Some pretty damning factual findings in this federal district court of opinion, issued after a bench trial. The court ultimately concluded that the school board violated the First Amendment, and that the speech at issue did not cause any substantial disruption nor was reasonably seen as likely to cause such disruption, a result that seems quite right under the facts and the relevant First Amendment cases (Tinker, Fraser, and Morse). Here are excerpts:
This case arose from events involving a homosexual student at Ponce de Leon High School on Friday, September 7, 2007. The twelfth-grade student, Jane Doe, reported to a teacher's aide that she had been taunted by a group of approximately five middle school students because of her sexual orientation. The middle school students allegedly told Jane that "dykes," such as herself, were "nasty," "gross," and "sick." The teacher's aide reported the incident to Principal David Davis.
At the end of the school day on the following Monday, September 10, 2007, Davis called Jane into his office. Davis asked Jane if she had told the teacher's aide that she identified herself as a lesbian. Jane answered, "Yes." Davis then asked, "Are you a lesbian?" Jane again answered, "Yes." Davis counseled Jane that it was not "right" to be homosexual. He then questioned Jane about whether her parents were aware of her sexual orientation. When Jane answered in the negative, Davis asked Jane for her parents' telephone number so that he could call them and inform them of her sexual orientation. Davis also instructed Jane to "stay away" from the middle school students or that he would suspend her. Jane left Davis's office in tears.
Jane was not present at school the following day because her sister had surgery. However, Davis's rebuke of Jane on the basis of her sexual orientation became known to the student body. A false rumor circulated that Jane was absent from school because Davis had suspended her for being homosexual. Numerous students expressed their support for Jane by writing "GP" or "Gay Pride" on their bodies, wearing t-shirts with messages supportive of gay rights, yelling "Gay Pride" in the hallways, circulating petitions to demonstrate support for gay rights, and creating signs with messages supporting homosexuals....
Davis began investigating what had come to be known as the "Gay Pride" movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing "Gay Pride" or "GP" on their arms and notebooks. He required students to wash "GP" or "Gay Pride" from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.
One of the students that Davis questioned was Gillman's cousin, who identifies as homosexual. Davis questioned Gillman's cousin about her sexual orientation. Davis stated that being gay was against the Bible and that it was not right. He expressed his hope that Gillman's cousin would not "go down the road" of being a homosexual. Davis then instructed her not to discuss her sexual orientation with any students at the school, not to say "Gay Pride" or write it on her body or school materials, and not to wear her rainbow-colored belt. Davis warned Gillman's cousin that if she violated his instructions, he would suspend her from school.
On Friday, September 21, 2007, and Monday, September 24, 2007, Davis suspended eleven students, including Gillman's cousin, for five school days each as punishment for their involvement in the "Gay Pride" movement. As grounds for the suspensions, Davis explained that the students belonged to a "secret society" or "illegal organization" forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school. Davis told the mother of a student whom he had suspended that he could secretly "send her [daughter] off to a private Christian school down in Tallahassee" or to the juvenile detention center and that "if there was a man in your house, your children were in church, you wouldn't be having any of these gay issues."
On Wednesday, September 26, 2007, Gillman wore a rainbow belt and a handmade shirt with the slogan "I Support Gays" to school as an expression of support for her cousin, her acceptance of homosexuals, and her belief that homosexuals should be afforded equal and fair treatment. On Thursday and Friday of that week, Gillman wore a rainbow belt to school to express the same beliefs. Gillman's conduct did not cause any disruption at the school or other negative reactions, and she was not reprimanded or punished.
In light of Davis's prohibition of messages relating to the support and acceptance of homosexuals, Gillman sought clarification from the School Board about its own position on the matter. On November 2, 2007, Gillman and her cousin (who had previously been suspended by Davis), through legal counsel, sent a letter to the attorney for the School Board. The letter requested guidance on which phrases and symbols students could display at school without being disciplined. Specifically, Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: "Equal, Not Special Rights," "Gay? Fine By Me," "Gay Pride" or "GP," "I Support My Gay Friends," "I Support Gays," "God Loves Me Just the Way I Am," "I'm Straight, But I Vote Pro- Gay," "I Support Equal Marriage Rights," "Pro-Gay Marriage," "Sexual Orientation is Not a Choice. Religion, However, Is."
By letter dated November 12, 2007, the School Board responded that none of the phrases, symbols, or images contained in the letter dated November 2, 2007, could be displayed by students at Ponce de Leon High School. The School Board justified its censorship on the ground that the expressions indicated membership in an "illegal organization" prohibited by School Board policy and were disruptive to the educational process. The letter cited students' plan to walk out of the school assembly on September 12, as an example of the disruptive effect of the messages....
Although the School Board conceded in its answers to interrogatories and at trial that the messages and symbols at issue are not vulgar, lewd, obscene, plainly offensive, or sexually suggestive, Davis attempted to justify the ban on speech, in part, by contending that rainbow stickers and the phrases "Equal, Not Special Rights," "Gay? Fine By Me," "Gay Pride" or "GP," "I Support My Gay Friends," "I Support Gays," "God Loves Me Just the Way I Am," "I'm Straight, But I Vote Pro-Gay," and "I Support Equal Marriage Rights," are sexually suggestive and immediately conjure images in children's minds of people engaging in sexual acts.
Notwithstanding his obvious mis-characterization of the speech as sexual in nature, other evidence clearly suggests that the ban on speech was not motivated by Davis's purported concerns about the sexual connotations of the speech. For example, during September 2007, a female student complained that a male student had dared another male student to offer her five dollars to "get in her pants." Davis testified that he agreed that the conversation between the students was "far more sexually explicit" than the banned speech. Yet, Davis conceded that he did not warn the students not to discuss "heterosexual issues" at Ponce de Leon, nor did he investigate or even speak to the male students about the female student's complaint. Davis also stated that he would not prohibit a male student from telling a female student that she is "cute" or that he wants to "date her," but that he would ban "I Vote Pro-Gay."
Nor were school officials concerned about students' expressions of other political views at Ponce de Leon. While rainbows are banned at Ponce de Leon, Superintendent Griffin testified that swastikas are not. While "Equal, Not Special Rights," and "God Loves Me Just the Way I Am" are prohibited, Davis and Superintendent Griffin stated that the Confederate flag is not. It is therefore apparent that the ban on speech at Ponce de Leon was motivated, not by school officials' angst about political expressions at school, but by the hostility of school officials toward the particular message sought to be conveyed....
There's a lot of bad behavior by the principal and the school board here, but the part that most struck me was that the principal "lifted the shirts of female students to verify that no such writings were present on their bodies."
I should also note that if the principal's argument is that pro-gay-rights speech is "sexually suggestive" and thus freely punishable by the school, then all speech that mentions homosexuality — for instance, arguments that the law ought not allow same-sex marriage, or that the military's "Don't Ask, Don't Tell" policy is justified — would be equally unprotected, and should be equally prohibited.