The Volokh Conspiracy
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A Different Sort of "Don't Say Gay"
A public school banned a "homosexuality is a sin" T-shirt on the grounds that it mentions "sex."
From today's decision by Judge Waverly D. Crenshaw, Jr. (M.D. Tenn.) in B.A.P. v. Overton County Bd. of Ed.:
When B.A.P. arrived in Henson's classroom on August 25, 2020, she was wearing a shirt stating, "homosexuality is a sin - 1 Corinthians 6:9-10." This shirt "express[ed] [B.A.P.'s] political viewpoint founded upon her religious beliefs," including her belief "in the Biblical mandate to spread the Gospel of Jesus Christ."
Henson told B.A.P. to report to the principal's office, and she complied. Principal Melton read from the school handbook and told B.A.P. that her shirt violated the dress code because it was "sexually connotative." … Melton told B.A.P. that she would not be released from the office unless she changed her shirt. Melton then instructed B.A.P. to call her parents and request a change of clothing …. B.A.P.'s father, Richard Penkoski, … asked Melton for clarification on his interpretation of the dress code. Melton read from the dress code and clarified that B.A.P.'s shirt might be sexually connotative because the word "homosexuality" on her shirt included the word "sex." Melton told Penkoski that B.A.P. would be forced to go home if she did not change her shirt, and the call ended. B.A.P.'s stepmother came to the school and took her home, and B.A.P. was marked "absent" for the day. "At all material times," Melton and Henson demanded that B.A.P. not wear the shirt to school again.
Plaintiffs maintain that B.A.P.'s shirt was consistent with an established practice of openly acknowledging issues of sexuality in the classroom setting. Specifically, Henson's classroom displayed what appears to be a standard 8.5x11 piece of printer paper affixed to a cabinet near the corner bearing the colors of the rainbow and the words, "diverse, inclusive, accepting, welcoming, safe space, for everyone." Plaintiffs characterize this image as "pro-homosexual." …
In Tinker v. Des Moines Indep. School Dist. (1969), the Supreme Court explained that schools may regulate student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others." {B.A.P.'s shirt did not display "'indecent,' 'lewd,' or 'vulgar' speech," as contemplated by Bethel School District No. 403 v. Fraser (1986).} … Tinker presents a "difficult question: how to balance some students' rights to free speech with 'the rights of other students to be secure and to be let alone.'" {The Tennessee legislature recognizes that "[a] safe and civil environment is necessary for students to learn and achieve high academic standards," and that "[h]arassment, intimidation, bullying or cyber-bullying, like other disruptive or violent behavior, is conduct that disrupts a student's ability to learn and a school's ability to educate its students in a safe environment."} "[T]o justify prohibition of a particular expression of opinion" under Tinker, a school must show that it acted out of "'more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint,' but rather, 'that the school authorities had reason to anticipate that the [student's expression] would substantially interfere with the work of the school or would impinge upon the rights of other students.'"
Schools, it bears emphasizing, are not required to wait for student speech to actually disrupt the school environment or interfere with other students' rights before acting. "Nor does Tinker 'require certainty that disruption will occur.'" Indeed, "[s]chool officials have an affirmative duty … to prevent [disruptions] from happening in the first place," and "'[f]orecasting disruption is unmistakably difficult to do.'" Therefore, the touchstone of Tinker is reasonability—"whether the record demonstrates 'any facts which might reasonably have led school authorities to forecast substantial disruption of or material interference with school activities.'"
Here, an adequate analysis of B.A.P.'s First Amendment claims against Melton and Henson requires a more developed record than is available on a motion to dismiss. Courts typically conduct a context-dependent inquiry to determine whether a school official's forecast of disruption was reasonable. On this Motion, the Court can only consider the allegations in the Amended Complaint, which state a plausible claim for relief. Plaintiffs allege that Henson removed B.A.P. from class due to the message on her shirt, Melton did not allow her to return to class because of this message, and both Melton and Henson told B.A.P. she could not wear the shirt to school going forward. The Amended Complaint does not, however, supply specific facts and context about Livingston Academy and the surrounding community at the time Melton and Henson took these actions. Without this context, the Court cannot determine whether Melton and Henson reasonably forecasted that the message on B.A.P.'s shirt would cause substantial disruption or interference with the rights of other students. Accordingly, B.A.P.'s First Amendment claims against Melton and Henson will not be dismissed for failure to state a claim.
For largely the same reasons, the Court declines to resolve Melton and Henson's alternative defense of qualified immunity at this time…. Where "granting relief to the plaintiff can only be done by recognizing a novel constitutional right," granting qualified immunity to a defendant may be appropriate prior to factual development. But that is not necessarily the case where "the clearly established inquiry may turn on case-specific details that must be fleshed out in discovery." … [R]esolving the question of qualified immunity for these claims is a task better suited for summary judgment than a motion to dismiss….
"Most parents, realistically, have no choice but to send their children to a public school and little ability to influence what occurs in the school." Students, for their part, cannot simply opt out of attending school. Over the years, the Supreme Court has explained some of the many ways that the school environment is unique. It is, of course, uniquely important to the vital responsibility of educating children. The school environment is also unusually close-quartered. "[Students] spend the school hours in close association with each other, both in the classroom and during recreation periods. The students in a particular class often know each other and their teachers quite well. Of necessity, teachers have a degree of familiarity with, and authority over, their students that is unparalleled except perhaps in the relationship between parent and child." And a public school is unique for its openness to all members of the community. "Through [the schoolroom] passes every citizen and public official, from schoolteachers to policemen and prison guards. The values they learn there, they take with them in life."
Within this tightly packed and diverse environment, it is inevitable that students will encounter and exchange ideas with peers of different backgrounds and beliefs. That is a good thing. But a school cannot advance its educational mission if the interactions between students are so confrontational or contentious that there is no room for ordinary instruction. In recognition of this unavoidable reality, the Constitution recognizes school officials' power to regulate student expression based on their reasonable belief that one student's speech will interfere "with the school['s] work" or "colli[de] with the rights of other students to be secure and to be let alone." Whether a given exercise of that power strikes a sufficient balance between protecting an individual student's First Amendment rights and maintaining a disruption-free environment depends on contextual details that do not lend themselves easily to resolution on the pleadings alone….
Note, of course, that unlike with the Florida law labeled by its adversaries as the "Don't Say Gay" bill, there really is a serious Free Speech Clause issue here: While a K-12 school is generally not constrained by the Free Speech Clause in controlling its own curriculum (including what teachers teach when teaching that curriculum), it is constrained by the Free Speech Clause when it tries to control what students say.
The opinion doesn't mention what grade the student was in, and I couldn't find anything about it in the Complaint, either, but some Googling suggests that this happened in 9th grade or thereabouts.
