Tennessee School Can’t Censor Pro-Gay T-Shirt

Rebecca Young, with a friend, in the T-shirt that shook up school officials in Giles County, Tennessee. | FACEBOOK.COM

Rebecca Young, with a friend, in the T-shirt that shook up school officials in Giles County, Tennessee. | FACEBOOK.COM

US District Judge Kevin H. Sharp presented an early Christmas present to Rebecca “Becca” Young, a student at Richland High School in Giles County, Tennessee, awarding her a preliminary injunction December 22 against school authorities who had forbidden her from wearing a T-shirt with the slogan “Some People are Gay. Get Over It!”

Young showed up for the first day of school on August 5 of last year wearing the shirt, which, according to her complaint, filed by the American Civil Liberties Union of Tennessee, did not cause any disruptions.

“No student or faculty member expressed to or otherwise interacted with Young in a manner manifesting any hostility, disapproval, or offense to the message on her shirt,” Young’s complaint states. At the end of what was a short first day, while all the students were in the cafeteria, principal Micah Landers summoned Young to the front of the room, which was “full of students,” and told her she could not wear either that T-shirt or “any other shirt referencing LGBT rights” to school.

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When Young’s mother telephoned Landers later that day to ask about his order, he “confirmed that he had forbidden Rebecca from wearing the shirt or any other apparel which bore phrases, symbols, slogans, or other indicia of or in support of the LGBT community.” That, Landers asserted, would protect her from “harassment and bullying.”

Young’s mother then called Phillip Wright, the Giles County director for schools, who, offering a somewhat different explanation, said “pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code.”

Several weeks later, however, Young’s mother received a letter from the school district reverting to Lander’s original rationale in explaining that the restriction was justified because Young “would have been bullied or harassed by students due to the nature of the shirt’s writing and the environment of the school.” The letter cited the district’s official dress code policies, which state: “Attire considered disruptive or risky to health or school/ personal safety is not appropriate.” Students “attired in a manner which is likely to cause disruption or interference with the operation of the school” are subject to “appropriate punishment,” according to the guidelines.

Young filed suit in November, represented by Mark J. Downton of Nashville and Thomas H. Castelli, from the ACLU Nashville office, suing the school board as well as Landers and Wright in their individual and official capacities. The defendants’ response so far has been to ignore the lawsuit, Judge Sharp writing that as of December 22, “Defendants have not responded to Plaintiff’s Motion or even entered an appearance in the case.”

Sharp found it virtually an open-and-shut case for issuing a preliminary injunction against the defendants.

“Plaintiff brings suit to stop her school from censoring her expression of her views on a topic of undeniable political importance,” he wrote. “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path.” Sharp found ample precedent to conclude that “Plaintiff will likely succeed on the merits of her claims,” the first test of whether a court should issue a preliminary injunction.

The Supreme Court set down the basic analysis of First Amendment free speech claims by students in Tinker v. Des Moines, a 1969 case where it held that public school students enjoy free speech rights regarding matters of public concern, bound only by the school district’s legitimate interest in maintaining order and preventing disruption.

“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, and then quoting from the Tinker ruling, added, “Yet neither may schools punish ‘silent, passive expressions 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.’”

In the Tinker case, the Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam War. Under Tinker, a school that wants to suppress student political speech must show that the “forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”

Sharp found that student speech on LGBT rights “is speech on a purely political topic, which falls clearly within the ambit of the First Amendment’s protection.”

Since the defendants filed no opposition papers, the court relied solely on Young’s uncontested allegations in her complaint and papers in support of her motion.

“Based on the evidence now before the Court,” wrote Sharp, the ban on Young’s T-shirt and similar apparel was not necessary to avoid “material and substantial interference with schoolwork or discipline.”

Noting that Young’s shirt caused no disruption, the judge continued, “The only disruption came at the hands of Defendants themselves, when Principal Landers addressed Plaintiff in the cafeteria. Apart from this indelicate approach to a sensitive topic, Plaintiff’s shirt does not even seem to have been a blip on others’ radar.”

Landers and Wright justified their ban, Sharp found, on nothing “other than conclusory statements to support their unfounded theory that speech on LGBT rights will disrupt the school environment,” which falls far short of the Tinker standard of justification.

Briefly addressing the other factors used to consider a motion for preliminary injunctive relief, Sharp found that abridging Young’s free speech rights caused her irreparable harm, which was “actual and ongoing,” and that granting the injunction would cause no harm to others and would be in the public interest.

“Granting an injunction will vindicate the First Amendment rights of other students who are also currently subject to Defendants’ censorship,” he wrote.

Sharp enjoined the school district from “restraining, prohibiting, or suppressing the Plaintiff or any other student… from expressing his or her support for the respect, equal treatment, and acceptance of LGBT people.” He also barred officials from retaliating against Young for bringing the lawsuit or against any other students for expressing their support for gay rights.

Sharp, who is chief judge in the Middle District of Tennessee, was appointed to the court in 2010 by President Barack Obama.

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