Contributor, The Volokh Conspiracy

WSPA-TV (Addie Hampton) reports that a student at Chesnee High School near Spartanburg, S.C., was ordered to change her “Nobody knows I’m a lesbian” T-shirt. Apparently the student refused and was suspended as a result.

WSPA asked the school about this, and got “an email saying the shirt was ‘offensive and distracting’ with links to the dress code policy.” That policy says, “[C]lothing deemed distracting, revealing, overly suggestive or otherwise disruptive will not be permitted.”

The WSPA article also adds the following, though it’s not clear to me whether the quote from the girl’s mother is her report on what the administrator told her, or her inference about his motivations (I tried reaching her, but haven’t heard back yet):

[The student’s] mother, Barbara Popour, wants to know why her daughter’s shirt is considered offensive and who makes that call. That’s what she said she asked that administrator when she went to pick up her daughter last week.

“He does not like people in his school wearing anything that says anything about lesbians, gays, or bisexuals,” said Popour.

A few thoughts:

1. A “Nobody knows I’m a lesbian” T-shirt is just as constitutionally protected as, say, black armbands to protest the Vietnam War, or T-shirts or insignia expressing the owner’s Christianity or Judaism. Government-run K-12 schools can’t suppress speech just because the administrators find it offensive.

This First Amendment protection isn’t limited to political speech; it extends fully to religious speech, and to other speech, likely including purely personal expression. But in any event, “Nobody knows I’m a lesbian” has a political message, and not just a personal one: the message that there’s nothing wrong and nothing to be ashamed of in being a lesbian. (Indeed, I suspect that it is this message, expressed by many gays and lesbians who had identified themselves as such to their family, friends and acquaintances, that is likely responsible for many of the changes in attitudes toward gays and lesbians over the past few decades.)

2. If there is real evidence that the speech has been causing material disruption, or seems very likely to cause such disruption — such as fights — then the school might indeed properly restrict such speech. This might even allow a so-called “heckler’s veto,” through which a school can use the risk of a thuggish response to a message as a justification for restricting the message. Such a rationale for restricting speech is generally not accepted for speech on sidewalks or in parks, but some lower court judges have accepted it for speech in K-12 schools, based on the Tinker v. Des Moines Indep. School Dist. “material disruption” test (see here for more on the controversy over this).

But even if a heckler’s veto is allowed, the school has to have real evidence that there is indeed likely to be such a violent response, rather than just a concern that some people might be “distract[ed]” by it. After all, some people were distracted by the black armbands in Tinker v. Des Moines Indep. School Dist., and the court there reasoned that the armbands were constitutionally protected:

[I]n our system, undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression. Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom, or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk; and our history says that it is this sort of hazardous freedom — this kind of openness — that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society.

In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be 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. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained.

Nothing in the story or in the high school’s reported response suggests that there was any serious risk of such violence. (I tried calling the high school myself for a followup, but haven’t yet heard back.) As best I can tell, the student’s classmates were behaving fine. And if that’s so, then the school administration was behaving unconstitutionally.

3. Finally, even if there is some room here for a heckler’s veto, and there really was a risk of violent response to the T-shirt, I’d like to hear something about the school stepping in and trying to find and punish those who were violent or threatened violence — and certainly to speak out against such violence and such threats. Otherwise, if a school’s response to threats of violent retaliation over a student’s speech were aimed only at the student, and not at the threateners, what would that say about the school, and about what it is teaching its students?

If any readers know more about this story, and about whether this happened here, please let me know. Thanks to reader Arne Langsetmo for the pointer.

UPDATE: The school has backed down.