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Published in Print: January 5, 2005, as T-Shirts on Gay Issues Spur Lawsuits

T-Shirts on Gay Issues Spur Lawsuits

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When Brad E. Mathewson enrolled in a Missouri high school last fall, he saw no reason to keep his sexual orientation in the closet. School officials, though, said that was just where his gay-pride T-shirts belonged.

Halfway across the country in Southern California, Tyler Chase Harper also got in trouble for wearing T-shirts about gays. An evangelical Christian who views homosexuality as a sin, he was told that his anti-gay T-shirts had no place at his public high school.

Despite their dueling viewpoints, Mr. Mathewson and Mr. Harper both thought they had every right to wear their T-shirts. And when administrators tried to censor them, both took their complaints to court.

Young people have long sported T-shirts that schools wish they’d leave at home. Legal fights have been waged in recent years, for example, over shirts about guns, abortion, the Confederate battle flag, and the war in Iraq.

But at a time when gay rights remains a divisive and unsettled issue nationally, a recent spate of disputes over T-shirts on the subject has presented educators with particularly vexing problems. Besides the Missouri and California cases, disputes over such shirts have cropped up in Minnesota, New York state, North Carolina, Ohio, and Utah, among other places.

A student shows his T-shirt against homosexuality
Poway, Calif., student Tyler Chase Harper shows his T-shirt against homosexuality.
—Courtesy of Alliance Defense Fund

“The messages on T-shirts are symbolic of the larger battle over how to treat homosexuality in a public school,” said Charles C. Haynes, a senior scholar at the First Amendment Center in Arlington, Va. “Like so many other times in our history, the public school has become a battleground for an important culture-war fight.”

The battle over gay rights— including the increasingly high-profile issue of same-sex marriage—has a strong religious component. That aspect further complicates matters for schools at a time when courts have sent conflicting messages on the extent of students’ rights to free speech and religious expression. And the debate is playing out amid mounting concern about harassment of students because of their sexual orientation, injecting emotional issues of student safety into the mix.

Little wonder, then, that once schools get caught up in the fray over T-shirts about gays, many are finding it hard to emerge unscathed.

Schools Seen as ‘Trapped’

One of several recent skirmishes in the T-shirt wars erupted in November in a rural area of southwestern Missouri, where Mr. Mathewson attended high school until dropping out last month.

Represented by the American Civil Liberties Union of Kansas and Western Missouri, he sued the Webb City school district after administrators ordered him to stop wearing T-shirts supporting gay rights, including one proclaiming, “I’m gay and I’m proud.”

“Webb City High School is trying to deny my rights by silencing me,” Mr. Mathewson, 16, said at a Nov. 23 news conference announcing the federal suit. Contending that he was discriminated against because of his sexual orientation, he alleged that students came to school with bumper stickers denouncing gay marriage, and that his shirts “weren’t even really noticed until the school drew attention to them.”

A lawyer for the 3,750-student Webb City district said school leaders took action against Mr. Mathewson only after other students complained about harassment from students wearing gay-pride shirts. And Superintendent Ronald L. Lankford said in an interview that high school students should not have to serve as a captive audience for societal arguments over homosexuality.

“If you have no governance of messages that a student might be wearing, then what happens when somebody comes in with a shirt saying ‘I hate gays,’ ” he said.

Meanwhile, in Southern California, Mr. Harper sued the 33,000-student Poway district last June after administrators there barred him from wearing a shirt with such hand-lettered messages as “Homosexuality is shameful.”

Mr. Harper, 16, wore his shirt to protest his schoolmates’ participation last April in the annual Day of Silence, a national event coordinated by the New York City-based Gay, Lesbian, and Straight Education Network in which students mark their support for gay rights by not talking for a day. One of his shirts featured the message, “Be ashamed: Our school embraced what God has condemned.”

“We have a school district that aggressively supported the pushing of the homosexual agenda within the public schools,” said Robert H. Tyler, a lawyer with the Scottsdale, Ariz.-based Alliance Defense Fund, who is representing Mr. Harper. “If they’re going to open it up to allow the homosexual agenda to be pushed in schools, then they have to allow the mainstream view to be expressed as well.”

In November, a judge in the U.S. District Court in San Diego denied Mr. Harper’s motion that the district be ordered to let him to wear his shirt. But the judge also held that the boy’s contention that the district had violated his First Amendment rights deserved to go forward. Appeals of that ruling are pending.

Jack M. Sleeth Jr., a lawyer representing the Poway district, said the school system is also being sued in state court by gay students who maintain that officials have failed to protect them from harassment.

“The high school is pretty much trapped between the forces of what is essentially a political fight,” Mr. Sleeth said. “They’re trying to do the right thing, and they’re not sure what the right thing is.”

Mixed Messages

School officials’ confusion is well founded, some legal experts say, given the mixed messages courts have given in disputes over students’ rights to free speech.

In 1969, the U.S. Supreme Court ruled in Tinker v. Des Moines Independent Community School District that school officials had violated students’ rights by punishing them for wearing black armbands to protest the Vietnam War. A school should not squelch students’ expression of a particular opinion, that landmark ruling held, “at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline.”

Since then, the high court has given schools the go-ahead for some types of censorship. Bethel School District v. Fraser, a 1986 ruling, established that school officials can discipline students for lewd or indecent speech, and the 1988 decision in Hazelwood School District v. Kuhlmeier authorized educators to supervise the content of official high school newspapers.

Against that backdrop, a recent guide titled “Dealing With Legal Matters Surrounding Students’ Sexual Orientation and Gender Identity” urged educators to tread lightly when faced with students wearing “pro-gay and anti-gay messages on T-shirts.”

“The fact that other students, teachers, or school administrators may disagree with, dislike, or object to a message conveyed on student clothing does not constitute sufficient disruption of the learning environment or interference with other students’ rights,” says the guide, which was produced by a consortium of national organizations, with leadership from the National School Boards Association.

On the other hand, the guide says, “[t]his does not mean that school officials must wait for disruption before they can act. But they must be able to demonstrate that their concerns are well founded.”

For educators, making on-the-spot judgment calls can be tricky, said Christopher B. Gilbert, a Houston lawyer who has represented school districts in student-speech cases.

“You are predicting that it’s going to cause a disruption, and the word ‘predicting’ implies that sometimes you’re going to get it wrong,” he said.

Mr. Gilbert’s advice is that administrators stop and think before telling a student not to wear something. “It’s way too easy to make spur-of-the- moment decisions and say that doesn’t need to be worn,” he said. “That’s where people get in trouble.”

Open Debate Urged

James D. Esseks, the litigation director for the ACLU Lesbian and Gay Rights Project, based in New York City, said schools should let students wear T-shirts with messages on different sides of the gay-rights debate, as long as they aren’t “badgering other kids about that message, or harassing people about that message, or raising that message in class during instructional time.”

Stephen M. Crampton, a lawyer who represented a Minnesota high school student who successfully sued his district in 2001 after being barred from wearing a “Straight Pride” T-shirt, essentially agrees. While criticizing schools for promoting what he called “the homosexual agenda,” he said students should be free to express their views even if their messages are perceived as negative attacks rather than as positive affirmations of beliefs.

“What are we left with when we can’t condemn certain behavior that we think is wrong?” said Mr. Crampton, the chief counsel for the American Family Association Center for Law & Policy, based in Tupelo, Miss.

Given the deep social divisions over homosexuality, Mr. Haynes of the First Amendment Center recommends that schools avoid censorship that drives students’ views on the subject underground, where speech can “really get ugly.” Instead, he argued, educators need “to give kids a way to talk about these issues responsibly,” in part because “sometimes these young people are really cutting a path in terms of thinking about how we’re going to deal with this issue.”

“Let the debate go on in public school as long as it doesn’t go into hate speech,” he said. “Let the voices be heard.”

PHOTO: Jason Hare, above, holds a sign to counter an anti-gay group in a November protest over a student’s T-shirt outside Webb City (Mo.) High School.
—Noppadol Paothong/The Joplin Globe
PHOTO: Brad Mathewson and his mother, Marion, show gay-pride shirt banned by his school.
—T. Rob Brown/The Joplin Globe

Vol. 24, Issue 16, Pages 1,16

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