of individuals after it was passed (in about the 1880s, for example, with the first Civil Rights Act iirc)

There's some truth to this idea, but ultimately it leads to greater centralization of power. If you're for limited government, you ought to be weary of a larger, more centralized entity stepping in. There's nothing that stops one from limiting the power of the state government (or local school authority) without appealing to the federal government. After all these institutions have their own governing documents that outline their powers and responsibilities. On a more theoretical note, "government" exists at many levels, from family to local to state to federal. I mentioned custody earlier, but states claiming the right to determine custody is analogous to this situation - they're saying that to protect children's rights, parents' power over children must be limited. Roe v Wade is even more complex. You have the following power hiearchy:

Federal
State
Mother
Fetus

The mother is claiming absolute power over the fetus. The state is arguing that this power is limited and the fetus has rights that need to be protected. The federal government is arguing that the state's power to limit the power of the mother itself is limited and handing the power back to the mother.


Speech in public schools was never an intended target by those who wrote the first amendment or the fourteenth amendment. Tinker, much like Roe v Wade, relies heavily on a novel, situational reinterptation - mainly that those who wrote the words did not mean to cover this sort of situation, but given the change in context, it is sufficiently comparable to the scenarios they did consider that to ensure the spirit, one ought to treat the situation as though it is covered by the wording. In short, the same reasoning used to expand federal powers using the interstate commerce clause.

Just as an update to this case, it sounds like the school district isn't settling, and a trial date has been set for August 31st, 2010. I told my friend (a non-practicing Catholic) he should go to church every Sunday for the next year so that they can't paint him as anti-abortion. LOL! I'm also threatening to blackmail him with the crazy pictures from our 30th birthday party we had together!

Just a huge waste of taxpayer money IMO as this case almost certainly should go in favor of the school.

I'm not absolutely familiar with Federal cases, but if the mother loses the case, can she be forced to cover the school's legal fees?

Trial date set in case of McSwain girl who was forced to remove anti-abortion shirt

Of course the case is going to go in favor of the school, this isn't first amendment rights and the court has often ruled in favor of schools of them being able to do what they feel is correct to run the school. If the school deems this against the rules it will be very hard for them to lose. You can't just go around a school with anything on a shirt and say "I have first amendement rights!" It doesn't fly that way.

I think the fact that the shirt has images of unborn fetuses on it is enough to make the school's action appropriate. The purpose of putting those images on the shirt is obviously to elicit an emotional response from observers, and emotional responses could lead to imminent disruption. If the shirt just said "Pro-Life" or even "don't kill unborn children" then it would be acceptable, just as a pro-choice shirt or any other shirt would be.

I wore a "Will Work for Sex" T shirt to school when I was a freshman. I made it to 4th period before a teacher said something to me.

Wasn't even told to take it off or turn it inside out, just not to wear it again. They must have been worried about a lawsuit, lol

So are we going to ban biology texts that have pics of unborn fetuses in them also?

No, because the purpose of those images is to educate the textbooks' readers about biology, and everyone reading those books knows it. Furthermore we have the benefit of knowing that the images in those books haven't caused disruption in extensive practical use. On a t-shirt, the purpose is to proselytize its audience to a controversial point of view by evoking an emotional response.

Or, in other words, to cause a disruption.

Some posters in this thread don't understand what freedom of speech means and assume it means you can say anything without repercussions.

It also seems that a lot of people are inconsistent about what is "being disruptive" and what is "free speech."

Is it OK to be disruptive in Cambridge Mass. when the police are searching for possible burglers, but not OK to be disruptive in expressing a political view on a T-shirt?

These issues are more linked than some people think.

Well, I certainly wouldn't argue that the girl could be arrested for wearing the shirt, just that the school can make her choose between wearing it and attending the school.

Precisely.

"On a t-shirt, the purpose is to proselytize its audience to a controversial point of view by evoking an emotional response"

As far as I understand the shirt didnt have pictures of shredded up aborted fetuses, it just had pictures of normally developing fetuses. If it were the former then I would probably agree it might be worth getting him not to wear it due to the graphic/violent nature of it.

Im ok with a ban on a shirt with this:


But if it had this, then whats the harm?

I guess it depends on how graphic the image is. Any full body shot is going to be dicey at best. The second of your pictures is okay I guess. But in general I think the school should have latitude on what it feels is appropriate as long as it is within reason. Of course I wouldn't expect anyone advocating a position based entirely on pathos to agree to this.