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In debates over homosexuality, schools should be both safe and free
Inside the First Amendment

By Charles C. Haynes
First Amendment Center senior scholar

For beleaguered school officials, summer brings a welcome break in the escalating culture war over homosexuality in public schools. No more T-shirts, no more books, no more lawyers’ dirty looks — at least until September.

But administrators would be foolish to take a vacation from the issue. In the school year that just ended, conflicts over sexual orientation in the curriculum, student clubs or speech codes broke out in record numbers across the nation. And next year promises more of the same.

If your school hasn’t had this fight yet, it will. That’s why it makes sense to head off the controversy by confronting these issues before a lawsuit is filed. As constitutional attorney Oliver Thomas puts it, the time to buy the fire truck is before the fire.

A good place to start would be to address the growing tension between claims of freedom of speech and religion on one side vs. concerns about harassment of gay and lesbian students on the other.

The clash between “freedom” and “safety” deepened in April when the 9th U.S. Circuit Court of Appeals ruled that a Poway, Calif., school was justified in barring a high school student from wearing a T-shirt that said, “Homosexuality is Shameful” on one side and “Be Ashamed, Our School Embraced What God Has Condemned” on the other.

In a 2-1 decision, the court held that wearing the shirt interfered with the rights of others, specifically the rights of gay and lesbian students to an education free from harassment or intimidation. If courts in other parts of the country follow this line of reasoning, this decision could have far-reaching implications for student rights in public schools.

Previous courts have looked at whether school officials could reasonably forecast that the student expression would cause “substantial disruption,” a standard set by the U.S. Supreme Court’s 1969 decision in Tinker v. Des Moines Independent Community School District. By focusing instead on whether the expression interfered with the “rights of others” (language also found in Tinker), the 9th Circuit has made it easier for school officials in its jurisdiction to regulate student religious or political speech.

Many conservative Christians were not pleased. A week after the decision, 13 Christian students were suspended from a Sacramento-area school for wearing T-shirts declaring: “Homosexuality is sin. Jesus can set you free.” During the same month, other schools in the region were also sending kids home who refused to remove shirts with similar messages.

The T-shirt rebellion is part of a growing nationwide response by religious conservatives to the “Day of Silence,” an event held at several thousand public schools each spring. The Gay, Lesbian, Straight Education Network (GLSEN), sponsors of the event, describe the day (during which students choose not to speak, but hand out cards) as an opportunity to call attention to the bullying and harassment of gay and lesbian students. But many conservatives view the event as “promotion of the homosexual agenda,” especially when school officials encourage it.

In recent years, the Alliance Defense Fund, a conservative legal coalition, has promoted what it calls a “Day of Truth” on the day after the “Day of Silence.” Students wear T-shirts with religious messages and hand out cards with the “truth” about homosexuality.

Not surprisingly, the back-to-back events feed the culture-war mentality of “us vs. them” and make civil dialogue almost impossible. That’s when lawyers and judges take over, leading to decisions like the one in the 9th Circuit that chip away at the rights of students to freedom of speech and free exercise of religion.

Dueling “days” and contentious lawsuits aren’t in anyone’s best interest. It’s time for people on all sides to move beyond the rainbow flags and T-shirt slogans — and find solutions that serve the common good.

Conservative Christians might start by acknowledging that many gay, lesbian and transgender students in public schools are frequently bullied and harassed. A recent survey by GLSEN showed that 80% of these students report verbal harassment and 42% report physical harassment. If students, educators, parents and religious leaders on all sides work together to create a safer learning environment, a Day of Silence would no longer be needed.

At the same time, gay-rights proponents should defend the free-speech rights of religious conservatives in public schools. That doesn’t mean anything goes. But Christian students should have the freedom to express their convictions about homosexuality or other issues in class discussions, religious clubs and elsewhere. In schools where an open and civil exchange of views is encouraged, a Day of Truth would no longer be necessary.

For everyone tired of the fight, here’s essential summer reading: “Public Schools and Sexual Orientation: A First Amendment framework for finding common ground.” Recently published by the First Amendment Center, the guide doesn’t attempt to give all the answers, but instead provides a roadmap for developing local policies that protect the rights of everyone. Best of all, the process recommended in the guide has been endorsed by two groups on either side of this debate: the Christian Educators Association International and GLSEN.

Can we win the peace? Yes, but only by reaffirming that public schools belong to all Americans. And only by insisting on schools that are both safe and free — places where all members of the school community commit to address religious and political differences with civility and respect.

A safe school is free of bullying and harassment. And a free school is safe for student speech even about issues that deeply divide us.

Charles C. Haynes is senior scholar at the First Amendment Center, 1101 Wilson Blvd., Arlington, Va. 22209. E-mail:


Unlikely alliance takes on school conflict

Conservative Christians, gay advocates join forces to create guidelines for how educators, parents, teachers should deal with any aspect of school life involving sexual orientation. 03.10.06

1st consensus guidelines offered for schools on sexual orientation
News release First Amendment framework suggested to help educators, parents, students find ‘common ground.’ 04.26.06

Evangelicals intensify calls for public-school pullout
Perceived hostility to religion in public schools fuels movement to home-schooling, private schools. 09.06.06

Court vacates 9th Circuit ruling against anti-gay T-shirt
By Tony Mauro In closely watched student-speech case, justices leave school policy in place but open to further litigation. 03.06.07

A moral battleground, a civil discourse
By Charles C. Haynes On 'Public Schools and Sexual Orientation: A First Amendment framework for finding common ground,' reprinted from USA TODAY. 03.20.06

Sexual orientation and public schools: all or nothing?
By Charles C. Haynes Administrators, parents can work past cultural standoff toward schools that are both safe and free for all students. 02.17.08

Public Schools and Sexual Orientation

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