Rachel Bavaro, a high school student in Lynn, Massachusetts wore a T-shirt to school that read, "all the cool girls are lesbians." The student was sent to the Assistant Principal when a teacher noticed the shirt. She was told that she needed to cover up her shirt and not wear it to school again. Although the incident happened in January, due to Ms. Bavaro's follow through with a letter to her Mayor, more attention has recently been brought to the case. The Mayor rightly believed that Ms. Bavaro's rights had been violated and spoke up about it at a school committee meeting last week (huffingtonpost.com).
There are several recent cases that schools can refer to for guidance on these issues. Unfortunately, as is often the case, the administrator, Joseph O'Hagan, acted based on a personal value judgment rather than taking a more professional and informed response to the situation. Here is a summary of some similar cases that could offer parents, teachers, and administrators some guidelines to understanding the limits of student expression in school:
1) Nixon v. Northern Local School District (2005)
The t-shirt in question read: "Homosexuality is a sin! Islam is a lie! Abortion is murder!"
- School asked student to remove shirt or turn it inside out
- DECISION: ILLEGAL to limit student speech
- U.S. District Court for Southern District of Ohio granted an injunction prohibiting enforcement of the T-shirt ban
- School could not prove substantial disruption and the "invasion of rights of others" prong is so ill-defined as to be moot.
2) Harper v. Poway (2006)
The t-shirt read: "Be Ashamed. Our school embraced what god has condemned. Homosexuality is Shameful."
- DECISION: LEGAL to limit student speech
- 9th Circuit Court of Appeals wrote "Harper's wearing of his T-shirt 'collides with the rights of other students' in the most fundamental way" (p. 1178).
- Previous events at Poway High School included: several altercations surrounding the "Day of Silence" and a recent San Diego Superior Court decision to award damages to two former students ($175,000 & $125,000) because of the school's failure to protect them from peer sexual orientation harassment.
2) Zamecnik v. Indian Prairie School Dist. (2007)
The t-shirt read: "Be Happy, not gay."
- School required student to mark out the words "not gay"
- DECISION: LEGAL to limit student speech
- U.S. District Court in Seventh Circuit, Illinois decided that it will "continue to allow public schools to take into consideration pedagogical concerns and the school's basic educational mission when restricting student speech"
- based upon the school's pedagogical concerns that the district court found in the school's favor.
What is interesting about all three of these cases was the fact that the schools were trying to limit student expression that "collides with the rights of others" and "interfered with the pedagogical mission of the school"—both of these justifications are ethically and legally justifiable. In Rachel's case, her t-shirt was said to be "political" and "offensive to some people," which are not ethically or legally justifiable reasons to limit student speech.
Rachel and her Mayor have the law on their side in this case, and the ACLU of Massachusetts agrees. Schools must realize that they need to have very specific reasons to limit student expression and disagreeing with the viewpoint, or believing "this could have been disruptive" don't meet this test. As was demonstrated in the Harper v. Poway case, previous examples of substantial disruption to the learning environment around issues of sexual orientation and religion had been clearly documented. The disruption was clear. This lack of disruption was why the Nixon v. Northern case resulted in a different decision (that, and the narrow interpretation of "invasion of the rights of others" by the Ohio court).
The case at English High School does not have such evidence; therefore I do hope Rachel wins this case. It will send a clear message to schools that students have the right to express themselves— particularly when they are standing up for a marginalized student population who have a well-documented history of experiencing violence and discrimination at school. LGBT youth are incredibly vulnerable and brave, at-risk for self-harm, but full of strength and resilience as well. Rachel is an example of what is possible when youth feel confident and empowered to take a stand on issues that matter. This is a lesson that all schools should be responsible for teaching.
You can hear for yourself from Rachel in her YouTube video she posted to explain her actions:
Related posts: "Hate Speech in Schools: Is a Higher Standard Fair for Teachers?"