School Improperly Bans Pro-Gay Speech

Article from Thrun Law Firm 

SCHOOL IMPROPERLY BANS PRO-GAY SPEECH

A federal district court in Florida recently held that a
school district improperly banned speech supportive of gay
rights. Gillman v Sch Bd for Holmes County, Case No.
F:08CV34 (ND Fla, 2008). The case facts are extraordinary
and clearly warranted the requested relief. While very few
school officials would conduct themselves as the school
principal did in Gillman, the case is a good reminder to
remain wary of ever-present student speech issues.
The dispute in Gillman began when a homosexual high
school student was taunted by several middle school
students because of her sexual orientation. The student
reported the incident to a teacher's aide, who relayed the
information to the high school principal. The principal
discussed the incident with the student a few days later,
counseling her that it was not "right" to be homosexual and
directing her to stay away from the middle school students
or face suspension. He also inquired whether her parents
knew of her sexual orientation. When she answered in the
negative, the principal asked for their phone number and
notified them. The student left the principal's office in tears.

The principal's actions became known to the student
body, and many students protested by writing "Gay Pride"
or "GP" on their bodies, wearing t-shirts with messages
supportive of gay rights, yelling "Gay Pride" in the hallways,
creating signs, and circulating petitions. Days after
the protest, a local preacher was scheduled to hold a "morality
assembly." The students believed it was called to discuss
homosexuality and many planned to walk out in silent
protest. None did so, in part because of the threat of
suspension.

Following the assembly, the principal began an investigation
of what came to be known as the "Gay Pride Movement."
He interviewed 30 students and interrogated them
about their sexual orientation and involvement in the
planned walk-out. Those who identified themselves as
homosexual were instructed not to discuss their sexual
orientation with others. All students were prohibited from
wearing various symbols and slogans supportive of gay
rights. Students were required to wash off slogans that had
been written on their bodies, and the principal lifted the
shirts of female students to make sure that they did so.
The principal suspended 11 students for their participation
in the "movement," claiming they belonged to a "secret
society" or "illegal organization" forbidden by school board
policy and that their actions had disrupted the school. When
the mother of one suspended student questioned the discipline,
the principal told her that he could send her daughter
"off to a private Christian school down in Tallahassee" or to
a juvenile detention center. He also stated that "if there was
a man in your house, [and] your children were in church,
you wouldn't be having any of these gay issues."

During the investigation, the principal investigated the
student's cousin, who is homosexual. The principal told her
being gay was against the Bible, that it was not right, and
that he hoped she would not "go down that road" of being
homosexual. After the suspensions were levied, the student
wore a rainbow belt and homemade t-shirt with the slogan
"I Support Gays," as an expression of support for her cousin,
her acceptance of homosexuals, and her belief that homosexuals
should be afforded equal and fair treatment. She
also wore the rainbow belt two subsequent days, without
incident and without punishment. Through her attorney she
sent a letter to the school board asking for clarification about
what slogans and symbols were prohibited. The board
effectively rejected all pro-gay slogans on the ground that
the expressions indicated a membership in an "illegal
organization" and were disruptive, expressly mentioning the
planned walkout of the assembly.
The student sued, claiming violation of her free speech
rights and, particularly, that the school's actions constituted
viewpoint-based discrimination. The trial court granted
Gillman's requested relief, including attorneys fees and
costs, which were stipulated as $325,000.

The court's analysis commenced with the oft-cited
"material and substantial disruption" standard set forth by
the U.S. Supreme Court in Tinker v Des Moines Indep Cmty
Sch Dist, 393 US 503 (1969). While acknowledging the
difficult job school officials face in matters of order and
discipline, the court found that the facts of this case were
extraordinary - an outright ban on speech that was not
vulgar, lewd, or obscene, but rather purely political and
expressing tolerance, acceptance, and fairness. The speech
was not only in support of a marginalized group, but, more
importantly, for a fellow student who had been victimized
by students and the school principal only days earlier.
The court was troubled that the principal responded to
claims of harassment not by consoling the victim, but by
shaming her, telling her parents of her sexual orientation,
telling her to stay away from other students because of her
sexual orientation, preaching to her that is was not "right" to
be homosexual, and suspending her for expressing support
for herself and other homosexual students. The court found
that any "material and substantial disruption" was not caused
by the student's speech, but by the principal and his "witch
hunt."

The school argued that the "sexual" nature of the speech
was not appropriate for middle school students who shared
a building and commingled with high school students. The
court rejected this argument, holding that the speech was not
"sexual" in nature, and certainly less inappropriate than the
sexually explicit articles found in library copies of
Cosmogirl, Teen Vogue, Seventeen, Redbook, and Women's
Day.

The court further noted that, during the same time frame
as the "Gay Pride Movement," a student complained about
an incident that involved sexually-explicit speech by
students, albeit heterosexual in nature. No investigation was
conducted regarding that incident, and the principal did not
warn the students against discussing "heterosexual issues."
Further, the court found that the school banned rainbows
and pro-gay slogans but not swastikas and confederate flags.
In light of the foregoing, and the broad ban against virtually
all symbols or slogans supportive of gay rights, the court
ruled that the school had acted in a viewpoint-discriminatory
manner, stating that "when the government targets not
subject matter, but particular views taken by speakers on a
subject, the violation of the First Amendment is all the more
blatant."

Gillman is an extreme case involving a school principal
who was either uncommonly defiant or naive about First
Amendment issues. If nothing else, however, Gillman is at
least an example of how not to address issues of student
speech. While Gillman is not itself binding precedent in
Michigan, it relies on familiar Supreme Court cases and is
consistent with decisions that are binding in Michigan. If
you have questions about how to handle the often tricky
situation of student speech restrictions,
it is recommended that you contact your legal counsel.