May “Jesus Is Not a Homophobe” T-Shirt Be Banned from Public High School as “Indecent” and “Sexual”?

That’s what the Wayne (Ohio) Local School District Board of Education apparently believes. Waynesville High School Principal Randy Gebhardt barred high school student Maverick Couch from wearing this T-shirt, and when his action was challenged, the school district lawyer responded:

It is the position of Wayne Local School District Board of Education that the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in a school setting.

The lawyer cited Bethel School Dist. No. 403 v. Fraser (1986) as support for the proposition that the speech may be banned. But Fraser, which involved sexual innuendo in a speech to a student assembly, hardly suggested that all speech on political and religious questions related to sexuality and sexual orientation could be banned from public high schools. (The other case that the lawyer cited, Pyle v. South Hadley School Committee (D. Mass. 1994), also involved vulgarity and sexual innuendo.)

Indeed, even Morse v. Frederick (2007) acknowledged that Fraser “should not be read to encompass any speech that could fit under some definition of ‘offensive.’ After all, much political and religious speech might be perceived as offensive to some.” This is precisely what’s at issue here: religious speech that is perceived as offensive to some. That the speech deals with how people should view gays and lesbians surely does not strip it of protection.

To be sure, even political speech could be restricted under Tinker v. Des Moines Indep. School Dist. (1969) if it seems likely to materially disrupt the work of the school, for instance by triggering fights and the like. But the school district doesn’t even claim that any such disruption has happened, or that there was evidence that it would be likely to happen. (At most, it says that there was “a highly charged atmosphere” in the school, a justification that’s insufficient under Tinker.)

So this strikes me as pretty clearly unconstitutional, at least absent some showing of material disruption caused or likely to be caused by the T-shirt. An application for a temporary restraining order, aimed at setting aside the principal’s decision, was filed yesterday in federal district court, and is now pending (Couch v. Wayne Local School Dist., No. 1:12-cv-00265-MRB). For more, see this Cincinnati Enquirer article. Thanks to Prof. Howard Friedman (Religion Clause) and Thomas Riebs for the pointer.

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