Letter ACLU sent to Washington County School System

May 14, 2007

Via facsimile and first class mail

Grant A. Rowland, Jr., Director
Washington County School System
405 West College Street
Jonesborough, TN 37659
Fax: (423) 753-1167

Dear Mr. Rowland:

We have been contacted by Zina Owens, the mother of Curtis Walsh.  Curtis is currently a student at David Crockett High School.  Ms. Owens reports that Principal Marable sent Curtis home for three days, and thus essentially suspended him, for organizing and participating in a “Day of Silence” demonstration.  The Day of Silence is an annual student-organized day of action to protest the bullying and harassment of lesbian, gay, bisexual, and transgender (LGBT) students, and their straight allies.  Ms. Owens also states that Principal Marable ordered three or four other students to remove cards and other symbols expressing their participation in the Day of Silence.

Principal Marable’s actions against Curtis and the other students for their participation in the Day of Silence violate their constitutional rights to freedom of expression.  The United States Supreme Court has long held that “students [do not] shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Tinker v. Des Moines, 393 U.S. 505, 507 (1969).  As the Court stated in Tinker, “The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools.  The classroom is peculiarly the marketplace of ideas.”  Tinker, 393 U.S. at 512.

As the Court further explained in Tinker, school officials may not prohibit students from engaging in speech out of “an urgent wish to avoid the controversy which might result from the expression.” id. at 510-11.  Nor may school officials censor student expression out of “a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.”  Id. at 509.  Thus, to the extent that Principal Marable’s actions were an attempt to avoid debate, no matter how controversial, over the prevalence of harassment and discrimination against LGBT students, he acted unlawfully.

Moreover, to the extent that Principal Marable censored Curtis out of a belief that other students would react disruptively to Curtis’ silent and peaceful protest against anti-gay harassment, the Principal’s actions were impermissible.  School officials may not censor student speech solely because others may react disruptively to the speech.  Cox v. Louisiana, 379 U.S. 536, 551 (1965) (holding that “constitutional rights may not be denied simply because of hostility to their assertion or exercise.”); Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35 (1992) (holding that “speech may not . . . punished or banned simply because it might offend a hostile mob.”).  Courts have repeatedly held that students have the right to speak openly about sexual orientation issues, even in the face of hostile and violent reactions to their speech.  See Henkle v. Gregory, 150 F. Supp. 2d 1067, 1076 (D. Nev. 2001) (right to be openly gay at school); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp. 2d 667, 690 (E.D. Ky. 2003) (right to form gay-straight alliance clubs on high school campuses); Fricke v. Lynch, 491 F. Supp. 381, 385 (D.R.I. 1980) (right to attend the high school prom with a same-sex date); Doe ex rel. Doe v. Yunits, No. 001060A, 2000 WL 33162199, at *5 (Mass. Super. Ct. Oct. 11 2000) (right to dress in gender non-conforming clothes at high school).  As one court succinctly stated, “The first amendment does not tolerate mob rule by unruly school children.”  Fricke, 491 F. Supp. at 387.

Rather than punishing Curtis and the other Day of Silence students, Principal Marable and other school officials had the obligation to protect them from harassment.  Fricke, 491 F. Supp. at 386 (holding that school officials had the duty to enact “appropriate security measures” coupled with “a firm, clearly communicated attitude by the administration that any disturbance will not be tolerated,” to protect gay student in the exercise of his free expression rights).  In addition, school officials may not treat students differently on the basis of their actual or perceived sexual orientation.  Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996) (holding that gay students are entitled to equal protection); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1135 (9th Cir. 2003) (holding that school officials may be liable for failing to enforce policies against sexual orientation discrimination); see also Scarbrough v. Morgan County Board of Education, 470 F.3d 250, 261 (6th Cir. 2006) (holding that government official’s action based on animus or ill-will against homosexuals violates the constitutional guarantee of equal protection).

We note that Washington County’s district policies are deficient in that they do not appear to reflect the state of the law.  For example, contrary to the cases discussed above, the District’s policy against discrimination and harassment does not explain that LGBT students are also entitled to equal educational opportunities.  See Board Code 6.305 (defining discrimination/harassment as conduct that is of a “sexual, racial, ethnic, or religious nature”).  Further, the District’s policy on “Student Conduct” is deficient in that it appears to permit school officials to punish students for peacefully engaging in their free speech rights.  See Board Code 6.306 (prohibiting students from engaging in “passive resistance”).

In sum, school officials may not censor students out of a desire to avoid controversy or as a means of quelling a disruptive reaction to student speech.  Nor may school officials treat students differently on the basis of their actual or perceived sexual orientation.  We request that 1) Principal Marable immediately apologize to Curtis, his mother, and the other students whom he censored; and 2) that you, as the Director of Schools, inform the school community, including administrators, teachers, and students, that school officials must respect and enforce the free speech and equal protection rights of LGBT students as set forth in this letter.  We also request that your directive be in writing and be issued at the beginning of school year 2007-2008.

I would appreciate a response to this letter by no later than Monday, May 21, 2007.  My telephone number is 615.329.9934, and my fax number is 615.329.9796.

Very Truly Yours,

Christine P. Sun
LGBT Staff Attorney*

cc:   Zina Owens
        James Esseks, Esq., Litigation Director, ACLU LGBT Project

* Admitted in California and New York.  Not currently admitted in Tennessee.

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