The settlement was for the defendant school board to pay the grand total of $101 toformer student Brielle Penkoski three years after she was sent home from the Livingston Academy public high school (in Tennessee) for wearing the shirt above. Not surprisingly, the mainstream media hasn’t carried this story, as damages that tiny are considered symbolic at best. However, the fact that the defendant paid at all is symbolic, and from my viewpoint, it symbolizes a misreading of the First Amendment.
Yeah, yeah, the settlement came with the typical boilerplate language stating that the result comes “without acknowledgement of wrongdoing on the part of any party or the agents or employees of any party, which wrongdoing is expressly denied.” But Christian Right publications and websites are cheering the result—the school board will also pay the plaintiff’s attorney’s fees and costs—as vindication.
Rich Penkoski, a street preacher, initially filed the lawsuit against the school in the U.S. District Court for the Middle District of Tennessee on behalf of his daughter. After Brielle turned 18, she became the only plaintiff in the case, which asserted that the Overton County Board of Education had violated her First Amendment rights in 2020 by asking her to change out of the shirt bearing the reference to 1 Corinthians 6:9-10. Now, following the settlement, Rev. Penkoski told the reporters that he was gratified that the school’s teachers were now “taking First Amendment courses.” I think he needs to take a First Amendment course.
The First Amendment doesn’t protect speech that attacks or denigrates other students, which can disrupt teaching and a productive learning environment. In the 1969 case Tinker v. Des Moines Independent Community School District, the U.S. Supreme Court, while noting that students and teachers do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,” ruled that schools can censor student speech which is likely to disrupt school operations. It seems self-evident that a shirt declaring gay students to be sinners is likely to constitute harassment, and to promote conflict in the school population.
Brielle’s father seems to think his daughter’s message is the equivalent of the LGBTQ pride symbols the school allowed students to wear, but he’s wrong. Those are positive messages, and fall squarely under the kind of student speech schools must allow. The T-shirt was a negative message. A Jewish student could wear a shirt with Israel’s flag on it, but a T-shirt saying “From the river to the sea…” would cross the line in a public school, if not in Harvard Yard.
My guess is that the school settled because they recognized that the plaintiff’s family were zealots, they didn’t want to pay for long, drawn out litigation, and, in short, they are weenies. As a result, more parents are likely to send their students to school with denigrating messages on their clothing (“MAGA Supporters Are Nazis”) , and another school district will have to pay to settle the issue.
However, all of the jurisprudence on this issue says that her T-shirt shown above was not appropriate attire in a public school setting
Ethics Alarms 
I understand the Supreme Court’s distinction in the case you cited. However, I am concerned that it gives administrations a loophole for bowing to an anticipated heckler’s veto. Using your example, I could see a principal ordering a student wearing a shirt with an Israeli flag to change clothing to prevent a protest or riot which would be disruptive.
From my perspective, that opens the door to censoring anything that might possibly offend someone.
Well sure, all legal opinions and rulings can be unethically stretched and abused, especially that one: it’s been used to punish kids who made finger guns, after all. But nixing a shirt that tells any class mates who might be gay that they are going to burn in Hell is a pretty easy call, no?
I 100% agree that the shirt in this case was inappropriate, offensive, beyond common decency and should not be worn in polite society. With that being said, my issue is with applying the “disruptive standard” to try and make an objective assessment as to what is and is not appropriate as it incentivizes protesters to become disruptive to get their way as they only have to do so a handful of times before just the threat becomes sufficient.
I refer you to the protests to prevent those on the right from speaking on college campuses and how many colleges then either turned around and canceled events proactively or wanted to charge the sponsoring organizations prohibitive security fees to permit the event.
I agree completely, and that’s why muddying this particular instance is just more opportunity for mischief.
What about a shirt that bears, “For all have sinned, and come short of the glory of God. -ROMANS 3:23 KJV” That one doesn’t single anyone out -including the wearer.
I see no way any official could claim that passage could be “disruptive.”
But you know one would…
Ahron framed the issue far better than I could. Theoretically, any statement could be offensive to someone.
Let me first say that I don’t care what a person’s orientation may be. However, I do find the constant references to gay pride being promoted in the classroom objectionable. The classroom is not the place to promote any orientation even if if makes a relatively small number in the class feel included. From the perspective of the student in the photo, such references are not uplifting and positive they are a slap in the face of what that student believes is morally correct. You cannot say that gay iconography is ok but anti-gay is not.
Neither belong in the classroom and the only reason that the above t-shirt might be construed as disruptive is because the targeted party wants to raise a ruckus instead of ignoring it. What we may be witnessing is the means of raising a ruckus from the other point of view that has been up to now been silent. If that is the case, and religious students start complaining about being offended by Pride flags or other iconography, will that have to be stopped because it too is disruptive?
We need to start teaching kids not to be so sensitive. Kids tend to be mean and learning to deal appropriately with obnoxious peers is skill sorely missing. We have kids killing kids all over the country because we have taught them that any slight is “dissing them” so they must retaliate. I know that is an extreme but social anxiety and sensitivity might just be the reason for the increase in teenage suicide rates.
Had that kid been ignored the sweatshirt would have been relegated to the closet. The student wore it; the behavior got the expected response; the student gained desired fame. The adults just rewarded bad behavior. The adults should be teaching that such statements are just a point of view that cannot be proven.
I’m going to say that the shirt does not constitute harassment any more than one calling Republicans or whites or Americans racists would. And you can bet those would be considered fine under the First Amendment. And just like I would ignore it because it stretches the definition of racism, the target of this one should ignore it because their definition or sin (and their attitude toward sinning) is different than the wearer. I’d rather have seen this taken to the courts to clarify on that issue.