Removing High School Student from Class for Saying “I Don’t Accept Gays” Violates First Amendment

So holds yesterday’s decision in Glowacki v. Howell Public School Dist. (E.D. Mich. June 19, 2013):

Members of the Howell High School Gay Straight Alliance wanted to participate in a national campaign aimed at raising awareness of the bullying of gay, lesbian, bisexual, and transgendered youth on October 20, 2010. As such, the student group submitted a flyer its members hoped to post around the high school with information about Anti-Bullying Day to Principal Aaron Moran. The flyer, which was ultimately approved and placed throughout the school, identified October 20, 2010 as Anti-Bullying Day and asked students and teachers to wear the color purple in recognition of the day. Other than approving the posting of the flyer, the school did not sanction activities or events in connection with Anti-Bullying Day.

[Defendant Jay McDowell, one of plaintiff Daniel Glowacki’s teachers] wore a purple … t-shirt to school on Anti-Bullying Day. Before proceeding with his lesson plans that day, McDowell engaged his students in a brief discussion about bullying and showed a short video about an individual who committed suicide as a result of being bullied due to his sexual orientation. This presentation caused no problems until McDowell’s sixth hour class.

As students began filtering into McDowell’s economics class, McDowell noticed a female student wearing a Confederate flag belt buckle and asked that she remove it. Daniel, who arrived to class a “little late,” witnessed this interaction. From this point forward, the events in question become muddled as the participants and witnesses have different versions.

During his deposition, Daniel testified that after the student removed her belt buckle, class began and McDowell “started to explain about … his purple shirt, what it represented and what it meant.” At this time, Daniel “calmly raised [his] hand” and asked McDowell why the female student could not wear a Confederate flag belt when students and teachers could wear purple shirts and display rainbow flags. McDowell responded by explaining “the difference in symbolism between the Confederate flag and the rainbow flag.”

According to Daniel, this explanation included statements “that the [C]onfederate flag represented [the] hanging and slashing of [African Americans], [] that it wasn’t allowed in his classroom[,] [a]nd that it was discrimination against blacks[.]” Daniel then apparently voiced his concern that the purple shirts discriminated against Catholics. McDowell testified that after providing the symbolism explanation Daniel said “I don’t accept gays.” According to McDowell, he told Daniel that he could not say that in class, to which Daniel responded “I don’t accept gays because I’m Catholic.”

In a written statement concerning what transpired in his classroom, McDowell indicated that he conveyed to Daniel that it was fine if Daniel’s religion was opposed to homosexuality but that saying such things was inappropriate in a classroom setting. McDowell admits that he became emotional during this discussion but tried to illustrate the statement’s inappropriate nature by analogy. McDowell explained that one cannot say “I don’t accept gays” any more than one can say “I don’t accept blacks.”

McDowell “then asked [Daniel] if he accepted gays or not. [Daniel] said he did not.” At this point, “[McDowell] threw [Daniel] out of class and wrote up a referral for unacceptable behavior.” At this point, another student asked, “I don’t accept gays either[,] can I leave[?]” McDowell said yes….

After Daniel and the other student departed, those remaining in the classroom asked “why [McDowell] had thrown them out and why didn’t they have free speech.” McDowell “explained that a student cannot voice an opinion that creates an uncomfortable learning environment for another student.”

As a result of the above-described interaction, the School District conducted an investigation. Although Daniel was removed from class, all record of any discipline was removed from Daniel’s file and he was placed in another economics class by parental request.

The School District did, however, issue McDowell a reprimand. The written reprimand provided that McDowell “disciplined two students for holding and stating personal beliefs, to which you disagree. You disciplined them in anger under the guise of harassment and bullying because you opposed their religious belief and were offended by it. The students were causing no disruption to the educational process.” The reprimand further indicated that McDowell “discipline[d] two students who told you that they do not accept gays due to their religion. After a failure of getting one student to recant, you engaged in an unsupported snap suspension, rather than allow the student his beliefs.” The reprimand opined that McDowell “modeled oppression and intolerance of student opinion . . . This could be construed as teacher-to-student bullying; ironic of the AntiBullying Day intent.” The School District suspended McDowell for one day without pay and ordered McDowell to participate in First Amendment training.

After McDowell filed a grievance, the School District reduced the sanctions and replaced the initial reprimand with a far tamer one. The replacement provided: “You are receiving a written reprimand after an investigation into an incident that occurred in your classroom substantiated that you displayed a serious lack of professionalism when you slammed your door, raised your voice and attempted to discipline students for their beliefs. These actions were in violation of District policies and guidelines.” …

[S]chool authorities may regulate student speech if it “impinge[s] upon the rights of other students[]” or “substantial[ly] disrupt[s]” school activities. Tinker v. Des Moines Indep. School Dist.. The Court finds that Daniel’s comments did neither and that his Anti-Bullying Day speech was therefore protected by the First Amendment’s Free Speech Clause.

i. Impinging upon the Rights of Other Students

McDowell argues that Daniel’s speech was not protected because Daniel’s statement “I don’t accept gays” was a “bullying statement[]” that intruded upon the rights of at least one homosexual student in his classroom. It intruded upon at least one student’s rights because McDowell “suspected there were gay students in the classroom[,]” “felt [Daniel]’s statement was a form of threat to the other students[,]” interpreted Daniel’s speech to constitute “a bullying remark[,]” and because “[o]ther students felt upset by the comment made by [Daniel.]”

[Footnote:] McDowell also contends that the speech was not protected because “[P]laintiff did not insert ‘religion’ into the discussion until after he made the bullying statement.” The Court finds this line of argument unpersuasive as student speech is protected regardless of whether or not such speech is religiously motivated.

While the Court certainly recognizes that schools are empowered to regulate speech to prevent students from invading the rights of other students, “people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life.” Relatedly, a “[l]isteners’ reaction to speech is not a content-neutral basis for regulation.” While a student or perhaps several students may have been upset or offended by Daniel’s remarks, “Tinker straight-forwardly tells us that, in order for school officials to justify prohibition of a particular expression of opinion, they must be able to show that this ‘action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’” Simply put, the law does “not establish a generalized ‘hurt feelings’ defense to a high school’s violation of the First Amendment rights of its students[.]” Perhaps recognizing the thin reed on which his impinging upon the rights of others argument hangs, McDowell attempts to distinguish a district court case which held that a student’s anti-gay t-shirt did not impinge upon the rights of other students by suggesting that if the words had been spoken as opposed to merely written on a t-shirt, the outcome would have been different. The Court is not persuaded. The Court does not believe that Daniel’s comments, addressed as they were to McDowell during a classroom discussion initiated by McDowell, impinged upon the rights of any individual student…. McDowell “point[s] to no authority interpreting what ‘invasion on the rights of others’ really entails.” Language from Tinker implies that some sort of threat or direct confrontation is a necessary predicate. In holding that students had a right to wear black armbands as a sign of protest against the hostilities in Vietnam, the Tinker Court explained there was “no evidence . . ., actual or nascent, . . . of collision with the rights of other students to be secure and to be let alone.”

There is no indication from the evidence here that the negative comments Daniel made about homosexuality threatened, named, or targeted a particular individual or, for that matter, that Daniel even knew that there was a homosexual student in his economics class. Given that the speech did not identify particular students for attack but simply expressed a general opinion — albeit one that some may have found offensive — on the topic of homosexuality, the Court finds that Daniel’s expressive conduct did not impinge upon the rights of other students. See generally Emily G. Waldman, A Post-Morse Framework for Students’ Potentially Hurtful Speech (Religious and Otherwise), 37 J.L & Educ. 463, 468-69, 499- 503 (2008) (suggesting a framework for analyzing potentially hurtful student speech by asking whether the speech was directed at a particular individual, and if not, assessing the impact of such speech on the educational performance of students hearing the speech).

ii. Substantial Disruption

The Court is also not persuaded by McDowell’s argument that Daniel’s speech was unprotected because it caused a substantial disruption. While legal authority suggests that “[s]chool authorities are entitled to exercise discretion in determining when student speech crosses the line between hurt feelings and substantial disruption of the educational mission, because they have relevant knowledge of and responsibility for the consequences[,]” McDowell made an inaccurate assessment of whether Daniel’s speech crossed that line.

McDowell offers two pieces of evidence in support of this substantial disruption argument: (1) Daniel apologized for disrupting class the day after the incident; and (2) “another student believed he could get out of class also by joining the plaintiff’s opinion.” Even assuming this evidence shows that Daniel’s remarks caused a disruption, Tinker requires a material and substantial disruption with school activities. A material and substantial disruption “might include a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school[.]” There is simply no evidence that a disruption of this magnitude occurred.

The court goes on to conclude that McDowell’s action was based on Daniel’s viewpoint, and thus violated the First Amendment; it also concludes that “because the undisputed material facts establish that McDowell should have understood that his conduct was unlawful, he is not entitled to qualified immunity with respect to Plaintiffs’ request for nominal damages.” The court holds that the school district, though, isn’t liable, largely because its policies are consistent with Tinker, and because the teacher wasn’t applying those policies here (or at least wasn’t applying them correctly, given the text of the policies). “[E]ven if McDowell believed he acted in accordance with the policies when removing Daniel from class, a teacher’s mistaken belief that the School District adopted a policy tolerating unconstitutional restrictions of expression ‘does not show that the District deliberately adopted such a policy,’ nor does it show that the policies caused the constitutional injury.”

Thanks to School Law Blog (Education Week) for the pointer.

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