Two Illinois high school students were recently suspended from school for wearing shirts reading "Safe Sex or No Sex," and decorated with condoms. They were dissatisfied with their school's "abstinence-only" approach to sex education. The girls are to be commended for speaking up. (I'm reminded, fondly, of my own first adolescent gropings toward political activism.)
One immediately wonders, of course, whether the girls have a viable First Amendment claim. The lesson of Morse v. Frederick, it seems, is that schools can punish student speech if it promotes activity the school is legitimately trying to discourage. The school would argue that the t-shirts were promoting teen sex, contrary to the school's abstinence curriculum, and that this is analogous to a message promoting drug use. The decision in Frederick was narrowly framed, however, and the Court disclaimed any application to "political speech."
Is "Safe Sex or No Sex" political speech? It seems to me that there are two messages here: (1) advocating that those who choose to have sex use protection, and (2) protesting the school's curriculum. The latter is clearly political speech. The former is arguably political as well, since it a message of significant social important, and "political speech" has always been broadly construed. It seems to me disingenuous to say that the shirts promoted teens having sex per se, but of course whether promoting safe sex is promoting sex is, in a way, the crux of the debate over traditional vs. abstinence-only sex ed. Moreover, unlike Frederick, there is no indication that criminal activity is being advocated, since most teen sex is perfectly legal (although, most would say, contrary to public policy).
While this story may never become a lawsuit, many teens across the nation have similar sentiments, and this particular controversy is likely to be replicated, and sooner or later, litigated.