U.S. District Judge Kevin H. Sharp presented an early Christmas present to Rebecca Young, a student at Richland High School in Giles County, Tennessee, awarding her a preliminary injunction against school authorities who had forbidden her from wearing a t-shirt with the slogan “Some People are Gay, Get Over It.” Young v. Giles County Board of Education, 2015 U.S. Dist. LEXIS 170695, 2015 WL 9413877 (M.D. Tennessee, Dec. 22, 2015).
Young showed up for the first day of school on August 5, 2015, wearing said t-shirt, which, according to her complaint, did not cause any disruptions. “No student or faculty member expressed to or otherwise interacted with Young in a manner manifesting any hostility, disapproval, or offense to the message on her shirt,” asserts her complaint. At the end of the truncated first day, while all the students were in the cafeteria, Principal Micah Landers summoned Young to the front of the room, which was “full of students,” and told her that she could not wear to school either that t-shirt or “any other shirt referencing LGBT rights.”
Young’s mother telephoned Landers later that day to question his direction, at which time he “confirmed that he had forbidden Rebecca from wearing the shirt or any other apparel which bore phrases, symbols, slogans or other indicia of or in support of the LGBT community.” Landers asserted that this was for Young’s protection against “harassment and bullying.” Young’s mother then called Phillip Wright, the Director of Schools for Giles County, who said “pro-LGBT messages are sexual in nature and, therefore, prohibited by the dress code.” Several weeks later, Young’s mother received a letter from the school district stating that the restriction was justified because Young “would have been bullied or harassed by students due to the nature of the shirt’s writing and the environment of the school.” The letter cited official dress code policies adopted by the school district, which stated: “Attire considered disruptive or risky to health or school/personal safety is not appropriate” and authorized the principal to administer “appropriate punishment” if a student came to school “attired in a manner which is likely to cause disruption or interference with the operation of the school.”
Young filed suit in November, represented by Mark J. Downton of Nashville and Thomas H. Castelli, ACLU (Nashville Office), suing the school board as well as Principal Landers and Wright in their individual and official capacities. The defendants’ response so far has been to ignore the lawsuit! According to the opinion by Judge Sharp on Young’s motion for a preliminary injunction, as of December 22 “Defendants have not responded to Plaintiff’s Motion or even entered an appearance in the case.”
Judge Sharp found it virtually an open-and-shut case for issuing a preliminary injunction against the defendants. “Plaintiff brings suit to stop her school from censoring her expression of her views on a topic of undeniable political importance,” he wrote. “The legal ground covering such issues is so well-trod that the Court finds itself surprised at the need to journey down this path. Nevertheless, the Court draws upon analogous precedent to reach the conclusion that Plaintiff will likely succeed on the merits of her claims,” the first test of whether the court should issue a preliminary injunction.
The Supreme Court set down the basic analysis of the First Amendment free speech claim of students in Tinker v. Des Moines, 393 U.S. 503 (1969), in which the court held that public school students enjoy First Amendment free speech rights to speak on matters of public concern, bound only by the school district’s legitimate interest in maintaining order and preventing disruption. “Schools need not tolerate student speech deemed inconsistent with the educational mission even if similar speech might be protected outside the school setting,” wrote Judge Sharp. “Yet neither may schools punish ‘silent, passive expressions of opinion, unaccompanied by any disorder or disturbance’ attributable to such expression, and ‘undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression,’” quoting from Tinker. In that case, the Supreme Court upheld the right of high school students to wear black armbands to protest the Vietnam War during the 1960s. Under Tinker, a school that wants to suppress student political speech must show that the “forbidden conduct would ‘materially and substantially interfere with the requirements of appropriate discipline in the operation of the school.’”
Sharp found that student speech on LGBT rights “is speech on a purely political topic, which falls clearly within the ambit of the First Amendment’s protection.” Since the defendants did not deign to file any opposition papers, the court relied solely on Young’s uncontested allegations in her complaint and papers in support of her motion. “Based on the evidence now before the Court,” wrote Sharp, the ban on Young’s t-shirt and similar apparel was not necessary to avoid “material and substantial interference with schoolwork or discipline.” “Plaintiff wore her shirt without any disruption on August 5, 2015. The only disruption came at the hands of Defendants themselves, when Principal Landers addressed Plaintiff in the cafeteria. Apart from this indelicate approach to a sensitive topic, Plaintiff’s shirt does not even seem to have been a blip on others’ radar.” The statements Landers and Wright made to justify their ban were nothing “other than conclusory statements to support their unfounded theory that speech on LGBT rights will disrupt the school environment,” which falls far short of the Tinker standard of justification.
Briefly addressing the other tests for preliminary injunctive relief, Sharp found that abridging Young’s free speech rights caused her irreparable harm, which was “actual and ongoing,” that granting the injunction would cause no harm to others and would be in the public interest. “Granting an injunction will vindicate the First Amendment rights of other students who are also currently subject to Defendants’ censorship,” he wrote. “Moreover, because Defendants have failed to present any evidence regarding the disruptive nature of LGBT-related expression, there is little reason to believe that granting the injunction will harm other students by negatively affecting their education.”
In his Order issued with the opinion, Sharp enjoined the defendants from “restraining, prohibiting, or suppressing the Plaintiff or any other student within the school district of Giles County, Tennessee, from expressing his or her support for the respect, equal treatment, and acceptance of LGBT people including but not limited to the shirt worn by Plaintiff Rebecca Young on August 5, 2015 and other apparel bearing the rainbow symbol or other symbols and phrases associated with LGBT rights; enforcing any policy that prohibits speech or expression in support of the respect, equal treatment, and acceptance of LGBT people; and taking retaliatory action against Plaintiff for bringing this lawsuit, or against any students for their past or future expressions of support for the respect, equal treatment, and acceptance of gays and lesbians.” If any school official takes any step to prevent Young or any other student from wearing a pro-LGBT shirt or button or other symbol, they could be held in contempt of court.
Sharp, who is Chief Judge in the Middle District of Tennessee, was appointed to the court in 2010 by President Obama.