Confused courts? Students can wear shirt promoting gay lifestyle, just not one with American flag

by Gregory Tomlin |

(Rebecca Young/Facebook)Rebecca Young, sporting her pro-gay t-shirt, in this Facebook photo.

NEW YORK (Christian Examiner) – The American Civil Liberties Union (ACLU) is praising a court ruling that protects a student's right to wear a gay-themed t-shirt to school, heralding the case as one that advances a "conversation that is crucial to continued progress on LGBT rights."

In August, Rebecca Young, an 18-year-old senior at Richland High School in Giles County, Tenn., was told by her school principal she could not wear a gay lifestyle t-shirt with the message, "Some People Are Gay, Get Over It," to school – for her own protection.

In the lawsuit filed in federal court in November, Young alleged that Principal Micah Landers told her in front of a cafeteria full of students she could not wear the shirt or "any other shirt referencing LGBT rights to school because it made her a target for bullying and provoked other students."

James Esseks, director of the ACLU's LGBT and HIV Project, said Young called the ACLU of Tennessee for assistance and the organization promptly sued the school district and the principal. The school district did not contest the lawsuit.

"Predictably, a federal judge issued a preliminary ruling yesterday that the principal's censorship violates Rebecca's free speech rights," Esseks wrote on the ACLU's website.

In his ruling, Chief Judge Kevin H. Sharp wrote "the legal ground covering [these] issues is so well-trod that the Court finds itself surprised at the need to journey down this path."

"Schools need not tolerate student speech deemed inconsistent with the educational mission even if similar speech might be protected outside the school setting," Sharp wrote.

He added, however, that student expression on LGBT issues "is speech on a purely political topic, which falls clearly within the ambit of the First Amendment's protection. Yet neither may schools punish 'silent, passive expression of opinion, unaccompanied by any disorder or disturbance' attributable to such expression, and 'undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.'"

"Because Defendants have regulated student speech on a matter of political importance without making any showing whatsoever regarding their stated fear of the speech disrupting the school environment, the ban on speech in support of the LGBT community fails to pass constitutional muster," Sharp wrote.

Just what is "constitutional muster" on such free speech issues related to student dress is hardly clear, however. In fact, the various courts around the country have issued confusing and sometimes contradictory rulings.

In a case in 2011, a student near Chicago, Ill., was told by school administrators he could not wear a shirt that said, "Be Happy. Not Gay." because it was a direct assault on homosexual students at a school that valued diversity and gay rights. A federal court ruled that the district was wrong and the student could wear the shirt, because a school that "permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality."

In a similar vein in May 2012, a gay student in Ohio was told he would be required to remove a rainbow-colored "ichthys" (fish) t-shirt with the phrase "Jesus is not a homophobe" on it. After a lawsuit, the judge ruled the young man in the case, Maverick Couch, could not be prohibited from wearing the shirt deemed "sexual" in nature by the school.

But just what speech is acceptable appears to be a matter only the courts are allowed to decide. In 2010, the Supreme Court rejected a case in which a student was told he could not wear a "John Edwards for President" t-shirt to school. The 5th U.S. Circuit Court of Appeals upheld the August 2009 decision of the Waxahachie ISD to ban political t-shirts, claiming the policy was intended to eliminate distractions.

Also, in March 2015, the Supreme Court rejected a case originating in California in which several teenagers alleged their free speech rights were violated in 2010 when they were told to remove t-shirts emblazoned with the American flag or go home. The students chose to go home, but also sued the school district over the incident.

The school district fought the suit and alleged the shirts would provoke Hispanic students to violence on the Cinco de Mayo holiday. Mexicans celebrate May 5 as the day the Mexican army defeated French forces at the Battle of Puebla in 1862.

When the high court refused to take up the case, leaving a 2014 ruling from the 9th U.S. Circuit Court of Appeals in place, attorney William Becker told the Los Angeles Times that the court's refusal to act was a defeat for free speech that "opens the door for a school to suppress any viewpoints that are opposed by a band of vocal and violent bullies."