Freedom of speech in school settings: A fundamental right

A story from today’s headlines reveals that a 16-year-old student has been banned by his Ohio school district from wearing a shirt with the insignia of a fish and the slogan “Jesus is Not a Homophobe.” The student’s explanation for wearing the shirt is quite simple: “I’ve been bullied and called names and I wanted to wear this shirt to promote respect for all students, gay or straight.” The student has sued to reverse the school district’s ruling. The legal aspects of this troubling decision are fairly easily analyzed by reference to this website’s discussion of the duty to the duty to treat clients with due process. The present case offers a rather clear example of the denial of a student’s fundamental 1st Amendment right to free speech as well as his 14th Amendment-protected right to privacy. The student has a patently reasonable explanation for wearing the shirt: He is a gay student who wants to make a basic political assertion. Under the doctrine of substantive due process, discussed in this website’s section on the Constitution, in order to justify impinging on this right the school must demonstrate a compelling state reason to do so. No doubt the district will attempt to defend its decision that the shirt is disruptive, violates restrictions on shirts with sexual content, and for related reasons. A review of this website’s discussion of substantive due process reveals that it would seem apparent no such justification is present for banning the written expression contained on the shirt. Anyone out there have an opinion on this case? Please share it!

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