Adolescent Identity vs. The First Amendment: Race, Sexuality, and Hate Speech in the Public Schools

Abstract

This Article examines the legal tensions that currently exist between public schools’ attempts to protect gay students from bullying and harassment and antigay students’ First Amendment rights to engage in allegedly harassing speech. First, it looks at the popular conception of the relationship between childhood or adolescence and sexuality by considering the political and legal fallout of the same-sex marriage debate. Then this Article turns to a conception of public schooling that would allow for the constitutionally permissible regulation of antigay-identity speech. Next, through the use of critical theory, this Article explains why First Amendment defenses to gay harassment have such widespread appeal. Finally, this Article looks at the recent case law involving the so-called t-shirt wars and critiques the dominant legal approach that leaves gay students vulnerable to constitutionally sustained harassment within the confines of the public schools.