Gay Issues and Students' Freedom of Expression - Is There a Lawsuit in Your Future?
Essex, Nathan L., American Secondary Education
School leaders must recognize and respect the freedom of expression rights of students within reasonable limits, but they may restrict student expression that creates material and substantial disruption to the educational process. The challenge for school leaders is to achieve the proper balance between the rights of students and the needs of their schools. This article addresses the First Amendment rights of students to free expression involving gay issues in public schools. Two cases are presented in which school leaders face lawsuits for banning certain forms of student expression. The article ends with a discussion of a number of conditions that may invite a lawsuit if school leaders fail to take certain precautions involving a ban on student expression.
Students in public school enjoy many of the same constitutional rights as do adults. In fact, the U.S. Supreme Court held in the landmark Tinker v. Des Moines(1969) case that students possess freedom of expression rights that do not end at the school house door. Although students enjoy constitutional rights in public schools, these rights are not absolute or unlimited but are subject to reasonable restrictions by school leaders.
Two recent challenges have emerged regarding freedom of expression involving T-shirts worn in public schools that focus on gay issues. In both cases, students are alleging that their First Amendment freedom of expression rights have been violated based on a ban by school leaders on their wearing T-shirts-one in support of gay students and another that denounces gay students. Brad Mathewson, a Missouri high school student supporting gay rights decided to reveal his sexual orientation by wearing a T-shirt which stated, "I'm gay and I'm proud." The student alleged further that he was discriminated against based on his sexual orientation and that fellow students came to school with bumper stickers denouncing gay marriage without consequences by school officials. The district indicated that it took action against Mathewson only after students complained about harassment from students who wore gay pride T-shirts.
In the second lawsuit in southern California, Tyler Harper, a devout evangelical Christian student who viewed homosexuality as a sin, sued the district after school leaders barred him from wearing a T-shirt containing the message, "Homosexuality is shameful." He wore his T-shirt in protest of his classmates' participation in the National Day of Silence sponsored by a New York City based gay and lesbian organization in which students showed their support for gay rights by not talking for a day. Although the students held opposing views, both felt that they had a right under the First Amendment to express their views. When school leaders censored their T-shirts, they took their cases to court. School leaders in both cases appear to be caught in the middle of a highly charged emotional issue. How far can students go in exercising First Amendment rights involving gay issues in public schools? Can school leaders ban expressions they view as unacceptable? What constitutes reasonable restrictions of students' freedom of expression rights in public schools?
While there may not be concrete guidance by the courts in matters involving controversial expression by students in public schools, the following cases provide a sense of the court's posture in addressing some elements of free speech.
A landmark case involving freedom of expression by students was heard by the U.S. Supreme Court in Bethel v. Fraser (1986). The Court held that school officials are provided broad authority to discipline students for using offensive and lewd speech in public schools. This case arose when a student used an elaborate, graphic, and explicit sexual metaphor in a nominating speech involving a candidate during an assembly program. As a result, the student was punished by school officials for his speech. …