Fighting Hate Teaching Tolerance Seeking Justice Southern Poverty Law Center 400 Washington Avenue Montgomery, AL 36104
August 31, 2011
Mr. Don Hulin (via e-mail and U.S. mail) Principal Hoover High School 1000 Buccaneer Drive Hoover, Alabama 35244 Mr. Andy Craig (via e-mail and U.S. mail) Superintendent Hoover City Schools 2810 Metropolitan Way Hoover, Alabama 35243 Dear Principal Hulin and Superintendent Craig: Hoover High School recently prohibited a student, Sara Couvillon, from wearing clothing expressing support for the acceptance and fair treatment of lesbian, gay, bisexual, or transgender (LGBT) people. Sara was pulled out of class and told that she could not wear a t-shirt that displayed the slogan “Gay? Fine by me.” On behalf of the Southern Poverty Law Center (SPLC), which has been retained to investigate Sara’s claim, I’m writing to inform you that unless you discontinue the practice of prohibiting Sara, or any other student, from wearing pro-LGBT clothing, the SPLC will bring an action to put a stop to this misguided practice. Your school’s conduct of preventing Sara from wearing her t-shirt violates both the First and Fourteenth Amendments and must immediately cease. The U.S. Supreme Court has made it clear that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gates.” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 506 (1969) (upholding rights of high school and middle school students to wear black arm bands in protest of the Vietnam War). Sara, and all other students at your school, have the right to express their views freely, so long as their chosen mode of expression does not “materially and substantially disrupt the work and discipline of the school.” Tinker, 393 U.S. at 513. A school administrator’s fear of future disruption or interference must have a genuine basis in fact and be reasonable – “undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression.” Id. at 508. Instead, “there must be demonstrable factors that would give rise to a reasonable forecast by the school administration of ‘substantial and material’ disruption of school activities before expression may be constitutionally restrained.” Holloman ex. rel. Holloman v. Harland, 370 F.3d 1252, 1273 (11th Cir. 2004) (quotation omitted). As explained by the Supreme Court in Tinker: Any departure from absolute regimentation may cause trouble. Any variation from the majority’s opinion may inspire fear. Any word spoken, in class, in the lunchroom,
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or on the campus, that deviates from the views of another person may start an argument or cause a disturbance. But our Constitution says we must take this risk, Terminiello v. Chicago, 337 U.S. 1 (1949); and our history says that it is this sort of hazardous freedom -- this kind of openness -- that is the basis of our national strength and of the independence and vigor of Americans who grow up and live in this relatively permissive, often disputatious, society. Tinker, 393 U.S. at 508-09. The censored content on Sara’s t-shirt is protected speech under both the federal and state constitutions. See Fricke v. Lynch, 491 F. Supp. 381, 385 (D.R.I. 1980) (holding that First Amendment protects non-sexual expression of a student’s gay sexual orientation). Indeed, a federal court has already ruled that a school cannot prevent its students from wearing the very expression that you censored. In Gillman v. School Board for Holmes County, Florida, 567 F. Supp. 2d 1359 (N.D. Fla. 2008), the school board banned students from wearing pro-gay symbols or slogans such as “I support Gays,” “I Support My Gay Friends,” and “Gay? Fine By Me.” In striking down the ban, the court held that the slogans were “not vulgar, lewd, obscene, plainly offensive, or violent, but [were] pure, political, and expresse[d] tolerance, acceptance, fairness, and support” for a marginalized group. The court ruled that by banning such slogans, the school board violated the students’ free speech rights under the First Amendment and discriminated against their viewpoint in violation of the Fourteenth Amendment. In addition to striking down the school’s ban, the court also ordered the school board to pay $325,000 for the students’ legal fees and expenses. Evidently, officials at your school told Sara that she could not wear the shirt because they were “concerned for her safety.” Yet, Sara did not experience any threats of violence, nor did the officials tell Sara that there were threats of violence against gay students from which disruption could have, or did, result. In fact, Sara had routinely worn the t-shirt during the previous school year without incident. Therefore, the officials’ stated reason for the censorship was unfounded and unsubstantiated. Moreover, even if there are students who will act disruptively in reaction to Sara’s t-shirt, the school has a duty to punish the disruptive students, not to prohibit Sara’s speech. “If a student’s conduct traverses the threshold of acceptable heated exchange into the realm of material and substantial disruption, the law requires school officials to punish the disruptive student, not the student whose speech is lawful.” Gillman, 567 F. Supp. 2d at 1374 (emphasis added); see also Holloman, 370 F.3d at 1275 (To curtail a student’s freedom of expression because of potential disruptive behaviors by other students “is to sacrifice freedom upon the alter of order, and allow the scope of our liberty to be dictated by the inclinations of the unlawful mob.”); id. (“The fact that other students might take such a hairstyle as an incitement to violence is an indictment of those other students, not long hair.”). By censoring Sara out of concern that other students would behave disruptively, your school has allowed those disruptive students to exercise a “heckler’s veto” over Sara’s free speech rights. The First Amendment does not permit such an outcome. Please confirm in writing by close of business Monday, September 12, 2011 that you have rescinded your unlawful policy and that Sara and all other students within the District may wear a “Gay? Fine by me.” t-shirt and other similar expressions of support for LGBT rights. Without prompt and meaningful action to remedy the constitutional violations suffered by our client and to compensate our client for the harm caused by the
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school, we intend to file a federal lawsuit seeking full redress, including but not limited to injunctive and declaratory relief, damages, and attorneys’ fees and expenses. Thank you for your careful attention to this important matter.
Samuel Wolfe Staff Attorney, LGBTQ Rights Project Southern Poverty Law Center cc: Earl Cooper, President, Hoover Board of Education Paulette Pearson, Vice-President, Hoover Board of Education Dr. Ronald Braswell, Member, Hoover Board of Education Donna Frazier, Member, Hoover Board of Education William Veitch, Member, Hoover Board of Education