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Hastings Constitutional Law Quarterly

Authors

Jerico Lavarias

Abstract

The question of whether homosexuality is a sin has been, especially in the last decade, at the center of public discourse. People who practice any Christian religion would strongly answer in the affirmative to this question. However, we live in modem times where the right to freedom of speech and enjoyment of civil liberties are arguably at their height, and contrary to religious conclusions many positive viewpoints have arisen on the practice of homosexuality. Yet the debate continues. While there is no question to the right afforded to adults to freely and openly discuss the issue of whether homosexuality is a sin, there is not a similar consensus as to whether minors should be entitled to engage in similar debate while in the arena of public schools. Some argue that, once at school-age, children, like adults, have the intellectual and emotional capacity to express their ideas on even controversial topics, and therefore have coextensive rights to freedom of speech. By contrast, others argue that youth ought to be able to develop in a school environment in which they can learn and be free from exposure to hate speech or offensive words, and thus such restrictions against negative views should be upheld in the public school setting.

Imagine this: a gay American public student goes to school wearing a T-shirt that reads "GAY PRIDE: BE OUT, BE PROUD, BE GAY." Conversely, a heterosexual student goes to school the next day and wears a T-shirt, which reads, "STRAIGHT PRIDE: Homosexuality is SHAMEFUL." Are both these students entitled to their views? More importantly, do they have the legal right to display them in the forum of the American public school? The question that arises is whether the court can ban negative speech while promoting positive speech.

The object of this Note is to highlight the problematic nature of Tinker's "invades the rights of others" standard because the question of whether or not an exercise of free speech violates such a standard would likely turn on a school official's or school district's particular viewpoint. As such, with respect to students who want to promote gay rights through invocation of their First Amendment right to free speech, the court's rule cuts in both ways. This Note also proposes the adoption of hate speech codes in the public school setting to promote a positive educational environment, but at the same time allow debate on contested issues, such as the question of whether homosexuality should be accepted in America.

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