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Pro-LGBT statements OK on high school T-shirts, but not anti-LGBT statements

A principal at a Tennessee high school told a student in front of her peers that her shirt reading “Some People Are Gay, Get Over It” was not allowed.

Nor was “any other shirt referencing LGBT rights,” because such messages are “sexual,” according to a federal judge’s ruling last week that approved an injunction against the school’s enforcement of the ban.

Richland High School’s stated rationale for the ban was to protect Rebecca Young and other students wearing such shirts from “bullying or harassment” by their peers, though only her principal, Micah Landers, and Giles County director of schools, Phillip Wright, made a commotion over it.

Judge Kevin Sharp was surprised this case landed on his desk: “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path.” (Indeed, the school didn’t bother responding to the lawsuit.)

The Tinker standard from the Supreme Court doesn’t allow schools to invent a “disruption” out of thin air to justify a suppression, particularly when there’s no evidence that the school is also barring anti-LGBT messages on shirts, Sharp ruled.

Yet schools have done exactly that for t-shirt speech that is currently out of favor – Confederate flags and anti-LGBT messages – and courts have upheld those bans, as Frank LoMonte of the Student Press Law Center notes in a contextual analysis of Young v. Giles.

LoMonte cites several other court decisions in favor of pro-gay apparel and only one that upheld a student’s right to wear a shirt that’s mildly disapproving of homosexuality at most (“Be Happy, Not Gay”):

In a contrary view that appears based on the especially harsh language of the shirt, a federal appeals court sided with a California high school that banned a T-shirt reading, “I WILL NOT ACCEPT WHAT GOD HAS CONDEMNED… HOMOSEXUALITY IS SHAMEFUL,” which the judges classified as a “verbal assault” intruding on the rights of LGBT students to feel safe.

It’s worth looking at that 2006 opinion from the 9th Circuit (which issued another ruling this week squelching college students’ speech). Keep in mind the plaintiff was responding to a school-approved LGBT event:

In 2003, the School permitted a student group called the Gay-Straight Alliance to hold a “Day of Silence” at the School which, in the words of an Assistant Principal, is intended to “teach tolerance of others, particularly those of a different sexual orientation.” …

When [Tyler] Harper arrived at the front office [the day after the 2004 “Day of Silence”], he met Assistant Principal [Lynell] Antrim. She told Harper that the “Day of Silence” was “not about the school promoting homosexuality but rather it was a student activity trying to raise other students’ awareness regarding tolerance in their judgement [sic] of others.” Antrim believed that Harper’s shirt “was inflammatory under the circumstances and could cause disruption in the educational setting.”

An assistant principal who went to Bible studies led by Harper’s father tried to convince the student to “express himself in a more positive way” and “consider alternatives that would be more positive and non-confrontational” – an explicit appeal from a position of authority (not just scholastic, but religious) to censor Harper’s convictions on homosexuality.

The lesson to students whose views have fallen out of favor with mainstream culture is clear: Silence yourself or you will be punished and courts will uphold discrimination against you, while your opposing peers can spread their message all they want.

Read the Tennessee ruling and the SPLC analysis.

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