Florida Case Upholds Free Speech Rights of Students

In 1969 in Tinker vs. Des Moines Independent County School District, the Supreme Court stated that, “It can hardly be argued that students or teachers shed the constitutional rights to freedom of speech or expression at the schoolhouse gate.” Despite this clear statement of the law, schools have been trying to prevent students from expressing incorrect thoughts ever since. Frequently, this takes the form of mandatory political correctness. In one recent case, a school in suburban Chicago allowed a gay tolerance day but prohibited a student from wearing a shirt which said “Be Happy, Not Gay.” However, a recent court case from Florida shows that censorship of student speech is alive and well on both sides of the ideological divide.

The Gay Pride Crisis at Ponce De Leon High School

In Gillman vs. School Board for Holmes County, Florida, a crisis was triggered when a female student reported being harassed by other students for being lesbian. The school’s principal passed on the opportunity to teach a lesson about civility and respect and instead chastised the victim. He very firmly told her that it was not “right” to be lesbian and called her parents to inform them of their daughter’s sexual orientation. The principal also ordered the student to stay away from the students who had harassed her or else he would suspend her. The student left the principal’s office in tears.

The next day, the student was absent from school for reasons unrelated to the confrontation with the principal. However, a rumor circulated that the principal had suspended her for being gay. Students showed their support for their classmate by writing “GP” or “Gay Pride on their bodies, wearing t-shirts with messages supportive of gay rights and shouting “Gay Pride” in the hallways. Things took a turn for the stranger when the school announced a “morality assembly” to be held by a local clergyman. Students discussed the possibility of walking out of the assembly if the preacher denounced their classmate. However, when the preacher did not discuss issues related to homosexuality, no one walked out.

At this point, the principal decided that he had a problem and took action. According to the court’s opinion:

Following the assembly, (the principal) began investigating what had come to be known as the “Gay Pride” movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly, and their activities in relation to the movement. During those meetings, (the principal) instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.

The principal eventually suspended eleven students as punishment for their involvement in the “Gay Pride” movement. “As grounds for the suspensions, Davis explained that the students belonged to a “secret society” or “illegal organization” forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school.” He also told the mother of one of the students that he could have her daughter secretly shipped off to a Christian school or to the juvenile detention center and that “if there was a man in your house, your children were in church, you wouldn’t be having any of these gay issues.”

Litigation Ensues

At this point Heather Gillman, a heterosexual student whose gay cousin had been suspended approached the school board for permission to display rainbows, pink triangles and eleven slogans, including “I Support My Gay Friends” and "I Vote Pro-Gay." The school board ruled that none of these expressions could be allowed. According to the opinion, “The School Board justified its censorship on the ground that the expressions indicated membership in an ‘illegal organization’ prohibited by School Board policy and were disruptive of the educational process.” Ms. Gillman then filed suit against the School Board and the principal for violating her rights of free speech and political expression and for engaging in viewpoint-based discrimination.

The Role of the Court

In deciding the case, the judge did a good job of defining his role. He stated:

The issues of homosexuality and its social implications are topics that have engendered intense feelings and debate throughout this nation and its communities. My task in this case is not to judicially determine which side—supporters or opponents of gay rights—is correct. Nor is my proper role to mandate a social norm for Holmes County or its schools. Indeed, the students and citizens of Holmes County are qualified to make that decision themselves. Instead, my duty is to apply the Constitution and the law to the facts of this case.

Students’ Free Speech Rights

The Court has a good discussion on students’ free speech rights. This case fell within the category of pure student speech. Pure student speech can be subject to limitations. For example, a student could be punished for speech involving elaborate, graphic and explicit sexual metaphors and school officials could confiscate a banner advocating illegal drug use. Schools can also adopt reasonable, nondiscriminatory regulations as to the time, place and manner of student expressions and demonstrations.

The Supreme Court has held that student speech may only be censored when it would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school” or “collid[e] with the rights of others.” Under this test, students could not be prohibited from wearing black armbands protesting the Vietnam War based on the possibility of conflict between students of opposing viewpoints. The armbands were allowed because they were a “silent, passive expression of opinion, unaccompanied by any disorder or disturbance.” On the other hand, a school could ban “freedom buttons” advocating an end to segregation where students’ conduct in skipping classes, ignoring teachers, pinning buttons on other students without their permission and throwing buttons through school windows “constituted a complete breakdown in school discipline.”

With some understatement, the judge in this case stated that “(T)he facts in this case are extraordinary. The Holmes County School Board has imposed an outright ban on speech by students that is not vulgar, lewd, obscene, plainly offensive or violent, but which is pure, political, and expresses tolerance, acceptance, fairness, and support for not only a marginalized group, but more importantly, for a fellow student at Ponce de Leon.”

The Court rejected the contention that the School Board had to censor the student speech to avoid disruption at the school.

The vast majority of episodes involving the speech at issue were indistinguishable from the typical background noise of high school. Students testified that they whispered and passed notes in class, occasionally shouted “Gay Pride” in the hallways, write “GP” and “Gay Pride” on their bodies, created signs and posters supporting gay rights, circulated petitions, and debated and argued about gay rights. One student testified that students’ conversations about gay rights were even quieter than normal conversations because the students were interested in the topic. These activities, which the School Board contends were disruptive—whispering, note-passing, shouting in hallways, writing on bodies, drawing and creating signs, circulating petitions, and debating issues—occur on a daily basis at Ponce de Leon and are divorced from the speech as issue.

In other words, the speech about gay issues was no different from discussions of sports, music, television shows and other things which teenagers talk about. The only thing disruptive was that the school officials did not agree with what was being said. Thus, the Court found that the School Board had violated the free speech rights of the students.

Viewpoint Discrimination

The Court also found that the School Board had engaged in viewpoint discrimination. Under the Constitution, the government cannot ban speech based on its content. The Supreme Court has stated that “Discrimination against speech because of its message is presumed to be unconstitutional.”

In this case, the principal’s attempts to justify his actions were somewhat laughable. He claimed that allowing students to express a pro-gay message amounted to imposing a certain view on others who might find that view offensive. However, the principal had no problem telling students that homosexuality was wrong. Thus, it was acceptable for him to impose his views on others, but not the other way around.

The principal also claimed that any mention of homosexuality was sexually suggestive and would cause students to think about sexual acts. However, the principal did not have similar qualms about heterosexual speech. When a female student complained that a boy had dared another boy to offer her five dollars to “get into her pants,” he did not bother to investigate. He did not prohibit students from discussing heterosexual issues and would not prevent a boy from telling a girl that she was cute or that he wanted to date her. However, he would ban the slogan “I Vote Pro-Gay.” Similarly, the School banned rainbows, but not swastikas or the Confederate flag. Thus, it was fairly obvious that the Principal and the School Board set out to ban speech solely because they disagreed with its content.

The End Result

Because of their campaign to suppress student speech, the School Board was ordered to pay $1 to Heather Gillman (which was all that she had asked for) and to pay her attorneys $325,000. Thus, although Ms. Gillman did not benefit from the litigation, it was very costly to the School District. Money which could have been spent on education went to pay for the School Board to be educated on the meaning of the Constitution.

What Does It All Mean?

This was a case where a student courageously stood up for her right to free speech. The facts of this case are shocking. A principal who lifts up girls’ shirts to make sure that they are not writing slogans on their bodies, who calls parents to report their child’s sexual orientation and who threatens to have a child sent off to a Christian school against her will has crossed a line from being an educator to an enforcer. The School Board also failed in its duty when it approved censorship of rainbows, triangles and any expression showing sympathy for gay rights. No doubt the principal and the School Board felt that they were standing up for the values of their community. However, once you start down the road of censoring student speech to impose community values, you are just as likely to end up with political correctness as Christian morality. The ruling in this case which allowed students to express “Gay Pride” would also apply to protect a student who asserted “Straight Pride” (see Chambers v. Babbitt, 145 F. Supp.2d 1068 (D. Minn. 2001)) or “Be Happy, Not Gay” (see Nuxoll v. Indian Prarie School District, __ F.3d __ (7th Cir. 2008)).

The Judge in this case got it exactly right when he said that it was not his job to mandate a social norm for the community, but rather to apply the Constitution to the facts.