ACLU tells Federal
Court it can protect both gay students and free speech From the ACLU
CINCINNATI - The American Civil Liberties Union today told the U.S. Court
of Appeals for the Sixth Circuit that a school policy designed to protect
lesbian, gay, bisexual, and transgender students from harassment went too
far in squelching the right of some religious students to express their
views on homosexuality. The group insists, however, that schools can
protect students from anti-gay harassment constitutionally.
"We've always believed that it's entirely possible for schools to enact
policies that keep gay and lesbian students safe while still respecting
the First Amendment rights of students who hold anti-gay beliefs, said
Sharon McGowan, a staff attorney with the ACLU's national Lesbian and Gay
Rights Project. "There's a huge difference between telling students that
they shouldn't harass or attack others and censorship. Schools have a
constitutional obligation to respect all students' right to be and express
themselves."
The anti-harassment policy was implemented as part of the settlement in a
lawsuit the ACLU brought on behalf of Fugett and several other students
who were prevented from forming a GSA club at the Ashland, Kentucky high
school. The school district agreed to implement a training and policy in
2004 after a federal judge found that there was a widespread problem with
anti-gay harassment in the school, including one incident in which
students in an English class stated that they needed to "take all the
fucking faggots out in the back woods and kill them."
Present at the courthouse were three of the students who first requested
to form a gay-straight alliance club to counter rampant anti-gay
harassment at the school in March of 2002. "We wanted to be here for the
hearing because we want to remind people what this whole thing is all
about," said Libby Fugett, a former Boyd County High School GSA founding
member who is now a college sophomore with plans to attend law school.
"Harassment against gay students and their friends is a huge problem at
Boyd County High School, and we want the court to remember that all
students need to feel safe at school."
Morrison v. Boyd County Board of Education was brought in 2005 by an
anti-gay legal organization, which claimed that the training and policy
violated the religious freedom and free speech rights of students who are
opposed to it. The ACLU, representing former student plaintiffs in its
original case, joined the lawsuit to help defend the school's ability to
conduct the training and to support all students' free speech rights.
Some parts of the case have already been resolved, with school officials
altering the training and policy to better protect students' First
Amendment rights. The U.S. Court of Appeals for the Sixth Circuit now
must consider only whether the original anti-harassment policy went too
far. While the ACLU agrees that the original policy overstepped students'
First Amendment protections, the ACLU is asking the court to find that it
is possible for the school to adopt an anti-harassment policy that also
protects students' right to free speech.
The case is Timothy Allen Morrison, II, et al., v. Board of Education of
Boyd County, Kentucky.
The former GSA students are represented by Sharon McGowan and Ken Choe of
the ACLU's Lesbian Gay Bisexual Transgender Project, and David Friedman
and Bill Sharp of the ACLU of Kentucky.
