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Principal is scolded
Student had right to support gay classmates

The National Law Journal
Monday, December 15, 2008

On Oct. 21, Heather Gillman received the Hugh M. Hefner First Amendment Award for her brave defense of the rights of homosexual students at her high school in the tiny Bible Belt town of Ponce de Leon, Fla. Nine months earlier, the then-11th-grader sued the school board and principal David Davis to end what District Judge Richard Smoak later described as Davis' "relentless crusade" to suppress speech declaring tolerance for gays and lesbians. The court gave Gillman and her American Civil Liberties Union lawyers a victory when it enjoined the defendants' conduct and barred any retaliation against the plaintiff and other supporters of equal treatment for homosexuals. Gillman v. School Bd. for Holmes County, Fla., No. 5:08-cv-34 (N.D. Fla. July 24, 2008). Gillman, who is heterosexual, exemplifies a growing trend among the young to stand up for gay classmates. Yet when high-minded students take on not only their homophobic fellows but also adult bigots like Davis, the resulting confrontations on campus can turn into a courtroom battle.

The landmark Tinker decision in 1969 sustained the right of teenage plaintiffs to wear black armbands on school premises in protest of the Vietnam War. Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503. Justice Abe Fortas wrote that the authorities had to allow such symbolic speech unless they could reasonably predict that it would result in "substantial disruption of or material interference with school activities" or a "collision with the rights of other students to be secure and to be let alone." Subsequent holdings cut back on Tinker to some degree, permitting greater restrictions of expression that is school-sponsored, or vulgar or obscene, or that encourages unlawful drug use. But the court has not jettisoned its basic principle: School officials may not forbid student speech merely to avoid controversy.

Gillman's triumph should not obscure the fact that her case was, atypically, a clear winner. The lawsuit arose from principal Davis' reaction to an incident involving a senior who complained that some students had verbally abused her for being a lesbian. Among other things, he rebuked her because of her sexual orientation and informed her parents about it. When Gillman and other students responded by sporting pro-gay slogans and symbols, the principal embarked on a "witch hunt" against homosexuals — ordering them not to discuss their status and forbidding expressions of solidarity with them. In addition, Davis suspended 11 students for allegedly threatening to walk out of an assembly, belonging to a "secret society" or "illegal organization," and causing disruption.

The court gave short shrift to the defense's arguments. Calling the principal's testimony "disingenuous," it found that Davis had "victimized" the victim. Further, it concluded that Davis' own conduct had prompted any unrest at the school — which, moreover, was immaterial and insubstantial; by contrast, the targeted students' activities had not impinged on their colleagues' rights. The judge ridiculed Davis' attempt to portray the "innocuous" phrases at issue (like "I Support My Gay Friends") as sexually suggestive, determining that the speech's ban was actually driven by animosity toward the ideas that it expressed. In these "extraordinary" circumstances, the court had no trouble in ruling for Gillman from the bench.

Other cases present greater problems, however. For example, Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), illustrates the tensions created by the "reverse-Gillman" situation. In response to a "Day of Silence" held to promote tolerance of gays, a high school student wore a T-shirt with messages denouncing homosexuality as "shameful" and condemned by God. When he refused to take it off, the principal made him remain in the office for the day but declined his request to be suspended; he subsequently sued. On appeal, the 9th U.S. Circuit Court of Appeals affirmed the lower court's denial of his request for injunctive relief. According to Judge Stephen Reinhardt, officials may restrict "injurious speech that strikes at a core identifying characteristic of students on the basis of their membership in a minority group," since verbal attacks may lead vulnerable youngsters to question their self-worth and place in society.

Dissenting Judge Alex Kozinski acknowledged the difficulty of balancing the rights to voice an opinion and to be free of harassment on campus. He also raised troubling questions, such as: Who should qualify for protection in a "majority-minority" school, and at what level of generality should one define minority status for subgroups of a majority group?

Notwithstanding these unresolved issues, one can applaud the plainly correct result in Gillman. Gillman remarked that she was happy she had sued "because the First Amendment is a big deal to everyone." Indeed, it is.