Federal Court Agrees with ACLU: Schools Can Protect Both Gay Students and Religious Speech

October 26, 2007 12:00 am

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CINCINNATI – A federal appeals court today agreed with the American Civil Liberties Union, ruling 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 court understood what we’ve been saying all along – that you don’t have to violate anyone’s First Amendment rights to protect gay and lesbian students from being harassed at school,” said Sharon McGowan, a staff attorney with the ACLU’s national Lesbian Gay Bisexual Transgender Project. “Respecting students’ rights to express their religious views about gay people and keeping gay students safe at school aren’t mutually exclusive, and schools can and should do both.”

Today’s 2-1 ruling from the U.S. Court of Appeals for the Sixth Circuit held that two things the school did went too far: a statement in the school’s training video that said students don’t have “permission” to say something when they disagree with another person’s view and a policy that said students couldn’t use language that has “the effect of insulting or stigmatizing an individual.” School officials have since removed those parts of the training and policy, but the plaintiff wanted a court to rule on their constitutionality.

The anti-harassment policy had been implemented as part of the settlement in an earlier lawsuit the ACLU brought on behalf of several students who were prevented from forming a gay-straight alliance (GSA) club at Boyd County High School. The Ashland, Kentucky 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.”

“All of us who were in the GSA know what it’s like to have our rights stomped on by our school, and we never wanted to see that done to anyone else,” said Libby Fugett, a former Boyd County High School student who was one of the plaintiffs in the first lawsuit. “The school finally has a training and policy that respects everybody’s rights, and that’s how it should be.”

The case decided today 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.

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.

Additional information about the Morrison case is available at www.aclu.org/lgbt/youth/25063res20050428.html

Information about the first case, Boyd High GSA v. Boyd Co. Board of Education, is available at www.aclu.org/lgbt/youth/25060res20050302.html

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