"Small Town Values" and "The Gay Problem:" How Do We Apply Tinker and Its Progeny to Lgbtqa Speech in Schools?

Article excerpt

INTRODUCTION .......... 132

I. First Amendment Student Speech Cases ............ 136

A. Tinker v. Des Moines Independent Community School District: Permitting Symbolic Political Speech as Long as it Does Not Create Substantial Disruption ..........136

B. Bethel School District No. 403 v. Fraser: Banning "Lewd" Speech from Schools ..........138

C. Hazelwood v. Kuhlmeier: Banning Controversial Speech that Bears School's Imprimatur ..........139

D. Morse v. Frederick: Banning School Speech "Reasonably Interpreted to Promote Drug Use " ..........140

II. LGBTQA Student Cases and the First Amendment ..........141

A. Gay-Straight Alliances and the Tricky Issue of the "Limited Public Forum " ..........141

B. Same-Sex Prom Dates ..........145

C. Gender- Variant Yearbook Pictures ..........145

D. Suppression of Pro-LGBTQA Speech ..........146

III. Does the Pure Symbolic Speech Prong of Tinker Apply to LGBTQA Speech Cases? ..........148

A. Tinker and LGBTQA Speech Cases ..........148

B. Tinker Exception Cases Do Not Apply and the "Limited Public Forum " Argument is Incorrectly Applied to GSAs ..........150

IV. Assuming the Pure Symbolic Speech Prong of Tinker Applies, Courts Should Adopt a Balancing Test for the Tinker Substantial Disruption Prong ..........152

Conclusion ..........154

INTRODUCTION

Okeechobee High School in Okeechobee, Florida.1 Lubbock High School in Lubbock, Texas.2 Itawamba County Agricultural High School in Fulton, Mississippi.3 Wesson Attendance Center in Jackson, Mississippi.4 Ponce de Leon High School in Ponce de Leon, Florida.5 At first glimpse, these schools seem to have one clear thing in common: they are all public schools situated in the Deep South, in the "reddest" portions of mostly "red states." Looking more closely, however, these schools all have one more thing in common: lesbian, gay, bisexual, transgender, queer, and allied-identified (LGBTQA) students are starting to emerge from the closets, even in these schools' traditionally conservative southern towns.6 With them, LGBTQA students are bringing new issues that the schools have never had to face before, including campaigns to start GSAs (gay-straight alliances);7 same-sex prom dates;8 gender-variant students in student yearbook photos;9 and a proliferation of pro-LGBTQA speech on campus.10

In all of these new situations, the administrations in the abovementioned schools acted quickly to suppress or limit the LGBTQA students' speech by refusing to recognize GSAs as student groups;" preventing openly gay students with same-sex dates from buying prom tickets;12 removing the photo of a tuxedo-clad lesbian from the yearbook;13 and even suspending students for openly supporting gay rights.14 All of these actions in turn give rise to First Amendment concerns-concerns particularly implicated in the seminal students' First Amendment speech case Tinker v. Des Moines Independent Community School District, which established that schools could not suppress political student speech, even if it might be controversial, so long as the speech did not cause substantial disruption.15 In the years since Tinker, the Supreme Court has created certain exceptions to the expansive First Amendment rights initially granted to public school students in Tinker.16 As more and more students have started coming out in high school (or even at younger ages), new First Amendment questions have arisen. In the case of LGBTQA-related speech, the case law is extremely fuzzy. Does Tinker apply? Does one of the exceptions to Tinker apply? Are these types of student-related speech entirely new and unique, requiring yet another legal standard from Tinker and its "exception" progeny?

In Part I, I will go into the background of student First Amendment speech case law generally, starting with Tinker and highlighting some of the exceptions to Tinker that have necessarily emerged as new students' speech cases make their way to the Supreme Court. …