In Missouri, school district officials are apologizing after they removed two yearbook senior quotes by two gay students. Staffers worried other people might get offended if these got published. The texts:
If Harry Potter taught us anything, it’s that not one should have to live in the closet.
And Joey Slivinski‘s:
Of course I dress well. I didn’t spend all that time in the closet for nothing.
They say they got absolutely no warning about the edit. The quotes would have appeared under their pictures, but instead, they saw a blank space.
“I went to find my quote in the yearbook, but nothing was there,” Slivinski told KCTV5 in a Friday report.
“It was a blank picture under my name,” Swartz said. Both teens, who have now graduated from Kearney High School, are openly gay.
“I’m comfortable in my own skin and with who I am,” Slivinski said. “It felt like the district took that from me.”
The outlet reached out to the Kearney School District for comment.
“In an effort to protect our students, quotes that could potentially offend another student or groups of students are not published,” said KHS Principal Dave Scwarzenbach and district Superintendent of Schools Dr. Bill Nicely. “It is the school’s practice to err on the side of caution. Doing so in this case had the unintentional consequence of offending the very students the practice was designed to protect. We sincerely apologize to those students. All KSD staff understand the importance of inclusion and acceptance especially in an educational setting. We work diligently to help every student feel safe, supported, and included.”
They said district staff take part in ongoing training in diversity, and promised that this will be a “learning opportunity.”
Eugene Volokh, a First Amendment expert teaching at UCLA Law School, says case law on this sort of situation remains unclear.
“There is no binding precedent in the Eighth Circuit, where this happened,” he told LawNewz.com in a phone interview Monday.
Volokh explained that yearbooks can be construed as the school’s own speech, in which case the district could freely remove the quotes. On the other hand, it could be argued that officials, by requesting quotes from students, could be creating a limited public forum, in which case they couldn’t censor speech based on the speaker’s viewpoint. Federal judges in the Eighth Circuit haven’t reached a consensus on this question yet.
The school district’s statement, acknowledging the reason Swartz’s and Slivinski were removed, seems pretty key.
“That suggests it’s probably a viewpoint-based restriction,” Volokh said. The school’s existing policies on yearbook quotes could also inform whether the yearbooks are in any way treated as a limited public forum.
“I think the school should not have censored these quotes,” Volokh said. But he pointed that this doesn’t answer the legal question at play.
Update – Aug 14, 2:31 p.m. EST: We added analysis from Volokh.
[Screengrab via KCTV: Slivinski, on left, and Swartz]