ACLU Secures Two Federal Rulings On Free Speech And Gay Rights In Schools

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Published on Friday, 29 August 2008

Written by ACLU Florida

HIGH SCHOOL PRINCIPAL: Rainbows make students think of gay sex.
JUDGE: Students have free speech right to support gay friends.

During a two-day trial in May, a Ponce de Leon Florida high school principal testified that he believed clothing or stickers featuring rainbows would lead students to picture people having sex. At the end of day two, the federal judge ruled that the school violated students' First Amendment rights.

The case was brought by the American Civil Liberties Union on behalf of Heather Gillman, a junior at the school who had been forbidden by her principal to wear any sort of clothing, stickers, buttons, or symbols to show her support of equal rights for gay people. "Standing up to my school was really hard to do, but I'm so happy that I did because the First Amendment is a big deal to everyone," said Heather Gillman, plaintiff in the case.

Gillman approached the ACLU in September of 2007 after a student reported to school officials that she was being harassed by other students because she is a lesbian. Instead of addressing the harassment, students say the school principal responded with intimidation, censorship, and suspensions.

Ponce de Leon High School, with a student body of 400, is located in Holmes County, halfway between Pensacola and Tallahassee in Florida's rural panhandle.

Gillman, a 17-year-old student who identifies herself as heterosexual, was infuriated and the next day responded to the suspensions and the principal's claim the students involved in the gay pride movement were involved in an "illegal organization" by wearing a rainbow t-shirt and a rainbow colored belt to school.

She complained about an atmosphere in which students who attempted to express their support for the equal treatment and respect for gay and lesbian students were routinely intimidated by the school's principal for things like writing "gay pride" on their arms and notebooks or wearing rainbow-themed clothing.

After ruling from the bench, federal judge Richard Smoak issued a strongly worded order that forces the school to stop its unconstitutional censorship of students who want to express their support for the fair and equal treatment of gay people. The judge also warned the district not to retaliate against students over the lawsuit.

During the trial, which was held in Panama City, Ponce de Leon High School's principal David Davis admitted that he had banned students from wearing any clothing or symbols supporting equal rights for gay people. Davis also testified that he believed rainbows were "sexually suggestive," and would make students unable to study because they'd be picturing sex acts. The principal also admitted that he allowed students to wear other symbols many find controversial, such as swastikas and the Confederate flag. Davis said he did not foresee these as creating a "disruption."

U.S. District Judge Richard Smoak called Principal Davis' behavior "particularly deplorable." Davis, whose actions were supported by the Holmes County School Board, "catalyzed the Gay Pride movement," the Judge wrote in a 36-page opinion, "because of his animosity toward students who were homosexual." He engaged in what the court called a "witch hunt" to "identify students who were homosexual and their supporters," going so far as to lift the shirts of female students to insure that the letters "GP" or the words "Gay Pride" were not written on their bodies.

"Freedom of speech for every person and every idea is one of the bedrock principles on which America was founded," said Benjamin Stevenson, ACLU staff attorney in the Pensacola Regional Office who was lead attorney on the case. "Censorship reflects a deep lack of faith in the American system, and it teaches students exactly the wrong lesson on what America is about. We are thrilled that the court in this case made the importance of students' First Amendment rights so completely clear."

Following the court ruling, Davis was removed as Ponce de Leon High School Principal. His new assignment: teaching American government.

HIGH SCHOOL PRINCIPAL: Gay-Straight Alliance is sex-based, not allowed on campus.
JUDGE: The GSA has "all the rights and privileges granted to other non-curricular groups."

Nearly three years of litigation culminated in a groundbreaking decision this summer by Federal Judge K. Michael Moore who ruled that school officials in Okeechobee, Florida, must allow a gay-straight alliance (GSA) club to meet on campus. In the precedent-setting order, Judge Moore upheld his earlier ruling that GSAs do not interfere with abstinence-only education.

Moore also broke legal ground by ruling that schools must provide for the well-being of gay students the same as straight students and therefore, the school cannot discriminate against the GSA. In the order, the court grants students in the GSA "all the rights and privileges granted to other non-curricular groups."

"Judge Moore's ruling that GSAs are beneficial to gay students and that they don't harm straight students is unparalleled," said Robert Rosenwald, Director, ACLU of Florida LGBT Advocacy Project. "These are brave students who would not be silenced and did not tolerate discrimination. Hopefully this ruling will serve as a reminder to other Florida schools that equal access truly means equal access, and schools that choose not to follow the law will be inviting similar litigation."

The ACLU prevailed in Okeechobee on both Equal Access Act and First Amendment grounds. The Federal Equal Access Act requires schools to treat gay-straight alliances as they would any other school group. Federal courts have repeatedly upheld students' rights by ruling in favor of GSAs when schools have tried to block their formation.

Regarding the First Amendment, Judge Moore quoted the famed 1969 Tinker case stating that students as well as teachers do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Moore went on to state that "the desire of the GSA to meet as a group to discuss matters pertinent to the challenges presented by their non-heterosexual identity and to build understanding and trust with heterosexual students sounds in the political speech addressed in Tinker."

Moore also noted "that the GSA's tolerance based message would not materially or substantially interfere with discipline in the operation of the school. In order for [the school board] to justify its refusals to recognize the GSA as a student organization, 'it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.' This is precisely what [the school board] has failed to do."

This order will allow the lesbian, gay, bisexual, transgender and straight students to meet on campus, just as other non-curricular clubs do, and discuss how to cope with the bullying, intolerance and discrimination they routinely face. GSAs across the state and country have been shown to help gay and straight students feel safer at school, and provide an open forum for students to discuss their fears, hopes and challenges.

"I'm so happy that the judge agreed we have a right to create a safe space for gay students at my school," said Brittany Martin, a 17-year old senior at OHS who is the GSA's president. She added, "All we've ever wanted was to have a club to talk about tolerance and harassment so we can try to make our school a better place for all students."

The ACLU filed the federal lawsuit in November 2006 after students at Okeechobee High School were denied access to meet on campus by their principal, Toni Wiersma. Then-senior Yasmin Gonzalez approached the ACLU and, after several failed attempts by the ACLU to convince the school to comply with the Federal Equal Access Act, the lawsuit was filed.

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