Anti-Gay and Anti-Equality Speech

Anti-Gay and Anti-Equality Speech

The law states loud and clear...

  • Every student has a constitutional right to discuss political and social issues from all perspectives.
  • Students do not have a constitutional right to substantially disrupt the educational environment, express themselves in a lewd or profane manner or inflict verbal abuse.
  • “There is no constitutional right to be a bully.” As one federal appeals court explained, “[i]ntimidation of one student by another, including intimidation by name calling, is the kind of behavior school authorities are expected to control or prevent.”

Distinguishing between offensive but constitutionally protected speech and verbal harassment, which is unprotected, can be tricky. The First Amendment may in some circumstances protect a student’s right to voice, at school, an objection to homosexuality or LGBTQ rights. But nothing requires school officials to agree.

And there are ways to create a supportive school environment without infringing on any student’s First Amendment rights:

  • If officials are concerned that a student’s expressed opposition to LGBTQ equality could create an intolerant environment or upset others, they can remind students that, while the school respects freedom of speech on these issues, the school itself remains committed to the full inclusion of, and respect for, all students, including LGBTQ students.
  • School officials can reiterate this message by making an announcement, or implementing or redistributing copies of an anti-harassment policy
  • Schools can also make additional LGBTQ-supportive resources available to students, or encourage students who are upset to speak with a counselor.

Of course, school officials should not punish or otherwise discipline a student based on his or her constitutionally protected speech; nor should they permit LGBTQ-supportive students (or staff members) to harass the student with anti-LGBTQ ideas. But provided school officials prohibit such misconduct, they are entitled (and in some circumstances, required) to convey the school’s institutional support for LGBTQ students and their allies.

If you need further information, contact Lambda Legal at 866-542-8336 or visit www.lambdalegal.org/help.