March 2, 2011 11:06 pm

Court upholds student free speech rights

The Chicago Sun-Times reports that students at Nequa Valley High School will be allowed to wear t-shirts expressing their views on homosexuality:

Neuqua Valley High School students would be allowed to wear “Be Happy, Not Gay” T-shirts under a ruling Tuesday by the 7th U.S. Circuit Court of Appeals.

The court had rejected Indian Prairie School District 204’s argument that school officials could prohibit students from wearing the shirts to prevent some students from having their feelings hurt.

In its opinion, the court said a “school that permits advocacy of the rights of homosexual students cannot be allowed to stifle criticism of homosexuality.”

“The school argued (and still argues) that banning ‘Be Happy, Not Gay’ was just a matter of protecting the ‘rights’ of the students against whom derogatory comments are directed,” the court said. “But people in our society do not have a legal right to prevent criticism of their beliefs or even their way of life.”

When this case was previously before the appellate court in 2008, the ACLU of Illinois filed an amicus brief that urged the court to balance two competing and equally important legal rights when determining whether public high schools can limit student speech that disparages other people on the basis of race, religion, sexual orientation, and other protected identities. First, public high school students have the fundamental right to free speech, including the in-school expression of controversial and offensive messages. Second, students also have the fundamental right to freedom from discrimination on the basis of protected identities.

To reconcile these two fundamental rights, the ACLU urged the court to adopt a “harassment” standard, based on the standard developed in decades of anti-discrimination case law. Specifically, in-school expression by a public high school student is unprotected harassment only when it is reasonably forecast by school officials to be severe or pervasive enough to (1) significantly hinder a reasonable student in obtaining an education, or (2) significantly harm a reasonable student’s physical, mental, or emotional well-being. Application of this standard is fact-intensive and takes into account the age of the students among other factors. Under this test, some derogatory messages will be protected speech, and others will be unprotected harassment.

The ACLU concluded its amicus brief by applying this standard to the facts of this case. First, the school’s speech policy was unlawful on its face, because it broadly prohibited all speech that disparages protected identities, rather than carefully distinguishing protected speech from unprotected harassment. Second, the school in 2006 should have allowed two students on one day to wear the “be happy, not gay” t-shirts. The ACLU did not take a position regarding the students’ plans for future expression, because those plans were vague, which prevented application of the “harassment” standard.

In this “be happy not gay” controversy, the ACLU stood up for speech it vehemently disagrees with. We do so because the First Amendment will protect either everyone or no one. Notably, the First Amendment has played a critical role in ensuring that lesbian, gay, bisexual, and transgender students and their allies can form clubs that seek to promote understanding and tolerance of LGBT students, such as Gay Straight Alliances, and express themselves by, for example, identifying themselves as lesbian or gay or wearing a pro-tolerance T-shirt within public schools.

See You Have the Right to Be Yourself for more information on the rights of LGBT students and allies.