Di tomMaso and associates, llP
– Infringement on Student’s Free speech right
Statement of Facts
The Hellen Hunt Jackson public High School sponsored an event known as the “Day of Silence,” designed to promote awareness and tolerance for the LGBTQ+ community. Culver being an active member of the “Abiding Truth and Reconciliation Church,” was surprised to see students wearing shirts supporting Day of Silence, saying,” Gay is not ok. It is fabulous.”
Culver belongs to a church that seeks to promote traditional Christian family values. The church is very active in anti-gay lobbying and is on the radar for being listed as a hate group. Thus, in response to the Day of Silence, the plaintiff, Charity Culver, wore a shirt which stated, “Gay is not ok. Leviticus 18:22” on the front and two interlocking female symbols and two interlocking male symbols with a red circle and red dash through it on the back. A student noticed Culver’s shirt and confronted her about it. The two were involved in a verbal altercation, and before Culver could return to class, she was approached by principal Michaels. Principal Michael’s asserted that he believed her shirt might offend other students or create unnecessary tension. Culver responded by asserting that she was, “spreading the word of God.” After several exchanges, Michaels told Culver that she needed to cover a shirt or write up for violating the dress code. Ultimately, Culver was written up.
Charity Culver is suing Hellen Hunt Jackson High School, alleging her First Amendment right to freedom of speech had been violated when school officials disciplined her for wearing an anti-homosexual shirt. Culver contends that she wore it to “spread the word of God.” The issue in this case is whether the school could discipline a student for wearing this type of message on a shirt without violating her First Amendments rights.
The First Amendment prohibits the government from “abridging the freedom of speech.” CITE. Thus, state and local government entities—including school boards—must respect First Amendment protections to the same extent as the federal government. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943). The First Amendment Free Speech Clause protects verbal speech, printed speech, and expressive conduct, and symbolic speech. Free Speech Limitations, w-015-3053.
Students maintain free speech rights while at public school, including the right to expression within certain parameters, Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 506, 514 (1969). In Tinker,the Court held that schools may censor speech if that speech causes or is reasonably likely to cause a “substantial disruption” or if it interferes with school operations and other students’ rights. Id. at 503-06. School officials have some authority to
determine “what manner of speech in the classroom or in a school assembly is inappropriate.”Bethel Sch. Dist. No. 403 v. Fraser, 478 U.S. 675, 682-83 (1986).The court in Morseheld that school officials are permitted to limit student expressions, especially if the expression poses some danger to students or school officials. Id. at 2629
The First Amendment rights of high school students in the public-school setting are not the same as the First Amendment rights of adults in other settings. Morse v. Frederick, 551 U.S. 393, 394 (2007).Thus, there are limitations placed on high school students’ free speech that must be applied in light of the difference in settings.Id. at. 394-95.Three exceptions tor limitations to free speech rights of students. The three categories of speech that school officials are permitted to censor or restrict derive from the aftermath of Tinker. Vulgar, lewd speech, Fraser, 478 U.S. at 485, speech promoting illegal drug use, Morse v. Frederick, 551 U.S. 393, 403 (2007), and school-sponsored speech, Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 272–73 (1988).
Despite the exceptions mentioned above, students retain broad free speech rights. Tinker serves as a strong affirmation by the Supreme Court of the value of robust free speech rights for students in public school. In the present case, the court must consider two issues at hand, whether words or symbols on Culver’s shirt constitutes “speech” and whether school officials can regulate Culver’s speech without violating her First Amendment rights.
The First Amendment protects written words and symbolic speech. Cite. Thus, “symbols used for the purposes of expressing certain views” is within the Free Speech Clause of the First Amendment. CITE Tinker at 505.
In Tinker, the courts considered the question of whether the wearing of black armbands is a form of speech protected under the First Amendment. Id. at 504. The students protested the Vietnam War, by wearing black arm bands. Id. at 504. Because the students that wore armbands were protesting in silence, they did not “interrupt school activities nor sought to intrude in school affairs or lives of others.”Id. at 508, 514. Thus, the Court decided that the students’ actions did not rise to the level of a “substantial disruption of or interference of school operations and rights of others.” Id. at 508, 514.Their speech was symbolic. The speech was not disruptive, vulgar, lewd, obscene, defamatory, or threatening. Furthermore, the Court ruled that symbols are a form of “speech” protected under the First Amendment. Cite.
In Gillman v. Holmes Cty. Sch. Dist, Holmes County banned stickers, buttons, armbands, and t-shirts, which displayed symbols or slogans advocating the fair treatment of homosexuals. Gillman v. Holmes County Sch. Dist, Fla., 567 F. Supp. 2d 1359, 1361-62 (N.D. Fla. 2008). Heather Gillman, a public high school student, brought suit against the school board in Holmes
County, Florida, alleging violation of her First Amendment right to freedom of speech. Id. at 1364. The United States District Court held the ban was a violation of free speech. Id. at 1378-79.
Ms. Culver will argue thatthe symbols and written words on her shirt constitute a form of “speech” protected under the First Amendment. In Tinker, the students were expressing their beliefs by wearing black armbands to protest the Vietnam war.Id. at 504. Similarly, in the present case, in response to the Day of Silence, Culver wore a shirt that had “Gay is not ok. Leviticus 18:22” on the front and two female symbols interlocking and two male symbols interlocking with a red circle around it and dash right through it on the back. Culver contends that she was promoting the word of God by wearing the anti-homosexual shirt. Thus, the written words and symbols on Culver’s shirt serve as an expression of her beliefs.Such expression is also present in Culver’s case just as in Tinker. Furthermore, the written words and symbols on Culver’s shirt constitute “speech” protected under the First Amendment.
Ms. Culver, will also argue that in Gillan, the student’s free speech rights were violated when the school prohibited Gillman, from wearing slogans and symbols on her shirt in support of homosexuals. Id. at 1361-62. Similarly, Culver has the right to wear a shirt expressing her beliefs and should not be punished. Thus, applying the holding from Gillan to the present case, Culvers shirt is a form of speech protected under the First Amendment.
Hellen Hunt Jackson Public High School, on the other hand, will argue that the facts of the present case are distinguishable from Tinkerand Gillan. In Tinker, the student’s speech was not vulgar, disruptive, lewd, obscene, defamatory or threatening. Contrary to Culver’s anti-homosexual shirt, which unquestionably caused disorder and substantially interfered with school operations. Here, Culver and another student were involved in a verbal altercation due to Culver’s homophobic shirt. Additionally, Culver’s principal asserted that her shirt may offend other students or cause unnecessary tension. As stated in Tinker, speech that substantially disrupts or interferes with school operations does not constitute “speech” protected under the First Amendment. Id. at 514. Therefore, the written words and symbols on Culver’s shirt does not constitute “speech” protected under the First Amendment.
Hellen Hunt Jackson High School will also argue that unlike Gillan, where the student’s slogans and symbols were advocating for the rights of homosexuals, Culver’s shirt criticized homosexuality. Therefore, Culver’s shirt cannot be a form of “speech” protected under the First Amendment.
The First Amendment is applied to public schools in a way that “attempts to strike a balance between the free speech rights of students and the special need to maintain a safe, secure and effective learning environment.” CITE. There are three distinct areas of student speech identified by the court that can be regulated: (1) vulgar, lewd, obscene, and plainly offensive speech (Fraser) (2) school-sponsored speech (Hazelwood) (3) all other speech (Tinker). Thus, student speech which “intrudes on the rights of other students” or “collides with the rights of other students to be secure and let alone” may be restricted (Tinker).
The Tinker court held two reasonable circumstances which allow prohibition of student speech.Harper v. Poway Unified Sch. Dist., 445 F.3d 1166, 1170 (9th Cir. 2006) (citing Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, (1969)). First, schools may prohibit speech that would negatively affect the rights of other students. Id. at 1177. The second circumstance schools may prohibit speech that would result in substantial disruption of or material interference with school activities. Id. Following the standard set previously in Tinker the court held the school’s prohibition of the wearing of a demeaning T-shirt is constitutionally permissible under Tinker. Id.
In Harper v. Poway,the student was disciplined for wearing a T-shirt with religious messages that condemned homosexuality in response to the “Day of Silence.” CITE.Harper’s shirthad, “BE ASHAMED. OUR SCHOOL EMBRACED WHAT GOD HAS CONDEMNED” on the front and “HOMOSEXUALITY IS SHAMEFUL“ on the back.CITE.The court relied upon previous precedent set by Tinker. The court stated that public school students have a right to be free from verbal assaults “on the basis of a core identifying characteristic such as race, religion or sexual orientation” and that the wearing of a shirt with demeaning slogans and phrases interfered with the fundamental rights of students to have security and to be let alone.Harper v. Poway, 2006, p. 1178. In the courts view, Harper’s expression before the other students was “detrimental not only to their psychological health and well-being, but also to their educational development” (Harper v. Poway, 2006, p. 1179).
In Noxell ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, the court held that school officials were not authorized to censor a student wearing a T-shirt reading “Be Happy, Not Gay.” Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204, 523 F.3d 668, 676 (7th Cir. 2008). The court reasoned the school’s actions were based off unjustified speculation that the student’s shirt could provoke incidents of harassment toward homosexual students. Id. The court further reasoned that while the student’s speech violated a school rule forbidding derogatory comments towards sexual orientation, it was not the kind of speech that would “materially and substantially interfere” with school activities. Id. at 679.
In light of the cases mentioned above, Culver will base her argument on the impingement on the rights of others. In Harper, the student’s shirt interfered with the rights of other students to be let alone. CITE. Contrary to the present case, where Culver’s shirt was one of intolerance but it did not rise to the level of “imminent and substantial disruption.” Thus, even though Culver’s shirt might offend some people, it still must be protected, because her speech did not impinge on the rights of other students.
Culver will also argue that in Nuxoll, a student was not prohibited for wearing a “Be Happy. Not Gay” shirt. The court in Nuxoll, reasoned that even though the student’s speech violated a school rule, it was not the kind of speech that would “materially and substantially” interfere with school operations. Id. at 679. Applying the holding in Nuxoll, to the present case, the court will likely find that Culver’s shirt did not materially and substantially interfere with school operations. Culver has the right to wear a shirt that expresses her beliefs even if it might offend other students. Therefore, Culver’s First Amendment rights were violated because should not have been disciplined since her shirt did not impinge on the rights of other students.
Hellen Hunt Jackson high school will argue that, Harper is similar to the facts of the present case and therefore, the outcome should be the same. Following the standard previously set in Tinker, the court in Harper ruled that the school prohibiting Harper from wearing the anti-homosexual t-shirt was constitutionally permissible.Id.Furthermore, the demeaning of young gay and lesbian students in the school environment is detrimental not only to mental health but also their educational development. Id. at 1179. Thus, the school had a valid and lawful basis for prohibiting Harper’s T-shirt on the ground that his conduct impinged the rights of gay and lesbian students and interfered with their right to learn. Id. at 1179-80.Similarly, Hellen Hunt Jackson High School did not violate the student’s First Amendment rights in discipling the student who wore a shirt to school which expressed her opposition that homosexuality is a sin. Following the reasoning set forth in Harper, schools have a valid and legal basis in prohibiting speech which could negatively impact students. Furthermore, young gay and lesbian students have a right to be let alone from verbal assaults which would negatively affect their educational development while on school campus. Therefore, Culver’s shirt impinged on the rights of other students and thus, school officials can regulate this type of speech.
Similar to the reasoning set forth in Nuxoll, Culver’s shirt directly targets and attacks a particular class of people based on their sexual orientation. Additionally, Culver’s shirt represents negative or derogatory statements that is contrary to the mission that Hellen Hunt Jackson high schools Day of Silence is designed to promote. Therefore, Culver’s shirt can be regulated by school officials since it impinged on the rights of other students.
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