Two cases of administrators restricting LGBT student speech, the cancellation of a gay valedictorian’s speech and administrators who asked students to remove T-shirts with the words “Gay O.K.,” have received high-profile media coverage in the past few weeks. With 55 percent of Americans supporting same-sex marriage and more Americans knowing and supporting transgender people, acceptance of LGBT people is increasing, but legal protections of LGBT students’ speech are not always very strong.
The case law on student speech still affords administrators a lot of control over what LGBT students can wear at school and say in official school speeches. However, the degree of an administrator’s control is highly dependent on specific school policies on dress codes or official school speeches and on how consistently the school applies those policies.
“Schools have a lot of latitude when it comes to the behavior of students inside their perimeter and that is really the key,” Glassman says. “It’s also about whether or not they’re violated the rules and whether or not the rules are applied fairly,” said Stephen Glassman, executive director of the ACLU of Connecticut.
Glassman said he generally sees more cases of administrators controlling LGBT students’ speech in states where there aren’t any nondiscrimination laws protecting LGBT people in general, but he says schools generally have the freedom to decide what goes on on school grounds.
Key U.S. Supreme Court cases from 1969 to 2007 provide perimeters on what students can and can’t say at school. These cases established a few restrictions on student speech, with the disruption test from Tinker v. Des Moines being the most notable. School administrators have to ask ‘Does the speech cause a disruption?’ and for other cases, ‘Is the speech lewd? Is the speech made at a school sponsored activity or event?’
The question set forth in Tinker v. Des Moines was whether the speech “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” Justice Abe Fortas wrote in the majority opinion.
According to the court, an “undifferentiated fear or apprehension of disturbance” does not take priority over first amendment rights.
“Gay O.K.” T-shirts don’t disrupt schools
One recent story that gained national media attention was a case of 15 or so students who chose to wear T-shirts that said “Gay O.K.” They wore the shirts to discourage bullying of gay students, and criticize the administration’s alleged lack of intervention, at Faubion Middle School in McKinney, Texas. The students were called out of the cafeteria at lunch and lined up, according to the students, which is when they began chanting “Gay O.K.” Administrators asked the students to take off the shirts or turn them inside out and those who refused to do so were sent home.
The spokesman for McKinney Independent School District released a statement saying that the students were asked to remove the shirts because the dress code bars “any disruptive or distractive mode of clothing or appearance that adversely impacts the educational process,” according to Metro Weekly. Only a few days later, after the story gained traction in several media outlets, the same spokesman told BuzzFeed News that “we told the administration that they should have asked the students to take off the shirts or change shirts … we told them they have every right to wear the shirts.”
The district may have taken some legal advice, because according to Derek Black, professor of law at the University of South Carolina School of Law, whose scholarship focuses on the intersection of constitutional law and public education, it’s unlikely the school could have argued that the shirts were responsible for the disruption.
“A ‘Gay is O.K.’ T-shirt is not a substantial disruption. Even if there was some level of disruption, I don’t think there’s much school could really do. But substantial disruption is when your shirt is disrupting the students, so when the administrators were asking the kids to take the shirts off they themselves were being disruptive,” Black said. “It has nothing to do with the shirts at all. To ask the students to give up their free speech and for the students to react like that — it’s hard to hold the students accountable for that.”
In the 1969 Tinker case, students wore armbands to protest the Vietnam War and refused to remove them when administrators asked them to. They were suspended but their parents claimed their first amendment rights had been violated, and the U.S. Supreme Court ruled in their favor. However, the court also ruled that student acts of expression should not be disruptive and that schools must be able to balance student express with its need to keep order.
In cases of student dress and student speech in general, there are several possibilities that all depend on the specific school dress code and enforcement of that code.
“Question No. 1 is, ‘Does the school have a dress code policy?’ and this has nothing to do with sexual orientation. The courts say there are reasons why schools may say there can’t be any messages on T-shirts that’s valid, so if a student wears a T-shirt with an LGBT message or something else that doesn’t matter,” Black said.
However, if a school doesn’t have any dress code and administrators and teachers chose to ask certain kids to stop wearing a t-shirt with a message they don’t like, that could become a problem for the school because it’s more clearly discrimination against a point of view.
“That’s what we call a general first amendment standard that says, ‘Is a student either 1) violating the rights of others with what they’re wearing or saying or 2) causing a substantial disruption or 3) and ‘If there’s nothing lewd or scandalous can students wear it?’,” Black said.
The lewdness question became relevant after a 1986 Fraser case when a student gave a speech filled with sexual innuendos. After the U.S. Supreme Court ruled it was acceptable for schools to “prohibit the use of vulgar and offensive terms,” students were also restricted from specifically making lewd speech as well.
Administrators have more control over school-sponsored events
Black and Glassman said that the case of a valedictorian, who wrote a speech for his graduation ceremony where he planned to come out as gay, is a little more challenging to argue in favor of students.
Evan Young, who attended Twin Peaks Charter Academy, said he showed the speech to his principal BJ Buchmann, but the principal asked that he not include any information on his being gay. Colorado Congressman Jared Holis (D) has called for an investigation into the school’s conduct.
“If the policy is to let administrators read the speech in advance to edit, you might feel it is to censor and restrict, but schools do have significant legal rights,” Glassman said. “If he were treated differently, that’s the problem. If students were able to make statements about their religion or identity or an issue that’s really important to them going on in the world, then it’s clearly not legal for the school to limit this particular speech, but that has not been discovered.”
A more recent student speech case, Morse v. Frederick, brought to the court in 2007, reinforced restrictions on student speech involving school sponsored activities and events from earlier cases, such as the Hazelwood v. Kuhlmeier case, when the court ruled in favor of censorship of a student newspaper. The school held an Olympic Torch Relay in 2002 and the student chose to put up a banner, “BONG HiTS 4 JESUS” across the street from the school, after which he was suspended.
Case law on student speech at school events
Chief Justice John Roberts wrote that the school did not violate his free speech rights because, as in Tinker, the school has a responsibility to maintain order, or, discourage illegal drug use more specifically, and that the school speech doctrine was still relevant because it happened at a school event.
For that reason, the case of the valedictorian’s speech is a less favorable to student speech rights than the T-shirt case, Black said. Controlling student behavior at a school event is easier to defend legally than controlling student behavior in the hallways, especially if you have a policy in place that allows staff to review speeches.
When it’s clear that the shirts themselves aren’t disruptive, the students are exercising pure political speech and are simply attending class rather than attending a school sponsored event, it’s much harder to argue that the school has the right to tell students to remove the shirts. When a student represents the school in a speech at a school-sponsored event, the school as a lot more control over the topics he or she is able to broach.
“The school is in a better position to argue that the student is, in some respects, representing the school, so it’s not what we would call purely private speech because the school is giving the student a platform. It’s not an open forum where you can say whatever you want, and you have to talk about your academic achievements, etc.” Black said.
When Congressman Polis emailed Kathy DeMatteo, president of the charter school’s board of directors, DeMatteo, about possible discrimination against the student, she pointed to the Kulmeier case that allows restriction on speech at school sponsored activities and events and said the speech was “condescending toward the school.”
She also said the school did not allow heterosexual students to discuss their sexual orientation in a commencement address. However, the two situations are difficult to compare in the sense that the context of straight students and gay students speaking about their sexuality is different. When asked how the school could compare prior heterosexual student speeches to Young’s speech in order to determine if the treatment is equal, Black said it would be difficult, but that may not matter.
“The law is going to be more sympathetic to the school. Yes, they’re hard to compare but on the other hand, they’re not courts so [schools] are given discretion,” Black said. “I would imagine it’s not the practice of heterosexual students to reference that as a valedictorian, so yes, even if there is some inequality, as long they’re equal moving forward, I think they’re okay.”
Options for LGBT students to protect their speech
However, despite the obstacles, plenty of LGBT students do convince administrators to stop suppressing speech outside of major court battles, Glassman said.
“Usually the ACLU, for example, tries to resolve these cases by negotiating or threatening letters are sent and a variety of vehicles, and very often that yields results, simply from telling them what the law is,” he said.
The ACLU sued Ponce de Leon High School in Florida in 2007 after a lesbian student tried to report harassment to school officials. Instead of punishing students for harassment of a student for her sexual orientation, the school stopped students from writing “gay pride” in notebooks or wearing rainbow-themed clothing. The school tried to argue that the symbols and statements, which included, “I support my gay friends,” were disruptive but it was enjoined, or ordered, to stop its restrictions on the students’ first amendment rights.
In his decision, U.S. District Court Judge Richard Smoak, Jr. referenced the fact that the Eleventh Circuit upheld censorship of speech and expression by school officials when it caused material and substantial disruption or collided with the rights of others,” referencing the 2003 case of Scott v. School Board of Alachua County, which held that a ban on the use of Confederate flags on school grounds was constitutional after racially based fights broke out at the school.