As high school students begin to form political opinions and adapt a world view of their own, many are compelled to share their ideas – often choosing a T-shirt to convey the message.

Whether the sentiment is provoked by an incident at school or in direct response to another student’s literal fashion statement, a deluge of the dogmatic duds over the past few years has sparked a national debate – raising questions about the constitutionality of such messages and their place at school.

Many of these cases have wound up in litigation. At the crux of the issue is whether a student’s First Amendment rights be upheld at all costs or if certain statements should be censored, based on their potential to disrupt school proceedings or interfere with a student’s education.

Whether the statements are pro-gay or anti-war, the arguments used to defend a student’s right to display them are similarly perplexing – each case calling upon an array of legal precedents and razor thin interpretations of those precedents.

At Watauga High School in Boone, N.C., three students were given one-day suspensions for wearing T-shirts protesting a Day of Silence, in which students refrain from talking to show their solidarity with GLBT classmates.

One of the shirts read, “Homosexuality is sin, hell is real, Jesus is the answer! Shout for joy!”

The students were disciplined based on school policy prohibiting clothing that is “offensive to any race, religion or gender.”

Complaining that his First Amendment rights were violated, student Mark Austin sought legal representation from the anti-gay American Family Association (AFA). Though the principal said statements derogatory to Christians would be handled in the same manner, the district ultimately apologized to the students, wiping any mention of the suspensions from their record.

Two years ago, a New York teenager received a $30,000 settlement from the city after she was suspended for wearing a “Barbie is a lesbian” T-shirt to school. Openly lesbian student Natalie Young was pulled from class by her principal and ordered to change the shirt. When she refused, she was suspended for the day.

The girl’s teacher had reportedly laughed at her, calling the shirt “inappropriate.”

“Schools cannot legally engage in this type of selective, content-based suppression of speech,” her lawyer, Dan Perez, said at the time. “If she had worn a ‘Barbie supports the troops in the war in Iraq’ T-shirt, she would have been called a patriot.”

In 2001, Elliot Chambers, then a 16-year-old sophomore at Woodbury High School in Woodbury, Minn., donned a hooded “Straight Pride” sweatshirt to school. While some students showed their approval, others leered and spit at him, the student claimed. The next day, the principal told Chambers that the shirt was offensive to gay and lesbian students, and prohibited him from wearing it at school.

Chambers decried the simultaneous existence of a designated “safe zone” for GLBT students at the school, while his opposing message was censored.

The Mississippi-based American Family Association Center for Law and Policy filed a federal lawsuit on behalf of Chambers, claiming the sweatshirt made a positive statement about heterosexuality without denigrating GLBT students.

Dearborn, Mich., high school student Bretton Barber wore a T-shirt to school with President Bush’s picture and the words, “International Terrorist.” He also was told to take off his shirt or go home.

The American Civil Liberties Union charged that the Dearborn School District violated Barber’s free speech rights, asking a judge to allow him to wear the shirt while the suit was pending.

Citing the 1969 case of John Tinker, who was expelled from school for wearing a black armband to protest the Vietnam War, justices ruled that a person’s constitutional rights “are not shed at the school house gate.”

In October of 2003, a judge ruled in favor of Barber’s right to wear the anti-Bush shirt. In issuing the ruling, Judge Patrick Duggan said, “There is no evidence that [Barber’s] T-shirt created any disturbance or disruption,” further noting that “students benefit when school officials provide an environment where they can openly express diverging viewpoints and when they learn to tolerate the opinions of others.”

Last fall, 16-year-old Webb City, Mo., high school student Brad Mathewson filed suit against his school district after he was reprimanded for wearing T-shirts with pro-gay messages. The first shirt featured a pink triangle and the words “Make a difference!” A shirt worn a week later featured a rainbow symbol with the words, “I’m gay and I’m proud.” (It was widely reported that administrators had remained silent about anti-gay shirts and bumper stickers on campus.)

Showing their solidarity, 12 students came to school the next day wearing shirts in support of Mathewson.

“Unfortunately, Brad dropped out of school and we had to dismiss that lawsuit,” Dick Kurtenbach, executive director of the American Civil Liberties Union of Kansas and Western Missouri, told the Gay & Lesbian Times. “We’re in the process of exploring filing a second lawsuit representing the students who wore T-shirts in support of Brad and suffered the same sort of disciplinary action that Brad did.”

The issue, Kurtenbach said, is one of free speech and free exercise.

“To discipline students for wearing messages that the principal doesn’t agree with is a violation of that student’s First Amendment rights,” he said.

In its defense, the school district argued that allowing the pro-gay shirts to be worn could have caused a disruption of the educational process.

The disruption standard originated in a case before the U.S. Supreme Court called Hazelwood v. Kuhlmeier, in which a principal removed from a school newspaper articles on the impact of teen pregnancy that administrators believed might disrupt the educational process by identifying pregnant students and exposing teens to inappropriate sexual references.

In that instance, the court ruled that the principal acted reasonably and that a school is not required to tolerate speech “that is inconsistent with its basic educational mission, even though the government could not censor similar speech outside the school.”

Kurtenbach said the disruption argument is not sufficient to deny a student’s First Amendment rights.

“It’s not enough to allege that there may be a disruption caused by that expressive activity – whether it be a dress code or the distribution of some literature in school,” he said. “The disruption standard is becoming just a convenient way, we think, for schools to deny students their first amendment rights.”

Conversely, the Poway Unified School District is arguing in its defense that a disruption may have occurred if it had not intervened when a Christian student wore a shirt to school stating, “Homosexuality is shameful.”

With assistance from the Alliance Defense Fund, a Christian advocacy group, Poway High School student Tyler Chase Harper filed suit against the district last year after he was suspended for his actions.

Harper wore the T-shirt and its masking-tape scrawled message in response to a Day of Silence event. He was suspended after he refused a teacher’s request to remove the statement from his shirt.

Though Harper had previously worn a similar statement without comment from school administrators, Jack M. Sleeth, an attorney for the school district, said the anti-gay message could have led to a disruption of school proceedings.

According to official court documents, while Harper was seated in the principal’s office, a deputy sheriff told him his message was “inflammatory” and “could encourage uprising and violence against homosexuals.”

Sleeth argued in federal court that the school district has an obligation to make case-by-case determinations about free speech that may lead to a disruption, noting that “cloaking [the phrase] in the veil of religion” does not negate the offensiveness of the speech.

“We have a duty to protect our students from harassment which consists of pervasive and offensive misconduct – and it impacts speech,” Sleeth told the Gay & Lesbian Times.

The case is currently headed for the 9th Circuit Court of Appeals. Harper’s motion to appeal a judge’s earlier decision denying him an injunction was refused last week.

The school district’s policy is drawn from the Bane Act, Sleeth said, which prevents harassment based on sexual orientation in schools.

“The language is fairly vague,” Sleeth said. “I’m trying to shift the judge from considering our policy to considering the state statute, but he doesn’t want to go there.”

Last fall Harper’s claim that his right to equal protection was dismissed, because Harper’s attorneys could not prove that he belonged to a protected class, though First Amendment claims were upheld.

“There was simply no pleading and no possibility that you could plead that he was in a group that was treated differently, but there’s an arguable interference with his right to religion and right to speech,” Sleeth said. “He was told not to speak – and we need to balance that.”

Pending the outcome of the 9th Circuit, a motion will be filed for a summary judgment based on Harper’s freedom of speech and freedom of religion claims.

“What the judge said is he wanted some more facts,” Sleeth said. “So we then take some depositions from some students – if we can find them, if they’ll waive their right to privacy – and the questions are going to be how offended were you or would you have been if you had seen Chase’s T-shirt…. The problem I have is I don’t know if I have students who will come forward and sign a declaration and say that they were offended.”

The Poway Unified School District is simultaneously defending itself against suits brought forth by gay students who claim they were harassed at school.

“The district is being sued by the Christian Right and the gay students, both sides saying we did it wrong,” Sleeth said. “This school district is trapped between not doing enough and doing too much.”

Delores Jacobs, chief executive officer of The Center, said the organization’s position remains the same since Harper’s case surfaced, that he should have been permitted to wear the shirt.

“He has the right to wear the shirt, which is not to say that I think somebody should give him an award for wearing the shirt,” she said. “I think a right to do something doesn’t mean that it’s respectful or that it’s reasonable or that it’s good judgment.

“When I don’t like what somebody has to say … I can’t take away their right to say it without taking away my own right to speak out,” she continued. “I don’t think we can have it both ways.”

During a speech given while signing the Voting Rights Act of 1965, President Lyndon Johnson sited the following historic free speech precedent: “We must preserve the right of free speech and the right of free assembly. But the right of free speech does not carry with it, as has been said, the right to holler fire in a crowded theater.”

“There is some speech that is so unreasonable that the government can forbid it,” Sleeth said. “We’ve known forever that libel has been out there – the courts paying money to somebody for the damage to their reputation for somebody else’s speech. So speech has never been completely protected. It’s a balancing act, and the balancing act just became harder when the laws began to stop conduct that people thought was normal. That started happening in the ’60s. They thought it was normal to call people of a certain race a bad name back then.”

Jacobs said she doesn’t think Harper’s statement “crossed a line into screaming fire in a crowded theatre…. It wasn’t a defamatory word on it. It didn’t say, ‘Fags should burn in hell.’”

Dale Kelly Bankhead of the San Diego County chapter of the ACLU said the statement “Fags should burn in hell” would and should be constitutionally protected.

“Speech moves out of protected territory when it is directly responsible for inciting violence and that’s a very high bar,” Bankhead noted. “It has to be really, really specific, such as, ‘We hate these people, here’s a gun, there’s a member of that group, go shoot that person.’ Even generalized kinds of comments like, ‘We wish all of them would be wiped off the face of the earth,’ are protected.”

Bankhead conceded that in a school setting there are some considerations with respect to a student’s right to obtain an education in a proper environment.

“Unfortunately, we see that there’s not a real good understanding of the First Amendment,” she said. “That’s why there are other mechanisms for reviewing those decisions, both within the school system itself and then ultimately, if necessary, in the courts.

“There are some limitations,” Bankhead added. “Anything that can clearly be said to interfere with another student’s ability to be educated would not be protected…. The kinds of cases that have arisen under that standard are an individual college student, say, who has had racial epithets painted on her dorm room door regularly.”

Scott L. Haddock, a San Diego-based college professor and civil rights attorney, said many people “seem to have lost sight of the principal basis behind the First Amendment’s protection of free speech.

“The framers of the Constitution wanted there to be ‘government by discussion’ and viewed free expression as the foundation of American government, because it ensured discussion and debate among people on issues that were essential to the functioning of democracy,” Haddock said. “The Supreme Court has since referred to this type of speech as ‘political speech.’ A sequin tank top with the word ‘slut’ printed across it is hardly the type of speech the framers of the constitution intended to protect.”

However, Haddock said, given the context, Harper’s message is just the type of speech the framers of the Constitution sought to protect.

“We must remember that in a free marketplace of ideas, some ideas will be unpopular, some will be very offensive, and some will be completely absurd and false,” Haddock said. “Yet all of these ideas must be given an equal chance to be heard….

“Pure political speech is most protected, while speech that incites violence or which is obscene with no redeeming social value is least protected. Between those extremes exists a continuum whereby the validity of the speech is debated in controversy.”

Haddock said his desire to advocate in favor of free speech and to maintain a classroom environment conducive to learning often collides.

“If a student enters my classroom with the intent to disrupt or disturb my students, then I have a duty to fix the problem,” he said. “Fortunately, the issue is a relatively simple one for me, since I teach at a private college. The issue becomes much more complex when the forum in question is public.”

Bobbi Harwood, president of the San Diego County chapter of the Parents, Friends and Family of Lesbians and Gays (PFLAG), was incensed to see that San Diego Magazine had added Tyler Chase Harper to their list of “50 People To Watch in 2005.” The publication included Harper in an awards ceremony, honoring him with a trophy (Harwood’s letter of complaint appears in the current issue of San Diego Magazine).

Harwood said she feels public school teachers and administrators should be given leverage in determining what messages should be censored. Unlike Harper’s message, Harwood said shirts proclaiming “Gay pride,” or “Barbie is a lesbian,” are positive messages, and should be permitted.

“The primary goal is to learn and I think the school has a right to enforce anything that maintains a safe, peaceful environment for learning,” Harwood said. “He’s not an adult and I certainly believe that the school has a right to tell him what he can and cannot do on school grounds…. If my child was in that school and somebody sitting next to her wore a shirt like that, to me there is a clear and present danger I would feel for her. The school has to have a balance of being open to new ideas and free speech, but at the same time they have to create a place that’s free from things like hatred and harassment.”

Based on pending cases of anti-gay harassment in the Poway Unified School District, Harwood said administrators had reason to believe a disruption might occur.

“There’s already a history of that happening,” she said. “They already know the problem, so they certainly shouldn’t have let him do it.”

Steve Yuhas, a conservative, openly gay San Diego talk show host, said parents concerned about avoiding hurtful messages should consider enrolling their children in private school.

“I think children do better when they’re not distracted by any messages on shirts and that uniforms would solve the problem,” Yuhas said, echoing a view espoused by Bill Clinton in his 1996 re-election speech. “Until then, a school should not say that kids can endorse homosexuality by proudly wearing rainbows and calling themselves queer and turn around and demanding that kids who are opposed to homosexuality [embrace] that view….”

Yuhas said giving school administrators leverage to censor speech on a case-by-case bases could lead to a slippery slope.

“In areas where the arbiters are in favor of advocating one side or the other, they will not be an honest broker of the speech in question,” he said. “The only fair thing to do is to either disallow all shirts and adopt a uniform policy or to allow them all – there is no middle ground here because one man’s free speech and religious beliefs is another man’s feeling of oppression….”

Yuhas said he feels a strong double standard exists in the gay community when it comes to free speech and censorship.

“Gays have to be very careful before they start demanding that people’s speech be hindered, because it’s only going to be a matter of time before someone starts wanting to ban their speech.”

Haddock agreed that the gay community should be careful not to engage in hypocrisy.

“If we are going to protect a gay student’s right to wear a T-shirt containing the words ‘Gay pride,’ then we should also pay the same respect for another student’s right to wear a T-shirt containing the words ‘Straight pride,’” Haddock said. “The exception would be if the speech incited violence against a few minority gay and lesbian students at the school.”

If T-shirts bearing offensive messages are to be allowed at school in the name of free speech, how are teachers and administrators to handle these explosive situations?

Jeremy Kraut-Ordover, chair emeritus of the San Diego Chapter of the Gay, Lesbian and Straight Education Network, suggests using the opportunity to open a dialogue.

“It’s an opportunity to start talking about differences in our community that enrich everybody’s lives, and the fact that us not all being the same is an asset to the community at large,” Kraut-Ordover said. “It’s not an opportunity to single a student out, but it is an opportunity to show students what the other side is.

“In terms of [a message like] ‘Homosexuality is shameful,’ if it’s a social studies class, that’s an opportunity for an educator to talk about some of the historical implications of that statement. It’s one student who talks about it, but generally you’ve got other people in the background that either have questions that are going unanswered or feel completely opposite and are afraid to talk about it.

“It’s important to teach students to respect each other,” Kraut-Ordover stressed, “but it’s also important to also teach students that people have constitutional rights that don’t end when they walk into the school building.”