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  • Is a “Jesus Is Not a Homophobe” T-Shirt Protected by the First Amendment?

    Maverick Couch, a gay high school student in southwest Ohio, is suing the Waynesville School District, alleging that school officials violated his First Amendment rights by not allowing him to wear his “Jesus Is Not a Homophobe” T-shirt to school. Can the school constitutionally prohibit Maverick from wearing the T-shirt to school?”  Before we look at the constitutional issues surrounding this case, let’s look at the sequence of events that led up to the lawsuit:

    • Maverick wears T-shirt to school for the first time: Maverick wore a “Jesus Is Not a Homophobe” T-shirt to school because he wanted to participate in the national “Day of Silence,” a day devoted to bringing attention to bullying and harassment of students because of their sexual orientation or gender identity.  Maverick was called into the principal’s office and Principal Gebhardt told Maverick to either remove the shirt or turn it inside out, because the “T-Shirt had to do with religion, religion and state have to be separate and the T-shirt was “disrupting the educational process.”” Maverick complied.
    • Maverick wears T-shirt to school for second time: The next day, Maverick wore the T-shirt to school and was summoned to Principal’s Gebhardt’s office. Principal Gebhardt told Maverick he must remove the shirt or he will face suspension. Maverick complied.
    • Maverick seeks permission to wear the T-shirt a third time: Later in the school year, Maverick approached Principal Gebhardt to seek permission to wear the T-shirt to school again. The Principal said he could not, because “some might find it offensive.”
    • Lambda Legal Defense gets involved: Maverick contacted Lambda Legal Defense, a national organization advocating for lesbians, gays, bisexuals and transgender people. Lambda Legal sent a letter to the school district in support of Maverick’s First Amendment right to wear the T-shirt in question to school.
    • School’s response to Lambda letter: District responded, stating that Principal Gebhardt was correct in prohibiting Maverick from wearing his “Jesus Is Not a Homophobe” T-shirt to school because “the message communicated by the student’s T-shirt was sexual in nature and therefore indecent and inappropriate in the school.”
    • Lawsuit filed: Lambda Legal Defense Fund filed suit on behalf of Maverick and his mother, Tonya Couch; alleging that school officials violated Maverick’s First Amendment rights by refusing to allow him to wear the T-shirt to school.
    • Status conference: A day after the lawsuit is filed, a status conference was held with Judge Barrett of the U.S. District Court of the Southern District of Ohio. The school district partially reversed its ban; Maverick can wear the T-Shirt to school one day a year.

    In support of Maverick being able to wear the T-shirt to school on any day he so chooses, Lambda alleged that the law is clear on this issue, if there is no evidence that the T-shirt causes a substantial disruption in the classroom; the student can wear the T-shirt to school. Furthermore, it is clearly established that the law doesn’t consider a student’s conduct or expression to be substantially disruptive just because other people don’t like the message. In support of Maverick being allowed to wear the T-shirt, the executive director of the Gay Lesbian & Straight Education Network has also publically stated that “schools should be places of learning and development and that includes a student’s right to express who they are and what they believe in.”

    The school district’s superintendent, Pat Dubbs, said that the principal considered the shirt a distraction and was proper in prohibiting the student from wearing the T-Shirt to school. “We’re in the business of education and our main concern is maintaining an environment that is conducive to education” says Dubbs.

    Lawyers for the Couches and the Waynesville School District plan to meet in coming weeks to reach a final resolution on whether the “Jesus Is Not a Homophobe” shirt may be worn on other days of the year. However, this isn’t the first time the issue of whether school officials can prohibit a student from wearing clothing with offensive messages to school has been brought to the public arena, and it certainly won’t be the last. If your institution has questions or concerns about this topic and you would like further information, please email Cynthia Augello at caugello@cullenanddykman.com or call her at 516.357.3753. A special thanks to Hayley Dryer, a third-year law student at Benjamin N. Cardozo School of Law, for helping with this post.