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Ohio School District Sued Over A Pronoun Policy and Other Speech Restraints: Parents Defending Education v. Olentangy Local School District Board of Education, et al., Case No. 2:23-cv-01595

Home-Blog-Civil Rights Violations-Ohio School District Sued Over A Pronoun Policy and Other Speech Restraints: Parents Defending Education v. Olentangy Local School District Board of Education, et al., Case No. 2:23-cv-01595

Governments often try to justify censorship as an effort to stop speech that the government claims is harmful, misleading or somehow improper.  A common target for these censorship efforts is “hate speech,” which government officials, media figures and political commentators claim “harms” individuals or somehow constitutes violence.  Despite these rationalizations, calls to ban “hate speech” are almost always an effort to prevent discussion or debate on a hot button social or cultural issue.  More precisely, these calls typically seek to prevent disfavored groups from sharing their ideas or countering the messages approved by government officials.

Efforts by government officials to silence opposing viewpoints are an affront to the First Amendment and the very idea of self-government.  Censorship of disfavored viewpoints is often associated with the promotion of the viewpoint the government supports.  For example, a school may bar students from saying biological males should not compete in women’s sports by claiming such statements represent “hate speech,” but at the same time, the school will teach children modern gender theory.

Censorship is not the only tool used to push a state-supported narrative.  Governments may also compel an individual to make statements with which that person does not agree.  While censorship silences dissenting views, compelling speech seeks to create the appearance of agreement by forcing dissenters to say what they don’t believe.  Compelled speech is also commonly associated with some form of censorship.  Under the First Amendment, both censorship and compelled speech are viewed as infringements on a person’s right to freedom of speech.

The plaintiffs suing the Olentangy Local School District Board of Education (“District”) allege that the District enacted two policies that (a) compel students to use a person’s preferred pronouns when addressing or talking about that individual, (b) sweep under the heading of harassment significant amounts of protected speech that opposes modern gender theory, and (c) limit the ability of students to express a large number of opinions critical of gender theory even when they are not in school.  The plaintiffs are primarily high school students and their parents.

The potential for conflict between First Amendment rights and antidiscrimination laws and policies is not a new phenomenon.  In recent years, however, the push to censor speech that someone might view as insulting, hateful or humiliating has increased, and this is particularly true in terms of issues concerning gender identity.  The plaintiffs allege, for example, that the “District prohibits speech that includes ‘discriminatory language,’ broadly defined as ‘verbal or written comments’ that are ‘derogatory towards an individual or group’ based on, among other things, ‘transgender identity.’”

The conflict between First Amendment rights and the new gender ideology is particularly acute, because gender ideology requires that individuals affirm the gender decisions made by others.  Transgender activists claim, for example, that refusing to recognize the self-identification of a transgender individual is equivalent to violence against that individual.  The correlation between disagreement and violence is not explained.  What the activists are really claiming is that disagreeing with their political theory is violence.  Under these conditions, freedom of speech is not acceptable or even possible.  Individuals have rights under the First Amendment that prevent governments from making the activist position law or policy.

With respect to the issue of compelled speech, the plaintiffs claim that the District’s policies force students to use the pronouns that a transgender individual demands that they use.  Separating pronouns from biological reality is based on an ideological belief system with which many disagree.  It is equivalent to forcing students to affirm the validity of modern gender theory.  This is an issue on which strong disagreement exists, and a school district has no business imposing this ideology on its students.  Under the First Amendment, the District, which is a state entity, should not be allowed to force students to affirm a belief system with which they disagree.

The plaintiffs allege that the District is trying to justify its pronoun policy on the ground that refusing to use a person’s preferred pronoun constitutes discrimination.  Refusing to accept someone’s belief system, however, is not discrimination.  Such an argument, if accepted, would constitute a grave threat to freedom of speech and expression, because it boils down to the claim that disagreement with the state-endorsed position is improper and wrongful.  While the government can tell an employer that it cannot discriminate on the basis of race or sex when hiring or firing individuals, the government cannot make it unlawful to uphold ideals that an individual finds reprehensible.

The plaintiffs also challenge the District’s effort to prohibit (censor) the expression of any viewpoints that disagree with modern gender theory.  The plaintiffs allege that a student could face discipline for “expressing opinions about the immutable nature of biological sex, using pronouns that are not a student’s ‘preferred pronouns,’ disagreeing with students’ assertion about whether they are male or female, stating that biological males who identify as female should not be allowed to compete in women’s sports, and expressing discomfort about sharing bathrooms with teachers or students of the opposite biological sex.”  The plaintiffs further allege that the prohibition on discussing gender issues does not cut both ways.  For example, the plaintiffs allege that in at least one classroom, the “walls were covered in flags that expressed one view about gender ideology.”

The plaintiffs allege that the District’s policies constitute viewpoint discrimination, and the policies clearly look like viewpoint-based discrimination.  Based on the plaintiffs’ allegations, a student could claim that biological males who identify as female should be allowed to use female bathrooms, but another student could not argue that bathrooms should be limited to those of the same biological sex.  This is a quintessential example of viewpoint discrimination.  As with compelled speech, viewpoint discrimination is treated harshly by courts.

The plaintiffs also allege that the District’s attempt to regulate student speech that takes place outside of school violates their children’s First Amendment rights.  The plaintiffs allege that one of the policies “prohibits students from using their own phones or other personal electronic devices ‘in any way that might reasonably create in the mind of another person an impression of being threatened, humiliated, harassed, embarrassed or intimidated.”  According to the plaintiffs, this policy “applies everywhere, including when students are at home or otherwise not engaged in school related activity.”

A school is extremely limited in its ability to limit what students say outside of school.  While it is possible to devise scenarios in which a statement made outside of school could have some impact on activities within the school, courts are going to show extreme skepticism regarding the school’s suggestion that it needs to, or legally can, control such speech.  First, whenever a school tries to control student speech that occurs outside of school, it is going to face an extremely heavy burden when demonstrating that the speech substantially and materially disrupts the school’s operations.  Second, a school’s trying to control a student’s speech outside of school is going to conflict with a parent’s right to control their child’s upbringing.  Schools are not parents, and when a school tries to control what children do outside of school, it is going to conflict with the fundamental right parents have to raise their children.

A public school is supposed to teach children respect for constitutional rights, particularly First Amendment rights.  Schools that engage in wide-ranging viewpoint discrimination are sending a terrible message to young children: censorship is good and freedom of thought and debate is only allowed when the government approves.  Schools that teach children to self-censor or face punishment for saying something contrary to the opinions held by the school’s administrators are teaching children a lesson inconsistent with the very concept of a free, open and democratic society.

The complaint brought against the Olentangy Local School District Board of Education is representative of a broader embrace of censorship by various levels of government.  While many censorship efforts are presented as efforts to stop hate speech or offensive speech, they are very frequently efforts to silence one side of a contentious political or cultural debate.  More importantly, there is no First Amendment exception to so-called hate speech, and governments cannot censor speech because some individuals, or even a majority of individuals, view the speech as insulting, offensive or degrading.  A free society cannot exist if the government is given the power to censor any speech that it decides may offend someone, and we cannot allow schools to teach children that the government has such power.

Free speech is a cornerstone of democracy, allowing individuals to express their ideas, challenge the status quo, and advocate for change. If your First Amendment Rights have been violated within a school district, our dedicated Chicago civil rights attorney is here to advocate for you and fight against any infringements on your freedom of speech. Get in touch with The Law Offices George M. Sanders today.

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