Seldom has one piece of real-estate been so bitterly contested as the space between teenagers’ armpits. You could design a semester-long law-school course around First Amendment rights and T-shirts in schools.
The latest entry comes from a federal district judge in Tennessee, who decided last week that a Lynnville, Tenn., student had a constitutionally protected right to wear a pro-LGBT-rights shirt bearing the message “Some People Are Gay, Get Over It” — which her principal had difficulty getting over.
The case, Young v. Giles County Board of Education, was made substantially easier by the school board’s decision not to bother putting up a defense, which made Judge Kevin H. Sharp’s ruling a foregone conclusion. Still, portions of Sharp’s opinion are worth noting for their future application in other student-speech cases.
First and most importantly, a school cannot manufacture its own “disruption” by overreacting to speech. The Supreme Court’s Tinker standard says that substantially disruptive speech can be banned or punished. But the judge noted that the only “disruption” was caused by the principal’s own decision to humiliate Richland High School senior Rebecca Young by reprimanding her in front of a crowded school cafeteria. (The school told Rebecca’s parents, by way of a disturbingly ungrammatical letter, that the shirt was proscribed to protect Rebecca from being bullied. They just didn’t say that the bullying would be by the principal.)
Second, a public school can never restrict discussion of only one side of a contested issue. The judge wrote that both Principal Micah Landers and his boss, Phillip J. Wright, justified the ban on the grounds that references to LGBT rights are “sexual.” But by selectively enforcing the school’s prohibition on sexual messages only against gay-rights advocacy, the school crossed the constitutional line of “viewpoint discrimination.”
Rebecca Young’s case is reminiscent of the recent controversy in Chesnee, S.C., over a student’s insistence on wearing a T-shirt — “Nobody knows I’m a lesbian” — that her school attempted to ban as disruptive. In both instances, it appears that students (a more resilient audience than adult regulators care to credit) collectively shrugged at the message while school authority figures freaked out. (In the South Carolina case, the school backpedaled and rescinded the ban after acknowledging that the shirt did not in fact provoke any disruptive student reactions — only adult ones.)
Just as the consensus now seems established that Confederate flag apparel can be excluded from school in anticipation of disruption, there is growing agreement that LGBT rights are fair game for debate even on school grounds during school time:
- In 2008, a Florida judge struck down a Pensacola-area school’s ban on logos including rainbows, pink triangles and the words “gay pride” or “GP,” which students began wearing in defense of a classmate bullied for being a lesbian.
- In Ohio, a school district capitulated in the face of likely defeat in a First Amendment lawsuit and allowed a Waynesville high-schooler to continue wearing his “Jesus Is Not A Homophobe” T-shirt, which the district had characterized as “indecent and inappropriate in a school setting.”
- A Naperville, Ill., student won the right to wear a T-shirt with the slogan “Be happy, not gay,” over objections that the shirt would disrupt school activities by provoking bullying. (In a contrary view that appears based on the especially harsh language of the shirt, a federal appeals court sided with a California high school that banned a T-shirt reading, “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED… HOMOSEXUALITY IS SHAMEFUL,” which the judges classified as a “verbal assault” intruding on the rights of LGBT students to feel safe.)
These rulings are of potential significance to student media, because LGBT rights remain a lightning-rod issue regularly motivating schools to censor student newspapers and yearbooks. If students have a recognized right to express opinions on school grounds about the rights of gay and lesbian citizens, it is difficult to justify declaring the subject off-limits for mention in journalistic publications.