Bravo to the ACLU for continuing its long practice of defending the free speech rights of those with whom they disagree completely. The ACLU has done great things in defending equal rights for LGBT people in this country but they also are defending the right of a student to wear an anti-gay t-shirt to school. The ACLU of Connecticut wrote a letter to the principal of a high school there who forbid a student from wearing a t-shit opposing the annual Day of Silence.
We are writing on behalf of Wolcott High School junior Seth Groody and his parents. He states that Wolcott High School recently sponsored a “Day of Silence,” designed, in his understanding, to promote tolerance for alternative lifestyles, including homosexuality. He wore to school that day a tee-shirt that depicted, on one side, a rainbow – the commonly-recognized symbol of gay rights – with a slash through it and, on the other, a male and female stick figure, holding hands, above the legend, “Excessive Speech Day.” His purpose in wearing the tee-shirt was to express his dislike for gay marriage and his opposition to the perceived message that was promulgated by the school. He was ordered to remove the shirt, and, under protest, he did so.
To the best of Seth’s knowledge and belief, Wolcott High School has no rule or policy that prohibits the wearing of expressive attire. His wearing of the shirt did not “materially or substantially interfere with … the operations of the school,” or cause “invasion of the rights of others,” as these terms have been defined in Tinker v. Des Moines
Independent Community School District and its numerous progeny.
The school’s actions in requiring Seth to remove his tee-shirt, absent evidence of material and substantial interference, or invasion of the rights of others, violate the First Amendment to the United States Constitution and Article First, Sections 4 and 5, of the Constitution of Connecticut. The present matter is on all fours, not only with Tinker (in that Seth’s tee-shirt is indistinguishable from Mary Beth Tinker’s anti-war armband), but, even more saliently, with the recent unanimous Seventh Circuit decision in Zamecnik v. Indian Prairie School Dist. No. 204 (7th Cir. 2011). There, as here, a school – seemingly at the behest of a private gay rights group – sponsored a ”Day of Silence” in support of gay rights. The next day, the plaintiff, Zamecnik, and like-minded classmates
proclaimed a “Day of Truth,” and Zamecnik wore a tee-shirt similar to Seth Groody’s: on its front, it bore the motto, “My Day of Silence, Straight Alliance” (emphasis in original), and, on the back, another motto: “Be Happy, Not Gay.” A school official inked out the phrase “Not Gay,” claiming that it breached a school rule against various kinds of
The Seventh Circuit pronounced the school official’s actions unconstitutional under Tinker, because the inked-out phrase was not derogatory, towards individuals, to the point of constituting unprotected “fighting words” – even allowing for a generous definition of the concept in the high school context.
The ACLU is right and the school should concede that they are right.