Should minors be allowed to sue their schools, even in a conservative cause?

As discussed at VFR in April 2006, a California high school held a pro-homosexual “Day of Silence.” A student protested with a t-shirt condemning homosexuality. The principal ordered him to remove the shirt, the student refused, and he ultimately brought a suit to the U.S. Court of Appeals for the Ninth Circuit, where he lost. VFR of course took the side of the student. But reader Terry M. goes beneath the surface and asks, what gives a teenager the right to sue his own school in federal court over his “rights” in the first place?

Terry M. writes:

In your article from last year, “Without God, no consent of the governed,” the discussion centered on the ruling of the Ninth Circuit Court of Appeals in a case between a high school student and the public school he attended. The first question that always comes to my mind with regard to these kinds of lawsuits, and the claiming of rights on the grounds of first amendment protections, is why is a dependent minor elevated to the status of full citizenship in this country, subject to its laws and entitled to its constitutionally guaranteed protections of civil rights? Isn’t this a usurpation of parental authority, and isn’t this what liberalism seeks to do; to tranfer authority over children from their parents to the state; to sever the natural bond between child and parent?

I don’t agree with the ruling of the court, but isn’t the bottom line here that the children of American citizens are entitled to the protection of their fundamental rights as human beings, but that they have no citizenship rights or privileges outside of, or distinct from their parents; that they are subject to the laws of their parents first? Isn’t the bottom line that liberalism, excercised by their parents, the state, their schools, and etc., has taught and is increasingly convincing them that they are equal with everyone including their parents in authority and individual autonomy; indeed, that they are equally citizens with their parents and authority figures, not by choice or ownership of any kind, but simply by birth? And though the job is not completed yet (they can’t vote until they’re 18 and etc.), isn’t that where liberalism is ultimately taking us? On what grounds did this child threaten and ultimately bring this lawsuit against his school?

LA replies:

I don’t know what the court precedents are that give minor pupils the right to sue their schools over their First Amendment rights, but it certainly fits with the overall pattern of modern liberalism under the 14th Amendment as radically expanded by federal courts. [The precedent is Tinker v. Des Moines Independent School District, a 1969 decision in which the Supreme Court held that high school students could wear black arm bands to school to protest the Vietnam War so long as their behavior was not disruptive.] All of society is now devolved into a collection of individuals with rights that are enforceable by federal courts. Families have no real authority, municipalities have no real authority, school boards have no real authority, states have no real authority, the only jurisdiction that has real authority is the United States as a whole, enforcing the rights of individuals against family, school, municipality, and state. So, in the name of this individual rights paradigm, the school allowed the pro-homosexual “Day of Silence” event in the school. And in the name of the same individual rights paradigm, Tyler Harper, a minor, was permitted to bring a suit all the way to the U.S. Circuit Court of Appeals protesting his school principal’s order that he remove a t-shirt condemning homosexuality.

In a morally ordered United States of America under a Constitution that had not been turned on its head by the Incorporation Doctrine, the “Day of Silence” would not have taken place in the school, because schools would not allow such student activism and would have the unquestioned authority to enforce that position; and Tyler would not have been allowed to bring a federal suit over a t-shirt, because the school principal and the local and state authorities would be the highest authorities in the matter of student dress.

However, now that we are in this federalized individual-rights free-for-all unleashed by the Incorporation Doctrine, the rights of conservatives obviously must be protected under the same system that gives rights to the left, and that did not happen here. But how can we expect simple fairness for traditionalists, under an anti-constitutional, revolutionary system specifically designed to wipe out all traditionalist beliefs? The only real solution is a return to constitutional government.

However, I need to qualify the above. The 14th Amendment says that no state shall deny to any person the equal protection of the laws. While I don’t know the details of the case, it would seem likely that Tyler would have a legitimate 14th Amendment equal-protection claim, since the school allowed the student pro-homosexual event to take place, but did not allow Tyler to wear a shirt opposing it. But this only returns us to the underlying insanity. If traditional institutions had not allowed their authority to be displaced by individual rights, including the absurdity of giving students the right to hold a pro-homosexuality event at their school, Tyler would not have felt constrained to oppose this event with his own political speech. Very simply, a traditional school would not allow students the right of free political speech, left alone speech in favor of homosexuality.

LA continues:

A further point about the Ninth Circuit decision discussed in the original blog entry. The judges held that a t-shirt message could be barred if it strikes at a “core identifying characteristic of students on the basis of their membership is a minority group.” Meaning that to say that homosexuality is bad is not allowed, because you are attacking a specific group, while for the homosexuals to demand acceptance of homosexuality is not attacking any group, and therefore is allowed.

The terms of the debate are thus set up to give rights to minorities that majorities do not have. In each instance, the minority is seen as advancing the expanded rights and freedom of some particular group or behavior, which, on the face of it, is not to harm or attack anyone. But to condemn the group or behavior whose rights are being demanded, is to attack someone. Therefore, by definition, all minority claims for rights must be allowed, and all majority protests against such rights must be prohibited, if such majority expression identifies the concrete group or behavior whose rights are being demanded.

Is there any solution to this outrage, under our current, distorted system? I would say Yes. A reading of “equal protection” that permits some people to promote homosexuality as good, but refuses to allow other people to criticize homosexuality as bad, is indefensible. Similarly, to allow a student event promoting diversity or multiculturalism or Hispanic culture, while to refuse to allow other students to criticize diversity, multiculturalism, and Hispanic culture, would not be correct, Equal protection means that all sides of the debate are given the same rights. If people don’t want homosexuality or Hispanic culture to be criticized, they shouldn’t be promoting those things. You can’t allow one side of a debate in a school, and not allow the other. Furthermore, Tyler’s t-shirt was not calling for violence. It was saying that the Bible condemns homosexuality. I would guess that a fair-minded liberal judge, as distinct from the leftists on the Ninth Circuit, would have found in favor of Tyler.

However, I repeat that the true solution is that such contentious political speech, for or against homosexuality, for or against “diversity,” does not belong in a school, period. Once you have turned schools into ideological battle grounds, you have fundamentally distorted them and the situation cannot be made right.

Terry M. replies:

Very good.

I agree. And that’s precisely what I was getting at. The way we get caught in this trap of taking up sides, yet not taking a principled stand against the underlying root problem is that our thinking has become so clouded by liberalism that many times we cannot even see what the problem is fundamentally. If we’re concentrating our efforts on trying to solve the surface problems, neglecting to get to the root, all of our efforts will have been for naught ultimately because even with a few victories here and there, the war is being lost since liberalism is controlling our thinking and the way that we choose to attack it; to attack its effects, not the cause. Thus, liberalism continues its advance by our very aiding and abetting it.

This seems like a case of the unprincipled exception. [LA replies: I’m not sure that this is a case of the UE.] Since we are in agreement with Tyler’s position, we automatically get behind it and support it, our minds having been so corrupted by liberalism that we cannot see our stand should be against liberalism and its cause, not its extreme effects when they come to bear on us. We should never encourage and assist children to advance the cause of liberalism this way, regardless of whether they’re on the right or the wrong side of such an issue. In this particular case, the only principled stand I can see would have been for Tyler’s parents to sue the school on Tyler’s behalf for encouraging and allowing such student activism to occur on its campus. A principled stand is not to counter what should be unauthorized activism with more unauthorized activism. Nor is it to support it when others who we happen to agree with engage in the practice. Or as dad used to say “two wrongs don’t make a right.”

Terry continues:

I just read where you added two more paragraphs to this reply. The first of which states:

“However, now that we are in this federalized individual-rights free-for-all unleashed by the Incorporation Doctrine, the rights of conservatives obviously must be protected under the same system that gives rights to the left, and that did not happen here. But how can we expect simple fairness for traditionalists, under an anti-constitutional, revolutionary system specifically designed to wipe out all traditionalist beliefs? The only real solution is a return to constitutional government.”

I’m in complete agreement here as well, particularly with the concluding sentence.

Posted by Lawrence Auster at September 09, 2007 03:39 PM | Send