Gay Students Should Neither be Seen Nor Heard

I’ve long believed that we focus too much attention on the U.S. Supreme Court (SCOTUS). A whole lot of “law” is contested with little to no direct court involvement and little of it moves up the appellate court ladder. One of the things that interested me about book challenge research is that nearly all of it occurs outside of courts but often involves participants deploying legal language and norms. This has led me into some broader contests over student speech and a series of cases that sought to restrict gay student speech and organizing. When filed, these cases often were settled before a trial court came to some conclusion or were never appealed and thus are in a sense “invisible” to those who focus on high appellate courts. These battles illustrate how school officials contest the very notion of queer identity by seeking to control speech and visibility in schools. This bit of research led me to Young v. Giles County County Board of Education (2016).

Rebecca Young began her senior year of high school in August 2015. I imagine she was like most seniors, excited at the nearing end of high school while being nervous of what the future holds. She went about her day catching up with acquaintances and going to class. By all accounts nothing of interest happened until the end of the half-day when Principal Micah Landers pulled Rebecca aside to talk about her clothing — she described it as a public reprimand, he said it was a quite respectful discussion. This, again, is likely a standard occurrence at high schools across the country as kids sometimes like to push boundaries, though we shouldn’t ignore the gendered nature of most dress code enforcement. Rebecca’s offense was wearing a shirt with the slogan “Some People Are Gay, Get Over It.” It contained nothing else. Landers informed Rebecca that she would not be permitted to wear the shirt again or any other clothing with symbols or phrases in support of the LGBT community. When her mother called to inquire about this, he repeated this ban to her. The Director of Schools also supported Landers when questioned. This shirt was simply too much for the Richland High School environment.

Here’s one example of such a shirt. Available here.

As the shirt contained nothing lewd, indecent, or promoting illegal conduct, the law that governs is Tinker v. Des Moines (1969). There, SCOTUS reversed the suspensions of three students who silently wore black armbands to protest the Vietnam War. SCOTUS noted that “[i]t can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” After all, a public school is still an organ of the government and the purpose of constitutional rights is to restrain government. Schools, however, are different environments that may require greater restrictions on speech than occurs in the outside world. SCOTUS held that a school may restrict expression where it is “able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The school may restrict expression where it “materially disrupts classwork or involves substantial disorder” to the school environment. If the kids in Tinker had taken to screaming anti-war slogans in class they could be punished but wearing a silent sign of protest presents no disruption other than voicing an unpopular view.

So what was the school’s defense in banning Rebecca’s shirt? That it violated the dress code requiring that “all students … exercise good taste with regard to their personal appearance. … Clothing and accessories bearing slogans that are about or suggestive of drugs, alcohol, sex, obscenities, or prove to be a disturbing influence shall not be allowed.” Often schools turn to the sex portion of such codes to ban queer-inclusive speech and Rebecca’s mother reported that the Director of Schools did raise this issue saying that “pro-LGBT messages are sexual in nature.” This disappeared from the justification once lawyers got involved and instead the school adhered to the disruption claim but with a bizarre angle: Rebecca’s shirt was disruptive because it would cause others to bully her. Landers stated in his affidavit “that the slogan on her t-shirt could cause some students to make hurtful or harassing comments and to start trouble.” The school introduced evidence that Rebecca had been harassed and bullied multiple times by students mocking her lesbianism and spreading rumors about her sex life. It had even worked with her and her mother to create a bullying protocol to protect her from harassment. The school’s position, thus, was that the shirt would cause others to bully her and such bullying was a disruption to the learning environment. From the limited file it appears that this was the true reason. The school had taken preventative measures to protect her and even Rebecca and her mother recalled Landers raising the bullying concern as reason for the removal.

This theory of disruption is both amazing and disturbing. The school’s argument is that by wearing a shirt affirming her identity, Rebecca is inviting students to bully her; that she is, in effect, asking for it. Even the District Court was amazed that this came to court: “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path.” The court noted that the only disruption whatsoever was Landers interrupting Rebecca’s day and that it was particularly difficult to accept the bullying rationale when only pro-LGBT statements were prohibited. The school continued to press this issue noting that at least two instances of anti-gay harassment of other students occurred a few months later and that “there was, and remains, clearly an issue and hostility toward gay, lesbian and transgender students within the Giles County Schools.” In a second opinion, the court gave this argument exactly the response it deserved: “Without even blinking at the irony of this tactic, Defendants assert that their previous inability to protect [Rebecca] from bullying now gives them free rein to restrict her self-expression. The Court declines to endorse a policy that punishes the victim for Defendant's’ institutional failures.” A preliminary injunction was issued meaning that Rebecca had a substantial likelihood of success. The case was ultimately settled when the school altered its policies about nine months after the lawsuit started.

The very idea that the school would make this argument is astounding. It is a statement that students should hide their basic identity out of fear. This was, and probably still is, the tactic that so many queer kids have had to adopt and for some it may work, they may manage to stay so heavily in the closet that peer bullying will be avoided. But the psychological and emotional costs of hiding who you are is enormous and contributes to the sense of isolation and abandonment that in turn, sadly, lead some queer youth to experience mental health issues, self-harm, and attempt suicide. The sad fact is that this obscure legal action may be largely invisible to the legal world but it certainly represents a common pattern where queer students are told to hide who they by removing shirts, buttons, or other items that proclaim an unpopular identity. Many will have accepted this as the cost of just getting through school. Others will not have the resources or familial support necessary to find attorneys to challenge such abusive policies. This is why the rare challenge from people like Rebecca Young deserve more attention even if it did not amount to a “landmark” decision changing the future of gay rights.