Saturday, December 27, 2003
�This case presents the ironic, and unfortunate, paradox of a public high school celebrating �diversity� by refusing to permit the presentation to students of an �unwelcomed� viewpoint on the topic of homosexuality and religion, while actively promoting the competing view. This practice of �one-way diversity,� unsettling in itself, was rendered still more troubling�both constitutionally and ethically�by the fact that the approved viewpoint was, in one manifestation, presented to students as religious doctrine by six clerics (some in full garb) quoting from religious scripture. In its other manifestation, it resulted in the censorship by school administrators of a student�s speech about �what diversity means to me,� removing that portion of the speech in which the student described the unapproved viewpoint.�What's at stake here, however, is the context in which this occurs. Eugene Volokh makes some good points on this:
the government was using students to express views that the government favors. Hansen wasn't speaking just for herself, in an open forum in which any student could speak. The school chose her as one of the three speakers to whom it gave a special opportunity to address a wide audience. It should be entitled to select those speakers who it thought would express those views it liked (e.g., pro-diversity as the government understands diversity) -- or to select speakers and insist that they express the views that it liked. Again, this may be unfair or bad educational policy or even somewhat deceptive. But it's not a constitutional violation.Context also matters in the Gonzaga case that FIRE is now pursuing. Can a student group that calls itself pro-life at a Catholic university be required to accept non-Christians? It depends on what the purpose of Gonzaga is? It does not have to recognize your group if it doesn't serve Gonzaga's goal; but what is that goal?
High schools are places where the government spreads its views to students. The Free Speech Clause does not, I think, prevent the government from using a variety of techniques -- speaking through its employees, speaking through people whom it invites because of their views, or speaking through people whom it tells what to say and what not to say -- to express its views (subject to the Establishment Clause constraint that the government can't take stands on religious questions).
Likewise, while "intelligent design creationists" (I like that phrase) may argue that they should have equal time in our high schools, Volokh's analysis may apply here as well. If the result of government writing its educational standards is to adopt evolutionary views of the origins of the planet, that view may be enforced. Parents should of course have the right to send their kids elsewhere if they disagree, but they cannot require their own views to be given equal time.
The point? Don't ask the government to make schools the way you want them. Make your own.