Dispatches from the Creation Wars

Morrison v. Boyd Co. Board of Education is a very interesting case in many respects. It started a few years ago as a typical GSA case – the school refused to allow the formation of a Gay-Straight Alliance club, the students sued and won. The judge found that there was a serious problem with bullying and harassment of gays (and anyone perceived to be gay) at the Kentucky school, including at least one incident where a student declared in an English class that they needed to “take all the fucking faggots out in the back woods and kill them.”

Part of the settlement that the school agreed to was that, in addition to recognizing the GSA as a student group, they would require anti-harassment training for all employees and students to help lessen this problem. In February 2005, the ADF filed suit against the school district, arguing that it was unconstitutional to force students to listen to beliefs that conflict with their own; on that, the ADF was clearly wrong.

But there was a second issue as well, what amounts to an as applied challenge, which claimed that the school board’s anti-harassment policies were overly broad and would constrain constitutionally-protected speech. And on this matter, the ACLU ended up intervening in the case, on behalf of several students, and agreeing with the ADF that the policy was overly broad and should be declared unconstitutional. The suit is now in the 6th circuit court of appeals, which heard oral argument this week.

The ACLU filed a brief agreeing with the ADF about the overly broad nature of the anti-harassment policy (see that brief here). They disagreed on the issue of whether the school could hold the diversity seminars, but agreed on the speech restrictions, saying:

Although schools may implement policies and practices designed to preserve order and to ensure that all students have the ability to learn in a safe and supportive environment, there are constitutional limits on how far schools may go in restricting student speech. Because the Board’s 2004-2005 anti-harassment policies prohibited not only speech that caused substantial disruption or invaded the rights of other students but also speech that had the “the effect of insulting or stigmatizing an individual,” the Board violated the First Amendment. The Board also ran afoul of the Constitution by telling students in the Fall 2004 training video that they were not permitted to engage in constitutionally protected speech.

The ACLU is taking a very nuanced position here, and I think a correct one. Certainly the school has a compelling interest in fostering respect for all students and in teaching students that it is wrong to harass or bully someone because they’re different (whatever the source of that difference may be), but the school, as a government agency, is limited in what it can do to punish contrary speech by the first amendment. And overly broad speech restrictions are as unconstitutional in a school setting as they are anywhere else. The ACLU brief argues:

In the school setting, however, questions of overbreadth and vagueness are incorporated into the Tinker analysis. Therefore, although courts are more willing to tolerate some restrictions on speech in school (as opposed to speech restrictions imposed on the general public), a school disciplinary policy that proscribes more
speech than allowed by Tinker is by definition constitutionally overbroad. See, e.g., Rivera v. East Otero Sch. Dist., 721 F. Supp. 1189, 1197 (D. Colo. 1989) (“Courts routinely strike down school prohibitions on speech [as overbroad] where there is no express requirement that the speech be disruptive, and hence unprotected under Tinker.”) Likewise, schools must draft any policies regulating student speech with sufficient specificity so as to give students adequate notice as to what speech will subject them to punishment. Sypniewski, 307 F.3d at 266 (“[W]ithout ‘fair notice’ of [a] regulation’s reach, . . . [students will] ‘steer far wider of the unlawful zone than if the boundaries of the forbidden areas were clearly marked.’”) Therefore, even though a policy is not unconstitutionally vague simply because its terms are not susceptible to an authoritative definition, a school disciplinary code must
nevertheless be drafted in a way that requires students to conform their conduct to a “comprehensible normative standard.”

This is a very reasonable position for the ACLU to take, one that allows schools to fulfill their compelling interest in teaching respect for diversity while protecting freedom of speech by requiring any regulations on anti-gay speech to be drawn narrowly and within the boundaries of that compelling interest.