Today, on the 48th anniversary of its landmark free speech case, Tinker v. Des Moines Independent Schools, the ACLU of Iowa announced that it is representing a Newton High School transgender student who was taken to the principal’s office for writing “love trumps hate”on his arm.
The sophomore, a minor whose name the ACLU is not sharing to protect his privacy, was in teacher Brian Smith’s class on November 14, 2016, when the teacher observed that he had written “love trumps hate” on his arm and repeatedly referred to him as “girl.” The student offered to wash it off, but Smith said he didn’t know if the student would be required to wash it off and instead escorted him to the assistant principal’s office. The assistant principal, Dave Kalkhoff, told the student he’d have to wash it off or leave school grounds. Rather than face discipline, the student washed the message off his arm.
Kalkhoff further told the student that as assistant principal, he does not talk to students about politics and students should not talk about politics, either. But this was a misrepresentation of students’ fundamental free speech rights.
Violates Student Free Speech Rights Established 48 Year Ago
In 1969, in the landmark case, Tinker v. Des Moines Independent Schools the U.S. Supreme Court famously recognized that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” That lawsuit was brought by the ACLU of Iowa on behalf of three Des Moines students who had been sent home from school for wearing black armbands to protest the Vietnam War and refusing to remove them, but the Supreme Court upheld that right.
As a result of that landmark decision, contrary to Newton Assistant Principal Kalkhoff’s statement, students clearly have the right to non-disruptive political expression at school.
In the Newton case, Smith has talked openly to students in his physical education class about being Republican and his political views. Other teachers and students have expressed their political views at school as well. Unfortunately, in this case, it seems the school’s reason for shutting down the student’s right to free speech was the viewpoint the student expressed and whether administrators agreed with that viewpoint.
The student’s mother, who also has asked not to be identified to protect her son’s privacy, was upset in the way her child was treated by the school. "When my son came home and told me what happened, I knew his rights had been violated, and I was both offended and frustrated. It is really important to me, especially during these times, to stand up for our rights."
The school has taken other action to block student speech. On November 15, the day after the student was reprimanded for writing “love trumps hate” on his arm, approximately 60 students planned a walkout and protest. Their intent was communicating a message of support, love, diversity and inclusion. Some teachers threatened that if students participated, they would not be given varsity letters for their jackets. As a result, many students decided not to participate
Transgender Student Also Belittled
When Smith first saw the student drawing on his arm, said, “Don’t be drawing on yourself, girl.” The student at first thought Smith was joking because Newton High School has been very supportive of him since he came out as a boy two years ago. But Smith repeated the comment and the student understood Smith’s tone and pointed way of calling him a “girl” as showing Smith’s intention to insult him.
Another student even pointed out to Smith that the student is a boy, and at the point the classroom environment became tense, and Smith called the transgender student into the hall.
Both federal and state law protect public school students from harassment and bullying on account of gender identity. That protection includes referring to transgender students by their correct pronouns (in this case “him” and not “her”) and not creating a hostile environment based on the student’s transgender identity.
Asking for School to Apologize, Educate
The ACLU of Iowa is demanding four things on behalf of their clients:
- A formal letter of apology to the student from Newton High School for forcing the student to remove the writing from his arm as well as Smith’s referring to him as “girl.”
- Training for all teachers regarding First Amendment rights of all students at Newton High School.
- Education provided by the school to all students about their First Amendment rights to counteract the chilling effect the incident has had on student freedom of expression at Newton High.
- Instruction to all school staff to refer to transgender students by their chosen identifiers and pronouns. The school should also require and provide training for understanding and interacting with transgender students.
Rita Bettis, ACLU of Iowa legal director, said, “We believe that it is more important than ever to protect the rights of students in public school, and all of us, to free speech and expression.
“In the wake of an extremely contentious election, public school kids, like many adults, are engaging in protected speech, protest, and demonstration. In a free society, this core political speech, including and especially in the form of dissent, is a source of strength, not weakness.
“Almost a half-century after the ACLU of Iowa’s historic Tinker victory, it is outrageous that any school—perhaps especially in Iowa—would engage in this sort of violation of a student’s free speech rights at school.
The demand letter sent to Newton High School can be found here.
For the Tinker Anniversary and in support of the Newton student, Mary Beth Tinker has made a video to encourage students to fight for their First Amendment rights. View the video.
