A student who was allegedly sent home for wearing a shirt stating “homosexuality is a sin” is now suing her Tennessee school district for violating her First Amendment rights and freedom of religion under state law, according to The College Fix.
The federal lawsuit claims that the teacher who sent the student to the principal’s office on Aug. 25 had a pro-homosexuality symbol in the classroom. The principal allegedly told her it violated the dress code because her shirt was “sexually connotative.”
The principal contacted her parents to bring a change of clothes, but the student’s stepmother took her home instead, refusing to bring a new set of clothes. As a result, Livingston Academy marked the student absent for the entire day.
“As interpreted an[d] applied, the School District’s Policy prohibits any message on clothing if somewhere within any other word the letters combine to [form] the word ‘sex,’” according to the suit.
The Oct. 16 filing does not name the girl because she is a minor. She filed the suit by and through her father, Richard Penkoski.
Kristin Fecteau Mosher—a local counsel for Penkoski and his daughter—told The College Fix in an email Monday that they had not received a response from the school district ten days later.
“[W]e just put the lawsuit in today’s mail to serve the Overton County BOE so they have not even seen it yet,” Mosher said. (The lawsuit was posted online and linked in two local TV reports Thursday, so the school district has likely seen it.)
“A lawsuit has been filed and we will go through the process to resolve it,” an unidentified representative for the Board of Education said.
An expert on First Amendment rights in public schools told The Fix that the federal court has a variety of case law to consult on student speech and the context in which it’s used.
The Fix reported:
The 7th Circuit has previously ruled that “it violates the First Amendment to force a student to change out of a T-shirt with the message: ‘Be happy, not gay,’” Frank LoMonte, director of the University of Florida’s Brechner Center for Freedom of Information and longtime head of the Student Press Law Center, wrote in an email Tuesday.
“These school-speech cases always boil down to what level of disruption the school can show that the speech has provoked, or realistically will provoke,” he continued. If a student wore a shirt with a Confederate flag and it caused a fight on school grounds, the school can ban it “even if the wearer had no intent to incite violence.”
The minor is identified as “B.A.P.” in the lawsuit, and is reportedly suing for violation of freedom of speech and free exercise of religion, due process and equal protection under the First, Fifth, and Fourteenth amendments. She is also asserting violations of Tennessee’s Religious Freedom Restoration Act.
The College Fix reported that the lawsuit says the student did not encourage harm or violence to anyone in expressing her political opinions. She wants to continue to express her beliefs “without being marked as absent, expelled, demerited, or suspended.”
Principal Richard Melton told Penkoski that his daughter’s shirt had a sexual connotation because of the word “sex” in homosexuality, making it inappropriate for school.
Livingston Academy is not completely against sexual matters, however, with the suit claiming that in the past year, students wore a “Virginity Rocks” shirt and shoes with a pro-homosexuality symbol on them—both of which went unpunished.
The word “sex” is not prohibited from being spoken in the school district during a class or “non-class time casual setting,” the suit claims.