By Steven Nelson at US News
“Nobody Knows I’m a Lesbian,” said the T-shirt that got Briana Popour booted from school.
Popour, a lesbian, reportedly was suspended from attending Chesnee High School in South Carolina after refusing to remove the shirt, which school leaders said was disruptive.
“I’ve worn this shirt before and nobody’s ever said anything,” Popour told WSPA-TV, which first reported the incident.
School principal Thomas Ezell did not respond to an emailed request for comment, and a receptionist said the local school district was handling press inquiries.
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Several voice-mail messages left with school district personnel did not yield a response, but an emailed statement shown on-air by WSPA-TV appears to confirm Popour’s account.
“[S]he was asked by school administration to cover it or change it, but refused preferring to be suspended instead,” a school district employee emailed the station.
The school’s action may be unconstitutional, according to free speech experts.
They point to the Supreme Court’s 1969 decision in Tinker v. Des Moines that the First Amendment applies to schools, which cannot whimsically ban unpopular or controversial speech.
UCLA law professor Eugene Volokh writes for his Washington Post-hosted legal blog that the school would need to have evidence of a “material disruption” for the punishment to be permissible under the U.S. Constitution.
Such a rationale was invoked by a more recent appeals court decision that allowed a school to ban U.S. flag shirts on Cinco de Mayo, citing a fear of racial violence. The Supreme Court declined to review that case.
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“Nothing in the story or in the high school’s reported response suggests that there was any serious risk of such violence,” Volokh writes of Popour’s case. “As best I can tell, the student’s classmates were behaving fine. And if that’s so, then the school administration was behaving unconstitutionally.”
Greg Lukianoff, president of the Foundation for Individual Rights in Education, agrees with Volokh’s assessment and points out the issue of T-shirt censorship is somewhat widespread, reaching even to college campuses, where students are adults and have greater speech rights.
FIRE recently won a settlement from Ohio University after suing over the school’s ban on a student group’s members wearing a shirt that said “We get you off for free.” It has an ongoing lawsuit against Iowa State University for banning a pro-marijuana legalization student group from ordering shirts that have the school’s name.
It’s unclear how long Popour was suspended or if the high school senior, whose mother supported her stance in a television interview, plans to pursue legal action.
Popour’s punishment was reversed after it became a national news story, Spartanburg School District 2 spokeswoman Rhonda Henderson tells U.S. News.
“The dress code disciplinary decision you inquired about was overturned,” she says, “when administration realized that although the shirt was offensive and distracting to some adults in the building, the students were paying it little attention.”
Mary Beth Tinker, whose black armband protest against the Vietnam War with her siblings and a friend yielded Tinker v. Des Moines, says it’s good that Popour stood up for her First Amendment rights.
“I’m glad Briana spoke up for herself and that her mother supported her right to do that,” Tinker says. “I also admire the principal for showing students that he’s not too proud to admit a mistake.”