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Free Speech and the Right to Disagree

By Dennis Byrne

If a high school gives students permission to openly express their support of homosexuality, then why shouldn't other students be allowed to voice their disapproval?

A federal court judge in Chicago might have to answer that question after a high school student in Naperville, IL, a suburb southwest of Chicago, filed suit charging that her civil rights were violated by school officials by not letting her wear a pro-heterosexual T-shirt last year.

Neuqua Valley High School's refusal to let Heidi Zamecnik, 17, wear a T-shirt saying "Be happy, not gay" on the back and "My day of silence, straight alliance" on the front was especially egregious because it came on the same day that the school permitted other students on the national "Day of Silence" to openly express their support of homosexuality.

The Day of Silence is an annual event held to "commemorate and protest anti-LGBT [lesbian, gay, bi-sexual and transgender] bullying, harassment and discrimination in schools. Students and teachers nationwide will observe the day [April 18] in silence to echo the silence that LGBT and ally students face everyday," according to its sponsor, the Gay, Lesbian & Straight Education Network.

Zamecnik, who is suing along with another student, got the idea of her T-shirt last year from gay activists who promoted the 2006 day by wearing various garments, stickers and buttons. When she wore her T-shirt, a school administrator told her to remove it. When she refused, another administrator told her to use a marking pen to blacken out "not gay." Afterwards, she and her parents met with school officials to try to reach an agreement allowing her to wear a similar T-shirt during the 2007 Day of Silence, but school officials refused, according to the suit.

School officials apparently took their cue from the district's Policy Manual, which requires students "to dress and groom in a manner that meets reasonable standards of health, cleanliness and safety and that is not disruptive to the educational program." The manual also forbids "garments or jewelry with messages, graphics or symbols depicting weapons or which are derogatory, inflammatory, sexual or discriminatory."

The Alliance Defense Fund, a Christian litigation group that has filed eight similar actions, said Zamecnik was not causing a material disruption for the school and the issue is the "the right for Heidi to share her viewpoint."

So, does the issue come down to free speech versus grooming? It can't, if the rule is to be applied uniformly. If Zamecnik is to be prohibited from wearing the T-shirt on "grooming" grounds, then the gay activists have violated the rule by wearing their buttons, stickers and clothing.

Or maybe the content of the message is the issue, because it is "derogatory, inflammatory, sexual or discriminatory" to the gay activists. But is not the gay activist message also derogatory, inflammatory or discriminatory to heterosexual activists?

Gay activists may say that the heterosexual message is more inflammatory than theirs because of the "long history of bullying, harassment and discrimination" that homosexuals and students of uncommon sexual orientation have had to suffer in schools. But, why should that restrict the free speech of someone who has not participated in "bullying, harassment and discrimination"? Or do you have to prove that you did not engage in such behavior before you are allowed to speak?

Or is the school saying her T-shirt itself constitutes "bullying, harassment and discrimination"? That would be a ridiculous assertion, because the T-shirt does not meet the generally accepted definitions of the terms. Unless we now want to restrict speech that "bothers someone."

This is tricky, because it gets into the debate over how "offensive" speech must be before it can be restricted. Those with long memories will recall Dr. Martin Luther King's marches advocating open housing into white neighborhoods in Chicago and its suburbs. On the streets, he encountered angry reaction, which included racist shouts, taunts, counter demonstrations and even some thrown objects. The argument was made then that he had to stop holding his marches because it provoked a reaction -- the same kind of argument now being made against Zamecnik's T-shirt. Or to update the argument: If your speech causes "offense," it can be censored.

It can get more complicated: Is silence protected speech? When does silence become speech? Clearly, in this case, it is a constitutionally protected expression, because of the declaration that silence on this particular day means something.

Then what if Zamecnik and her friends decide to have their own Day of Silence, to protest the other Day of Silence? This is an important question because gay activists are allowed to remain silent in class even if called upon by their teachers. Would the school allow Zamecnik to organize hundreds of students in opposition to homosexuality, a day on which they could refuse to answer a teacher's questions without facing disciplinary action?

The school has backed itself into this corner by sanctioning the pro-gay Day of Silence for political purposes. Who next will demand equal time? Peace activists, war supporters? Nazis? Communists? The limits of free speech in K-12 schools is a tricky issue, involving freedom of the press, freedom to publicly criticize administration and faculty, and so forth.

But the issue in Naperville shouldn't be a problem. The school is practicing speech discrimination based on a certain belief, and that is unconstitutional. How much easier it would have been for the school to acknowledge that expressing a view different than that pushed by the Day of Silence's sponsor is not by definition to engage in bullying or other reprehensible behavior. How much easier it would have been to grant one teenage girl a right to express herself.

Dennis Byrne is a Chicago Tribune op-ed columnist.

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