Bravo to the ACLU for continuing its long practice of defending the free speech rights of those with whom they disagree completely. The ACLU has done great things in defending equal rights for LGBT people in this country but they also are defending the right of a student to wear an anti-gay t-shirt to school. The ACLU of Connecticut wrote a letter to the principal of a high school there who forbid a student from wearing a t-shit opposing the annual Day of Silence.
We are writing on behalf of Wolcott High School junior Seth Groody and his parents. He states that Wolcott High School recently sponsored a “Day of Silence,” designed, in his understanding, to promote tolerance for alternative lifestyles, including homosexuality. He wore to school that day a tee-shirt that depicted, on one side, a rainbow – the commonly-recognized symbol of gay rights – with a slash through it and, on the other, a male and female stick figure, holding hands, above the legend, “Excessive Speech Day.” His purpose in wearing the tee-shirt was to express his dislike for gay marriage and his opposition to the perceived message that was promulgated by the school. He was ordered to remove the shirt, and, under protest, he did so.
To the best of Seth’s knowledge and belief, Wolcott High School has no rule or policy that prohibits the wearing of expressive attire. His wearing of the shirt did not “materially or substantially interfere with … the operations of the school,” or cause “invasion of the rights of others,” as these terms have been defined in Tinker v. Des Moines
Independent Community School District and its numerous progeny.The school’s actions in requiring Seth to remove his tee-shirt, absent evidence of material and substantial interference, or invasion of the rights of others, violate the First Amendment to the United States Constitution and Article First, Sections 4 and 5, of the Constitution of Connecticut. The present matter is on all fours, not only with Tinker (in that Seth’s tee-shirt is indistinguishable from Mary Beth Tinker’s anti-war armband), but, even more saliently, with the recent unanimous Seventh Circuit decision in Zamecnik v. Indian Prairie School Dist. No. 204 (7th Cir. 2011). There, as here, a school – seemingly at the behest of a private gay rights group – sponsored a ”Day of Silence” in support of gay rights. The next day, the plaintiff, Zamecnik, and like-minded classmates
proclaimed a “Day of Truth,” and Zamecnik wore a tee-shirt similar to Seth Groody’s: on its front, it bore the motto, “My Day of Silence, Straight Alliance” (emphasis in original), and, on the back, another motto: “Be Happy, Not Gay.” A school official inked out the phrase “Not Gay,” claiming that it breached a school rule against various kinds of
“derogatory” comments.The Seventh Circuit pronounced the school official’s actions unconstitutional under Tinker, because the inked-out phrase was not derogatory, towards individuals, to the point of constituting unprotected “fighting words” – even allowing for a generous definition of the concept in the high school context.
The ACLU is right and the school should concede that they are right.
42 comments
Skip to comment form ↓
MikeMa
June 20, 2012 at 11:39 am (UTC -4) Link to this comment
Too bad the ACLU rarely gets credit for action like this, action in opposition to progressive ideals, in support of free speech. The howling right wing doesn’t like to recognize this very important effort by the ACLU on behalf of their bigoted, theocratic goals.
I wonder if any of the Alquist-haters in RI will thank the ACLU for this. They sure screamed in protest over the ACLU efforts to remove their unconstitutional prayer. Not holding my breath.
Jordan Genso
June 20, 2012 at 11:43 am (UTC -4) Link to this comment
Are there any conservative organizations that have the same level of integrity as the ACLU? Just curious.
dingojack
June 20, 2012 at 11:45 am (UTC -4) Link to this comment
Are all School Principals (and School Boards) in America completely ignorant of American law?
Perhaps there needs to be some remedial classes (after school, naturally).
@@
Dingo
Pierce R. Butler
June 20, 2012 at 11:46 am (UTC -4) Link to this comment
The present matter is on all fours, not only with Tinker …
What a curious choice of phrase.
lynxreign
June 20, 2012 at 11:48 am (UTC -4) Link to this comment
Yes, it is important that the ACLU defend everyone’s right to free speech. However, how do you reconcile that defense of free speech with attempts to reduce bullying, harrassment and torture of kids & teens at schools? Or do you not think that is something that can/should be done?
daved
June 20, 2012 at 11:53 am (UTC -4) Link to this comment
“On all fours” is a legal term, whose definition I found in a few seconds:
adj. a reference to a lawsuit in which all the legal issues are identical (or so close as to make no difference) to another case, particularly an appeals decision which is a precedent in deciding the suit before the court. Thus, an attorney will argue that the prior case of, for example, Steele v. Merritt is “on all fours” with the case before the court, and so the court must reach the same conclusion.
Gregory in Seattle
June 20, 2012 at 11:56 am (UTC -4) Link to this comment
I support the ACLU, but I think lynxreign #5 makes a good point. Given the inherent conflict in supporting the free expression of any kind of speech, and the efforts in schools to reducd bullying and harassment, which should be given precedence? Is a shirt that speaks against efforts to end bullying be permitted a type of bullying?
Artor
June 20, 2012 at 11:57 am (UTC -4) Link to this comment
@Lynxreign
I’m a little unclear on why you think protecting free speech is contradictory to fighting against bullying. Would you care to explain your position more clearly? I see no problem with upholding the 1st amendment and also preventing bullying/harassment/torture.
Ace of Sevens
June 20, 2012 at 12:01 pm (UTC -4) Link to this comment
When it comes to bullying, t-shirts are not the issue.
lynxreign
June 20, 2012 at 12:08 pm (UTC -4) Link to this comment
@Artor
If a group of students, say the football team or the cheerleaders or whatever clique is the “alpha” at the school, all wore shirts every day that said variants of “gay people are going to hell” or “gays will burn in hell” or even just “gays are just confused” or “be happy, not gay” or the like, you don’t think that constitutes an oppressive environment tantamount to bullying?
What if the shirts have racist statements? Or any statements that a majority population can use to intimidate a minority population that is a captive audience? Being told over and over “you are wrong to be who and what you are” can be very damaging, especially to young people.
Do you think an employer should have to tolerate this kind of inter-employee interaction? Can co-workers be as verbally abusive as they’d like? If not, why should students, who have less freedom be subjected to this. If so, then what protections do we really have against discrimination?
I am a member of the ACLU and I support their fight for our liberties, but I wonder what can be done to protect the defenseless in these situations.
lynxreign
June 20, 2012 at 12:09 pm (UTC -4) Link to this comment
@AceofSevens
If you think that, you don’t really understand bullying. They are certainly part of the environment of intimidation that the targeted students have to live with every day.
marcus
June 20, 2012 at 12:14 pm (UTC -4) Link to this comment
Gregory @7 In this country the 1st Amendment is always given preference (barring activities that “materially or substantially interfere with … the operations of the school” as mentioned) It is, after all, the law. Actual bullying, not just expressing a derogatory opinion of a particular group or idea, could be regulated under the aforementioned disruptive activities.
Ace of Sevens
June 20, 2012 at 12:15 pm (UTC -4) Link to this comment
@10. You are mixing the law with company policies. While few employers would put up with it, there’s no law saying they can’t let people wear such things to work. Students don’t have less freedom in this regard. Businesses can make any dress code they want almost, but since school is not voluntary, it’s different. See the court rulings Ed cited. Racist statements are also allowed for the same reasons.
If the only bullying I had to worry about when i was in high-school was t-shirts as opposed to physical violence, rumor mongering, threats, abusive language and the occasional public humiliation, I would have been pretty happy. Overdefining bullying to curb free speech just plays into the hands of the religious types that claim the anti-bullying rules are meant to shut down their religious expression.
dingojack
June 20, 2012 at 12:19 pm (UTC -4) Link to this comment
lynxreign (#10) – the last two examples given are not (IMHO) anything like bullying, unless having an opinion constitutes ‘bullying’ now.
Which is better autumn or spring?
Is the choice you expressed ipso facto bullying of those who express the contrary opinion?
Dingo
—–
PS: Does the ACLU hold lectures on the First Amendment for students and staff of schools? Perhaps they should.
lynxreign
June 20, 2012 at 12:22 pm (UTC -4) Link to this comment
@AceofSevens
I have no idea why you think those t-shirts would exist without all the other aspects of bullying you mention. They are part and parcel of all the things you mention and more in creating an abusive environment.
Religious types that you refer to will be claiming that no matter what you do to attempt to curb bullying, worrying about “playing into their hands” is self-censorship that helps them. Stand up for what’s right.
Students have less freedom, because as you state, school is not voluntary. They have less freedom of association, they can’t choose to avoid school, but an employee can switch jobs. I’m not talking about the freedom of the speaker, but the freedom of the target.
I believe you are wrong about there being no law stating such things can’t be worn to work. If an employer were to allow such a thing, a discrimination lawsuit would be a possible response.
lynxreign
June 20, 2012 at 12:25 pm (UTC -4) Link to this comment
@Dingojack
The last two are “opinions” that single out a minority group and tell them they are wrong to exist. It is nothing like “autumn or spring” it is like “should Jews exist”. Would a shirt that said “be happy not Christian” be acceptable? “Be happy, not Jewish?” “Be happy, not black?” Or how about “Be good, not Muslim”? “Be good, not Hispanic”? All opinions, right? Wrong.
Ace of Sevens
June 20, 2012 at 12:27 pm (UTC -4) Link to this comment
Yes, they are part of the same culture, but so what? High Times is part of the drug culture, but the government doesn’t and couldn’t ban it. I’m not saying seeing such a shirt wouldn’t be upsetting to gay kids, but it’s a tiny fraction of overall harm. Do you have any cases to cite about these shirts being illegal in the workplace?
Ace of Sevens
June 20, 2012 at 12:28 pm (UTC -4) Link to this comment
@16. yes. All of those would be acceptable from a legal standpoint.
dingojack
June 20, 2012 at 12:28 pm (UTC -4) Link to this comment
‘Be happy, not gay’ = telling homosexuals they should not exist?
Really?
Dingo
Ace of Sevens
June 20, 2012 at 12:29 pm (UTC -4) Link to this comment
Actually, “should Jews exist?” is questionable, because it could be interpreted as a threat. The rest are OK.
dingojack
June 20, 2012 at 12:31 pm (UTC -4) Link to this comment
Taking a trip in the way-back machine, how about “Black is beautiful‘?
Dingo
lynxreign
June 20, 2012 at 12:32 pm (UTC -4) Link to this comment
@AceofSevens
Do you know what happens when you add fractions?
marcus
June 20, 2012 at 12:37 pm (UTC -4) Link to this comment
lynxreign, I understand the point that you’re trying to make. The difference lies in the distinction between a person or group of people expressing a particular opinion on one hand and people acting with the intent to create an abusive or intimidating environment on the other. In many cases it might be a fine distinction, in those cases it would most likely require a judicial opinion to clarify the distinction. I believe intent would be a major component in the resulting decision.
frankniddy
June 20, 2012 at 12:46 pm (UTC -4) Link to this comment
I can almost guarantee that you will never see this story in an e-mail forward from your crazy aunt.
Ed Brayton
June 20, 2012 at 12:48 pm (UTC -4) Link to this comment
I think lynxreign’s question is a good one. This is not an easy issue and some difficult lines are going to have to be drawn. My demand as a staunch advocate of free speech is that the restrictions be drawn as narrowly as possible. This is a very prescient issue right now and it’s one that civil libertarians are going to have to reason together on in order to resolve the potential conflicts.
dingojack
June 20, 2012 at 12:52 pm (UTC -4) Link to this comment
Lynreign – you know what happens when you drop water ice on a hot griddle?
[Oh I'm sorry I thought this was the non sequitur thread]
@@
Dingo
Trebuchet
June 20, 2012 at 12:53 pm (UTC -4) Link to this comment
With apologies for derailing a good serious discussion, this:
is pretty much the greatest typo ever. Or at least of the day.
dingojack
June 20, 2012 at 12:54 pm (UTC -4) Link to this comment
oops that should have been ‘lynxreign‘, of course.
[Stupid keyboard (that's my story...)]
:D Dingo
frog
June 20, 2012 at 12:59 pm (UTC -4) Link to this comment
Debatable gray zones are why lawyers exist. If everything was always clear and easy to spot, we wouldn’t need specialists to talk through the ramifications of different actions.
If a bunch of kids in a high school get together and say, “Let’s all wear the same anti-gay shirt,” the problem isn’t the shirt, but the organized activity, which demonstrates intent to…something. Then it’s up to the principal/dean (or possibly a jury, if it comes to that) to decide if the intent is to intimidate gay people.
I’m sure relevant factors would include the specific wording on the shirts, where/when the shirts were worn, and what else was said or done while wearing them. There’s a dim line somewhere between “You have a right to offend people” and “but you don’t have a right to make an environment intolerable.”
One kid wearing an offensive shirt is offensive. A group of kids wearing an offensive shirt starts to look like a pack intending to intimidate.
dingojack
June 20, 2012 at 1:08 pm (UTC -4) Link to this comment
Frog – if banning wearing a white hoods would eliminate racism forever…
Dingo
lynxreign
June 20, 2012 at 1:15 pm (UTC -4) Link to this comment
@frog
I think that’s part of the problem. We only ever hear about these cases in isolation. “A student was told he couldn’t wear a shirt that said ‘Be Happy, Not Gay’ and the school is being told the student has the right to wear that shirt.” We don’t know if this student has a history of bullying gay kids or if it is an isolated incident. It could be he was pressured into wearing the shirt by parents or church, it could be a thing he decided on his own with no history of bullying, it could be a part of a pattern of harrassment or it could even be a shirt targeted at one particular other student that he’s had conflicts with in the past. The school may even be prevented from presenting this kind of evidence of a pattern because the person in question is a minor, but I’m not sure about that. Taking incidents in isolation won’t address what’s actually going on.
eric
June 20, 2012 at 1:15 pm (UTC -4) Link to this comment
I think frog’s got the right angle. We all know that speech can include subtext and hidden (or not so hidden) messages. Its a sometimes difficult – but necessary – part of the administration’s and the court’s job to distingish between sincere speech about some ideological issue and identically worded speech used as a cover for indimidation, coercion, ostracizing people, threats of force, etc…
An administrator or court has to look at the context surrounding why the shirt is worn and what the wearer is ‘really’ trying to do. Fortunately, the courts at least have a lot of practice at this. As merely one example, they get creationist legislators claiming purely secular motives for creationist laws all the time. The sort of analysis the courts do in those cases is exactly the sort of analysis, Lynxreign, they should do in the case of t-shirt speech vs. t-shirt bullying.
Given the similarity, it might even be reasonable to propose a Lemon-like test (but with only two prongs). There must be a credible non-bullying purpose for the speech, and the primary effect must not be bullying. Though I recognize that folk like Ed could legitimately criticize that idea as putting the burden of proof on the wrong side, maybe it would be okay in the limited case of schools, where attendence is mandatory.
cjcolucci
June 20, 2012 at 1:21 pm (UTC -4) Link to this comment
Here’s my prediction: we’re going to see more and more schools turn to school uniforms, largely to avoid these issues. You may get armband or pin issues, but I’m reasonably sure that a uniform school uniform policy would pass constitutional muster. No message clothing, period. No issue of how much skin to show. You wear the damned blue blazer or the plaid skirt and knee socks. (that last for the perverts out there)
This might have the useful effect of preventing fashion-based rivalries, cliques, and wasteful competition over clothing.
Gregory in Seattle
June 20, 2012 at 1:37 pm (UTC -4) Link to this comment
@cjcolucci #33 – This is one of the reasons why more and more public schools are turning to uniforms. And yes, reducing the competition over clothing is another big attraction, especially among lower-income families.
frog
June 20, 2012 at 3:10 pm (UTC -4) Link to this comment
@cjcolucci:
On a nuts-and-bolts level, this makes sense. My inner teenager rebels against the concept. (I say this as someone who attended a high school with a dress code. The ways my class pushed at the boundaries of the code forced them to go to uniforms for the class entering the year after I graduated.)
Sadly, bigots will find ways to get their bigotry across. Can’t wear a bigoted t-shirt? Paint the cover of your binder (or get a custom-made skin for your laptop) and carry your message around every single day.
Kids are staggeringly creative. It will be a game of administrative whack-a-mole as the students come up with new ways to flip the bird to authority just because.
eric
June 20, 2012 at 3:25 pm (UTC -4) Link to this comment
I switched between a no-uniform and uniform system four times growing up. Uniforms do mitigate some issues but, as frog says, teenagers will find a way to communicate their cliques. My personal experience is pretty outdated, but in my own case, uniforms seemed to do a good job of reducing poor/wealthy divisions, but didn’t do squat for nerd/jock, A student/C student types of divisions.
WMDKitty
June 20, 2012 at 6:23 pm (UTC -4) Link to this comment
“…forbid a student from wearing a t-shit opposing the annual Day of Silence.”
Best. Typo. EVAR.
marcus
June 20, 2012 at 7:05 pm (UTC -4) Link to this comment
cjcolucci @33 Thanks for the visual. ;0
vmanis1
June 20, 2012 at 8:36 pm (UTC -4) Link to this comment
Several points on matters that have been raised.
1. One must be very cautious about constitutional rights. Very few of them are as absolute as one might think. Burning crosses on public land in a district that has a lot of minority residents, publishing detailed plans on building a dirty nuclear weapon, or advocating robbing the First National Bank of New Farkington (`let’s blow up the vault this Saturday night’) are all quite properly considered to be kinds of speech that ought to be regulated. Indeed, if you consider rights to be absolute, you get crazy decisions like Citizen’s United. Ed said it best when he said that such conflict areas ought to be very narrowly construed, but there are areas of conflict.
2. Even though I’m not sure how I feel about the present case, I’m glad that the ACLU took on Mr Groody’s case. Proposals to restrict free speech ought to face the most stringent level of scrutiny.
3. If `Bong hits for Jesus’ is prohibited speech in U.S. schools, what exactly is the dividing line?
4, If I were a student at a school at which Mr Groody’s t-shirt is considered acceptable, I would be inclined to wear a t-shirt that read `Homophobia is a sickness that can be cured’, `Homophobes are pathetic losers’, or even `Homophobia: Gro(o)dy to the max’. Presumably those are acceptable too. Well, maybe not that last one, it’s a personal comment on Mr Groody.
5. Remember: in Michigan, `vagina’ is obscene.
The Swordfish, qui ne parle pas le français du mieux qu'il croit
June 20, 2012 at 10:35 pm (UTC -4) Link to this comment
Eesh. As someone who just
escapedgraduated from an Oregon high school with a particularly large cohort of smug self-satisfied bigots but a fairly strong anti-harassment policy, this sounds completely insane. It sounds, in fact, a lot like how Ron & Rand Paul justify their opposition the Civil Rights Act as a matter of libertarian principle. If we’re to grant that it’s acceptable for a bigot to wear a t-shit (best. typo. ever.) attacking gays, how far do we take that? How far does so-called free speech have to go before it’s considered harassment? What if it weren’t an anti-gay shirt, but an pro-Nazi or pro-KKK shirt? Would we tell Jews and African-Americans to suck it up “’coz free speech, dontchaknow” and “if you don’t like it, why don’t you wear an anti-Nazi or anti-KKK shirt?” Are those words still protected if they’re spoken instead of written? Maybe school anti-harassment policies themselves a violation of people’s right to free speech?Speaking as someone who nearly killed himself due to harassment in middle school (junior high for you non-Oregonians out there) and was left repressing my bisexuality and transgenderism for years because of it, public schools need to have strong anti-harassment policies. I’ve never even entertained the notion that that might be controversial, and I’m depressed to see that there are people ostensibly on my side of the political spectrum who seem to think that schools shouldn’t be able to combat this sort of harassment and bullying — and yes, that’s exactly what that asshole with the anti-gay t-shirt was doing. Schools need to protect people who are vulnerable to harassment, especially because the targets of that sort of harassment have no way to get away from it: they’re punished both legally and socially for failing to attend school.
I get that those of you supporting what the ACLU is doing want to be fair and high-minded on this, but you have to realize that the world is a nasty, messy place where high-minded principles and ideals can have horrible consequences. The ACLU is dead wrong on this, and I’m disgusted that an organization I’d previously thought the world of has fallen into the old liberal canard of “the rights of bigots are just as important as those oppressed minorities.”
marcus
June 21, 2012 at 12:24 am (UTC -4) Link to this comment
Swaordfish, you are absolutely right to hate that kind of bigotry and ignorance and the expressions thereof. Maybe in my zeal to defend the right I forgot to condemn the wrong. Free speech is and always has been the onerous and thankless task of defending the freedom of expression that you hate. That’s because the best cure for ignorance and bigotry is education and ridicule. So while the student in question has succeeded in asserting his right to wear his opinion on his t-shit (best typo ever) he has also demonstrated himself to be a really massive tool and unworthy the company of civilized human beings.
lynxreign
June 21, 2012 at 9:06 am (UTC -4) Link to this comment
@swordfish
This is actually one of the reasons I’m glad the ACLU is taking this case. It may help clarify the legalities of what schools can and cannot do with anti-harrassment policies. If the courts make it clear (and get it right) and schools pay attention, we’ll see fewer incidents where they’re haphazardly trying to control speech and may be able to institute stronger anti-harrassment policies because of it.
This is one of those strange areas where the ACLU could be on either side of the case. The problem is that the school is a governmental body restricting speech. For this to be legal, they have to carve out an exception to the First Amendment. The only way to do that is through the courts.
I believe this can be done, primarily because as you correctly noted, this IS a case of bullying and harrassment.
Everyone should get a good defense in court, no matter what they’re accused of, that’s the basis of our entire legal system and unfortunately it is failing much of the time. That includes having the ability to bring a court case when your rights are impinged or seem to be.
It could even come down to schools needing to have much clearer policies in place based on federal anti-discrimination laws.