First Amendment protects right to wear 'Some People Are Gay, Get Over It' T-shirt to high school, absent any material disruption

|The Volokh Conspiracy |

From Young v. Giles County Board of Education, decided last week by a federal district court in Tennessee (some paragraph breaks added):

On August 5, 2015, the first day of her senior year at Richland High School, Plaintiff wore a t-shirt that read "Some People Are Gay, Get Over It." The shirt did not cause any disruptions throughout the day. Plaintiff states that "[n]o student or faculty member expressed to or otherwise interacted with Young in a manner manifesting any hostility, disapproval, or offense to the message on her shirt."

It was not until the end of the school day that Plaintiff encountered any hostility toward her t-shirt. Even that small measure of opposition came from not from her peers or instructors, but from Defendant Micah Landers, the principal. Defendant Landers summoned Plaintiff to the front of the school cafeteria, which was full of students, and informed her that she could not wear to school either her t-shirt or "any other shirt referencing LGBT rights."

Plaintiff's mother followed up with Defendant Landers by phone later that day, at which time he "confirmed that he had forbidden [Plaintiff] from wearing the shirt or any other apparel which bore phrases, symbols, slogans or other indicia of or in support of the LGBT community." Defendant Landers's stated reason, as relayed to both Plaintiff and her mother, was that this wholesale ban was necessary to protect Plaintiff from "bullying or harassment." Plaintiff's mother then telephoned Defendant Phillip J. Wright, Director of Schools for Giles County, Tennessee. Defendant Wright said that "pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code." In a letter several weeks later, Defendants again justified the restriction by stating that Plaintiff "would have been bullied or harassed by students" "due to the nature of the shirt's writing and the environment of the school." . . .

Plaintiff brings suit to stop her school from censoring her expression of her views on a topic of undeniable political importance. The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path. Nevertheless, the Court draws upon analogous precedent to reach the conclusion that Plaintiff will likely succeed on the merits of her claims. . . .

The Supreme Court has emphatically stated on a number of occasions "that students do not 'shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.'" Still, "the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings." Courts must apply the rights of students "in light of the special characteristics of the school environment."

Schools need not tolerate student speech deemed inconsistent with the educational mission even if similar speech might be protected outside the school setting. Yet neither may schools punish "silent, passive expression of opinion, unaccompanied by any disorder or disturbance" attributable to such expression, and "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression." In Tinker v. Des Moines Indep. School Dist. (1969), the Supreme Court articulated a test for the regulation of student speech on issues of political importance, placing the burden of proof firmly on the shoulders of the school:

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would 'materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,' the prohibition cannot be sustained.

. . . [O]ur inquiry in this case is whether the ban on apparel that references LGBT issues "is necessary to avoid material and substantial interference with schoolwork or discipline." Based on the evidence now before the Court, it is not.

Plaintiff wore her shirt without any disruption on August 5, 2015. The only disruption came at the hands of Defendants themselves, when Principal Landers addressed Plaintiff in the cafeteria. Apart from this indelicate approach to a sensitive topic, Plaintiff's shirt does not even seem to have been a blip on others' radar.

Moreover, Defendants have not provided anything other than conclusory statements to support their seemingly unfounded theory that speech on LGBT rights will disrupt the school environment. Merely invoking the word "disruption" falls far short of the showing that Tinker requires. Indeed, Plaintiff's uneventful day in her t-shirt, coupled with Defendants utter failure to participate in the litigation, virtually cements the Court's conclusion that the ban on LGBT-speech is not necessary to prevent a material and substantial disruption of the school environment.

The Court also notes that the ban at issue here is particularly problematic insofar as Defendants verbally prohibited only those messages supporting the LGBT community. Silencing only one side of the conversation constitutes a viewpoint-specific restriction, an egregious violation of the First Amendment. . . .

Sounds quite right to me. For a similar holding as to anti-gay shirts, see Zamecnik v. Indian Prairie School District #204 (7th Circuit, 2011).