Thank you and Goodnight (and Some Thoughts on Anti-Gay Discrimination in Schools)

It has been an honor and a pleasure to be a small part of the Co-Op community these past two months. I learned a lot and had fun doing it! I’d like to thank everyone for their indulgence and comments, with special thanks to Danielle for inviting me in the first place.

For my final post, I would like to follow up on what is going on the Anoka-Hennepin School District in Minnesota.

In the mid-1990s, the District adopted a health curriculum policy prohibiting teachers from teaching that homosexuality is “normal” or a “valid lifestyle.” According to the anti-gay organization that lobbied the District to adopt that rule, “[t]he homosexual lifestyle does not reflect the community standards of District #11, nor is it regarded as a norm in society.” That policy was extended beyond the health curriculum in 2009, when the District adopted a so-called “no promo homo” rule and a neutrality policy that stated that “[t]eaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.”

In a Complaint from the Southern Poverty Law Center (SPLC) representing several students, the SPLC notes that the policies act “as a gag policy that prevents school officials from complying with their legal obligations to keep safe students like Plaintiffs who are perceived as LGBT or gender non-conforming. This gag policy requires District officials to enforce anti-harassment policies in the case of anti-LGBT bullying differently from other types of bullying. Teachers have understood the [policy] as inhibiting them from aggressively responding to anti-gay harassment, inside or outside the classroom. The gag policy also prohibits school staff from countering anti-gay stereotypes or presenting basic factual information about LGBT people, even when necessary to address anti-gay hostility within the student body. For example, pursuant to District guidance, the [policy] prohibits staff from even mentioning the fact that it is the position of the American Psychological Association that being gay is not a choice— a position that is the consensus of all major accredited and professional mental health organizations. The [policy] severely limits or outright bars any discussion by school officials of issues related to LGBT people in or out of the classroom, a limitation
that is not placed on any other category of persons.”

The SPLC raises Equal Protection, Title IX and Minnesota Human Rights Act arguments. The full Complaint is available here.

There are also free speech arguments. Do you think SPLC should have emphasized the ways in which Anoka-Hennepin’s policies infringe on the free speech rights of teachers?

There are roughly three kinds of policies schools can adopt regarding the teaching of homosexuality. Schools can write gay-tolerant or pro-gay curricula, where students are taught about all views on homosexuality but are affirmatively encouraged to tolerate and accept their gay and lesbian peers. On the opposite side of the spectrum are explicit “no promo homo” policies that include anti-gay instruction. This is like a failed 1992 Oregon ballot measure that would have required public schools to “recognize[] homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural and perverse and … to be discouraged and avoided.” These rules can also be less egregious, like Arizona’s 1995 AIDS instruction rule, which permitted instruction on HIV/AIDS, but prohibited any school from including “instruction which: Promotes a homosexual lifestyle. Portrays homosexuality as a positive alternate lifestyle. Suggests that some methods of sex are safe methods of homosexual sex.” And, then there are supposedly neutral policies of the don’t-ask-don’t-tell variety, where a state mandates that “any reference to … homosexuality … be eliminated from the curriculum,” or where a state bans teachers from mentioning the word gay in lessons, student interaction or in informal instruction. The Anoka-Hennepin school district in Minnesota has this kind of policy.

There is reason to believe that these policies are unconstitutional under current First Amendment law even though we do not have a definitive ruling on the subject. Recently, a federal district judge in Alabama struck down a state law which forbade any college or university from using public money to “promote[] a lifestyle or actions prohibited by the sodomy or sexual misconduct laws” as a First Amendment violation. Federal courts have also struck down state laws that would have allowed schools to fire teachers for advocating pro-gay policies in public (National Gay Task Force v. Board of Education of Oklahoma City). Also, in a plurality opinion in Board of Education v. Pico, Justice Brennan argued that students have a constitutional “right to know” accurate information about sexuality. That interpretation is unsettled, but Justice Burger’s dissent in Pico suggests that if schools undertake sex education in the first place, they have to present it accurately. But, what is “accurate”? A number of state courts have found that it is entirely appropriate to advocate, say, abstinence as something teenagers should adopt in their daily lives, while not including any reference to homosexuality. But, still, free speech rights of teachers and students are implicated.

In any event, while the issue is unsettled, we can make a clear and persuasive case that even supposedly neutral “no promo homo” policies are unconstitutional content-based restrictions on speech. The First Amendment does not allow states to ban certain types of picketing but not others (Police Department of Chicago v. Mosley) or certain types of hate speech but not others (R.A.V. v. St. Paul). Policies that ban an entire topic of discussion are similar — they single out one type of content for censorship. Anoka-Hennepin’s policies ban teachers from talking about an entire topic in and out of the classroom. Even if we set aside curricular neutrality for the moment, Anoka-Hennepin’s policies prevent teachers from mentioning the word “gay” anytime students could hear or discussing anti-gay bias as an illegitimate reason for abuse, harassment and bullying. Therefore, the District is not only setting out curricular requirements — which may not raise free speech concerns — but is also telling teachers what they can and cannot say outside the classroom.

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1 Response

  1. Howard Wasserman says:

    I don’t think a First Amendment claim would work, in light of the more-robust government speech doctrine and Garcetti, both of which developed well after Brennan’s opinion in Pico. The government has fairly extensive control over what the school curriculum and sponsored non-curricular activities will be. And in talking (or not) about LGBT issues and trying to prevent LGBT bullying, teachers are speaking as part of their jobs within the meaning of Garcetti.