ACLU Tells Federal Court It Can Protect Both Gay Students and Free Speech

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CINCINNATI - The American Civil Liberties Union today told the U.S. Court of Appeals for the Sixth Circuit that a school policy designed to protect lesbian, gay, bisexual, and transgender students from harassment went too far in squelching the right of some religious students to express their views on homosexuality. The group insists, however, that schools can protect students from anti-gay harassment constitutionally.

"We've always believed that it's entirely possible for schools to enact policies that keep gay and lesbian students safe while still respecting the First Amendment rights of students who hold anti-gay beliefs, said Sharon McGowan, a staff attorney with the ACLU's national Lesbian and Gay Rights Project. "There's a huge difference between telling students that they shouldn't harass or attack others and censorship. Schools have a constitutional obligation to respect all students' right to be and express themselves."

The anti-harassment policy was implemented as part of the settlement in a lawsuit the ACLU brought on behalf of Fugett and several other students who were prevented from forming a GSA club at the Ashland, Kentucky high school. The school district agreed to implement a training and policy in 2004 after a federal judge found that there was a widespread problem with anti-gay harassment in the school, including one incident in which students in an English class stated that they needed to "take all the fucking faggots out in the back woods and kill them."

Present at the courthouse were three of the students who first requested to form a gay-straight alliance club to counter rampant anti-gay harassment at the school in March of 2002. "We wanted to be here for the hearing because we want to remind people what this whole thing is all about," said Libby Fugett, a former Boyd County High School GSA founding member who is now a college sophomore with plans to attend law school. "Harassment against gay students and their friends is a huge problem at Boyd County High School, and we want the court to remember that all students need to feel safe at school."

Morrison v. Boyd County Board of Education was brought in 2005 by an anti-gay legal organization, which claimed that the training and policy violated the religious freedom and free speech rights of students who are opposed to it. The ACLU, representing former student plaintiffs in its original case, joined the lawsuit to help defend the school's ability to conduct the training and to support all students' free speech rights.

Some parts of the case have already been resolved, with school officials altering the training and policy to better protect students' First Amendment rights. The U.S. Court of Appeals for the Sixth Circuit now must consider only whether the original anti-harassment policy went too far. While the ACLU agrees that the original policy overstepped students' First Amendment protections, the ACLU is asking the court to find that it is possible for the school to adopt an anti-harassment policy that also protects students' right to free speech.

The case is Timothy Allen Morrison, II, et al., v. Board of Education of Boyd County, Kentucky.
The former GSA students are represented by Sharon McGowan and Ken Choe of the ACLU's Lesbian Gay Bisexual Transgender Project, and David Friedman and Bill Sharp of the ACLU of Kentucky.

Additional information about the Morrison case is available at http://www.aclu.org/lgbt/youth/25063res20050428.html.

Information about the first case, Boyd High GSA v. Boyd Co. Board of Education, is available at http://www.aclu.org/lgbt/youth/25060res20050302.html.