Protecting the Children: The Limits of School Restrictions on Anti-Gay Speech
Stanford Law School
February 1, 2012
Lower courts have reached fundamentally incompatible conclusions about schools' ability to protect students from harmful anti-gay speech. To resolve this conundrum, I examine jurisprudence on protecting minors from harmful speech -- like pornography or pro-drug advocacy -- in and out of school. Under this jurisprudence, schools have broad authority to restrict anti-gay speech because it harms the psychological well-being of gay students and invades their right to be let alone. Adopting this protectionist justification nevertheless imposes clear limits on such restrictions. Schools cannot ban anti-gay political commentary unless the school environment is hostile to gay students. Nor can high schools prevent students from voluntarily exposing themselves to anti-gay speech in civil discussion.
Number of Pages in PDF File: 39
Keywords: First Amendment, law, education, student speech, hate speech, homosexuality, bullying, homophobia, Tinker, Ginsbergworking papers series
Date posted: February 5, 2012
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