When Brad E. Mathewson enrolled in a Missouri high school last fall, he saw no reason to keep his sexual orientation in the closet. School officials, though, said that was just where his gay-pride T-shirts belonged.
Halfway across the country in Southern California, Tyler Chase Harper also got in trouble for wearing T-shirts about gays. An evangelical Christian who views homosexuality as a sin, he was told that his anti-gay T-shirts had no place at his public high school.
Despite their dueling viewpoints, Mr. Mathewson and Mr. Harper both thought they had every right to wear their T-shirts. And when administrators tried to censor them, both took their complaints to court.
Young people have long sported T-shirts that schools wish they鈥檇 leave at home. Legal fights have been waged in recent years, for example, over shirts about guns, abortion, the Confederate battle flag, and the war in Iraq.
But at a time when gay rights remains a divisive and unsettled issue nationally, a recent spate of disputes over T-shirts on the subject has presented educators with particularly vexing problems. Besides the Missouri and California cases, disputes over such shirts have cropped up in Minnesota, New York state, North Carolina, Ohio, and Utah, among other places.
鈥淭he messages on T-shirts are symbolic of the larger battle over how to treat homosexuality in a public school,鈥� said Charles C. Haynes, a senior scholar at the First Amendment Center in Arlington, Va. 鈥淟ike so many other times in our history, the public school has become a battleground for an important culture-war fight.鈥�
The battle over gay rights鈥� including the increasingly high-profile issue of same-sex marriage鈥攈as a strong religious component. That aspect further complicates matters for schools at a time when courts have sent conflicting messages on the extent of students鈥� rights to free speech and religious expression. And the debate is playing out amid mounting concern about harassment of students because of their sexual orientation, injecting emotional issues of student safety into the mix.
Little wonder, then, that once schools get caught up in the fray over T-shirts about gays, many are finding it hard to emerge unscathed.
Schools Seen as 鈥楾rapped鈥�
One of several recent skirmishes in the T-shirt wars erupted in November in a rural area of southwestern Missouri, where Mr. Mathewson attended high school until dropping out last month.
Represented by the American Civil Liberties Union of Kansas and Western Missouri, he sued the Webb City school district after administrators ordered him to stop wearing T-shirts supporting gay rights, including one proclaiming, 鈥淚鈥檓 gay and I鈥檓 proud.鈥�
鈥淲ebb City High School is trying to deny my rights by silencing me,鈥� Mr. Mathewson, 16, said at a Nov. 23 news conference announcing the federal suit. Contending that he was discriminated against because of his sexual orientation, he alleged that students came to school with bumper stickers denouncing gay marriage, and that his shirts 鈥渨eren鈥檛 even really noticed until the school drew attention to them.鈥�
A lawyer for the 3,750-student Webb City district said school leaders took action against Mr. Mathewson only after other students complained about harassment from students wearing gay-pride shirts. And Superintendent Ronald L. Lankford said in an interview that high school students should not have to serve as a captive audience for societal arguments over homosexuality.
鈥淚f you have no governance of messages that a student might be wearing, then what happens when somebody comes in with a shirt saying 鈥業 hate gays,鈥� 鈥� he said.
Meanwhile, in Southern California, Mr. Harper sued the 33,000-student Poway district last June after administrators there barred him from wearing a shirt with such hand-lettered messages as 鈥淗omosexuality is shameful.鈥�
Mr. Harper, 16, wore his shirt to protest his schoolmates鈥� participation last April in the annual Day of Silence, a national event coordinated by the New York City-based Gay, Lesbian, and Straight Education Network in which students mark their support for gay rights by not talking for a day. One of his shirts featured the message, 鈥淏e ashamed: Our school embraced what God has condemned.鈥�
鈥淲e have a school district that aggressively supported the pushing of the homosexual agenda within the public schools,鈥� said Robert H. Tyler, a lawyer with the Scottsdale, Ariz.-based Alliance Defense Fund, who is representing Mr. Harper. 鈥淚f they鈥檙e going to open it up to allow the homosexual agenda to be pushed in schools, then they have to allow the mainstream view to be expressed as well.鈥�
In November, a judge in the U.S. District Court in San Diego denied Mr. Harper鈥檚 motion that the district be ordered to let him to wear his shirt. But the judge also held that the boy鈥檚 contention that the district had violated his First Amendment rights deserved to go forward. Appeals of that ruling are pending.
Jack M. Sleeth Jr., a lawyer representing the Poway district, said the school system is also being sued in state court by gay students who maintain that officials have failed to protect them from harassment.
鈥淭he high school is pretty much trapped between the forces of what is essentially a political fight,鈥� Mr. Sleeth said. 鈥淭hey鈥檙e trying to do the right thing, and they鈥檙e not sure what the right thing is.鈥�
Mixed Messages
School officials鈥� confusion is well founded, some legal experts say, given the mixed messages courts have given in disputes over students鈥� rights to free speech.
In 1969, the U.S. Supreme Court ruled in Tinker v. Des Moines Independent Community School District that school officials had violated students鈥� rights by punishing them for wearing black armbands to protest the Vietnam War. A school should not squelch students鈥� expression of a particular opinion, that landmark ruling held, 鈥渁t least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline.鈥�
Since then, the high court has given schools the go-ahead for some types of censorship. Bethel School District v. Fraser, a 1986 ruling, established that school officials can discipline students for lewd or indecent speech, and the 1988 decision in Hazelwood School District v. Kuhlmeier authorized educators to supervise the content of official high school newspapers.
Against that backdrop, a recent guide titled 鈥淒ealing With Legal Matters Surrounding Students鈥� Sexual Orientation and Gender Identity鈥� urged educators to tread lightly when faced with students wearing 鈥減ro-gay and anti-gay messages on T-shirts.鈥�
鈥淭he fact that other students, teachers, or school administrators may disagree with, dislike, or object to a message conveyed on student clothing does not constitute sufficient disruption of the learning environment or interference with other students鈥� rights,鈥� says the guide, which was produced by a consortium of national organizations, with leadership from the National School Boards Association.
On the other hand, the guide says, 鈥淸t]his does not mean that school officials must wait for disruption before they can act. But they must be able to demonstrate that their concerns are well founded.鈥�
For educators, making on-the-spot judgment calls can be tricky, said Christopher B. Gilbert, a Houston lawyer who has represented school districts in student-speech cases.
鈥淵ou are predicting that it鈥檚 going to cause a disruption, and the word 鈥榩redicting鈥� implies that sometimes you鈥檙e going to get it wrong,鈥� he said.
Mr. Gilbert鈥檚 advice is that administrators stop and think before telling a student not to wear something. 鈥淚t鈥檚 way too easy to make spur-of-the- moment decisions and say that doesn鈥檛 need to be worn,鈥� he said. 鈥淭hat鈥檚 where people get in trouble.鈥�
Open Debate Urged
James D. Esseks, the litigation director for the ACLU Lesbian and Gay Rights Project, based in New York City, said schools should let students wear T-shirts with messages on different sides of the gay-rights debate, as long as they aren鈥檛 鈥渂adgering other kids about that message, or harassing people about that message, or raising that message in class during instructional time.鈥�
Stephen M. Crampton, a lawyer who represented a Minnesota high school student who successfully sued his district in 2001 after being barred from wearing a 鈥淪traight Pride鈥� T-shirt, essentially agrees. While criticizing schools for promoting what he called 鈥渢he homosexual agenda,鈥� he said students should be free to express their views even if their messages are perceived as negative attacks rather than as positive affirmations of beliefs.
鈥淲hat are we left with when we can鈥檛 condemn certain behavior that we think is wrong?鈥� said Mr. Crampton, the chief counsel for the American Family Association Center for Law & Policy, based in Tupelo, Miss.
Given the deep social divisions over homosexuality, Mr. Haynes of the First Amendment Center recommends that schools avoid censorship that drives students鈥� views on the subject underground, where speech can 鈥渞eally get ugly.鈥� Instead, he argued, educators need 鈥渢o give kids a way to talk about these issues responsibly,鈥� in part because 鈥渟ometimes these young people are really cutting a path in terms of thinking about how we鈥檙e going to deal with this issue.鈥�
鈥淟et the debate go on in public school as long as it doesn鈥檛 go into hate speech,鈥� he said. 鈥淟et the voices be heard.鈥�
