You’re wrong, SLO High: Schools do have the right to limit free speech, attorney says

Dear Principal Leslie O’Connor and Superintendent Eric Prater:

I am writing to voice my concern about your defense on free speech grounds of teacher Michael Stack’s recent letter to the editor, published in the online edition of Expressions, a SLO High School student publication.

In that letter, Mr. Stack extensively declares his religious conviction that homosexuals and others who disobey God “deserve to die.”

As an attorney, I was shocked to read your joint statement declaring yourselves powerless to stop Mr. Stack from expressing to the student body his religious view that homosexuals are sinners who deserve to die. The First Amendment simply does not protect such speech.

First, the First Amendment allows public schools wide discretion in regulating speech appearing in school publications. Second, and much more significantly, the Establishment Clause of the First Amendment demands that public schools refuse to publish speech that endorses one religion over another or otherwise shows preference for religion over no religion at all.

Freedom of Speech

Few would disagree that Mr. Stack’s position that homosexuals “deserve to die” is irredeemably deplorable. However, as much as we may dislike it, deplorable speech is typically protected by the First Amendment. Even hate speech is constitutionally protected when not accompanied by a hate crime (think of the horrifying messages touted by members of the infamous Westboro Baptist Church).

While it is true that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate, … the constitutional rights of students in public school are not automatically coextensive with the rights of adults in other settings.” (Morse v. Frederick.)

Indeed, public schools have the ability and responsibility to regulate speech in certain, limited circumstances. The Supreme Court has ruled that public schools may regulate speech that:

▪  would substantially disrupt the school (Tinker v. Des Moines Independent Community School District);

▪  impinges upon the rights of other students (Tinker);

▪  is vulgar or highly offensive in a given context (Bethel School District No. 403 v. Fraser);

▪  advocates illegal drug use (Morse v. Frederick);

▪  can be reasonably viewed to have the school’s endorsement or approval if the school has a legitimate pedagogical concern in regulating the speech (Hazelwood School District v. Kuhlmeier).

It is obvious that Mr. Stack’s opinions (1) impinge upon the rights students who are LGBTQ, non-Christian, or nonreligious, (2) are highly offensive under almost any community standards, and (3) can be interpreted as having the school’s approval given their appearance in a school-sponsored magazine.

Establishment Clause/Free Exercise

When a school publication is used as a platform for an individual to spread a supposedly Christian message portraying homosexuals as worthy of death, students and staff are left with the impression that the author’s particular flavor of Christianity has the school’s seal of approval.

Articles like Mr. Stack’s discourage students of more tolerant faiths from proudly living their religion for fear of being labeled as different. And they have a chilling effect on public participation from students who prefer to exercise no religion at all. I can’t imagine the school would ever publish the ravings of a white supremacist or an Islamic extremist suggesting homosexuals should die. Why, then, would the school publish an article advocating the same if not because of the school’s tacit approval of Christianity generally?

The publication of Mr. Stack’s religious views, including the word-for-word quotation of 16 Bible verses, is a clear violation of the First Amendment’s mandate that public schools refrain from taking sides in matters of religion. I hope that there are not many students or staff who agree with Mr. Stack’s extreme views. But if there are, they are entitled to those views under the First Amendment. That same First Amendment, however, prohibits the high school from giving Mr. Stack a platform to preach his message.

SLO High School’s mission statement is “to engage all students in a challenging and comprehensive educational program that will empower them to succeed with integrity and competence in an ever changing world.” The notion that homosexuals “deserve to die” is contrary to SLO High’s mission of empowering all students to succeed with integrity and competence in an everchanging world.

Moreover, Mr. Stack’s message undoubtedly impinges on the constitutionally protected rights of SLO High’s LGBTQ students and staff, as well as those who do not subscribe to Mr. Stack’s brand of Christianity.

I have lived in this county for many years. My wife grew up here. We have three young boys under the age of 7 who will someday attend SLO High. While I hope and expect my children will attend school in an environment that fosters the free exchange of ideas, I expect San Luis Obispo’s public schools will also take steps to avoid promoting speech that is hateful, discriminatory or religiously evangelizing.

This story was originally published May 18, 2017 at 1:30 PM with the headline "You’re wrong, SLO High: Schools do have the right to limit free speech, attorney says."