[author: Meghan Covert Russell]
A federal district court in Ohio has entered judgement in the case of Couch v. Wayne County Local School District, in favor of a high school student who wore a t-shirt that said "Jesus Is Not a Homophobe." The case is another example of the tension between student free speech rights and the ability of administrators to regulate students.
The student wore the shirt to school on the National Day of Silence, a day to draw attention to the effect of harassment and bullying of LGBT students. The principal told the student he could not wear the shirt because it promoted religion within the school. The student and his family sued the school district claiming the student right to wear the t-shirt was protected free speech. The district claimed the shirt was sexual in nature and inappropriate in the school setting.
The suit did not proceed to trial, but rather the court accepted an "agreed judgement" -- the parties agreed that the student was expressly permitted to wear the t-shirt to school whenever he wanted.
This school free speech case is reminiscent of the Supreme Court's 2007 case Morse v. Frederick, also known as the "Bong Hits 4 Jesus" case in which the Court upheld the discipline for a student's drug-related speech at a school-sponsored, off-campus event. However unlike Morse, the Ohio case did not relate to illegal drug use.
The traditional framework for analyzing an on-campus student free speech case comes from the 1969 Supreme Court case Tinker v. Des Moines Independent Community School District. In Tinker, students wore black armbands to protest the Vietnam War. Out of this case arose the test for determining if school officials can regulate student speech -- students may be discipline if their speech/conduct would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The Tinker Test is still the basis for analyzing student free speech, although the Supreme Court's subsequent decisions have added additional factors to consider, such as whether the speech is advocating illegal drug use (Morse), whether the speech is obscene (Bethel School District #43 v. Fraser), or whether the school has a legitimate pedagogical concern in regulating the speech (Hazelwood v. Kuhlmeier).
It appears that the student's speech in Couch did not warrant discipline under any of the Supreme Court frameworks noted above. There was no school disruption, it did not related to illegal drug use, it was not obscene and the school had no pedagogical concern. It is important to note that although student speech may be regulated in some instances, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."