The Volokh Conspiracy
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Court Rejects First Amendment Challenge to School District's Ban on Students "Misgendering" Classmates
From Chief Judge Algenon Marbley (S.D. Ohio) today in Parents Defending Education v. Olentangy Local School Dist. Bd. of Ed.:
The Board of Education for the School District has issued several policies regarding harassment, bullying, and the use of personal communication devices that are intended to "maintain an education and work environment that is free from all forms of unlawful harassment." To that end, Policy 5517 prohibits students from engaging in discriminatory harassment or bullying based on the personal characteristics of other students, such as their race, national origin, sex, disability, religion, or ancestry. Similarly, Policy 5136 prohibits students from using their personal devices to send messages that threaten, humiliate, harass, embarrass, or intimidate other students. And lastly, the Code of Conduct prohibits speech that involves "discriminatory language," including the intentional misgendering of transgender students—i.e., failing to address a student by their preferred pronouns….
[The Court denies plaintiff's motion for a preliminary injunction] because [plaintiff] has failed to establish a substantial likelihood of success on its First Amendment claim.
While schoolchildren do not wholly "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate," Tinker v. Des Moines Indep. Cmty. Sch. Dist. (1969), kindergarten through 12th grade ("K-12") educators nevertheless retain "comprehensive authority … consistent with fundamental constitutional safeguards, to prescribe and control conduct in the schools." Thus, public schools are permitted to proscribe student speech that "materially disrupts classwork or involves substantial disorder or invasion of the rights of others."
The challenged speech policies fit squarely within this carve-out to schoolchildren's First Amendment rights: they prohibit only speech that gives rise to fears of physical or psychological harm, materially affect student performance, substantially disrupt the operation of the school, or create a hostile educational environment. Ultimately, transgender youth are far too often subject to harassment and bullying in public schools. They are threatened or physically injured in schools at a rate four times higher than other students. They are harassed verbally at extraordinarily high rates. More than one in five attempt suicide.
Allowing speech that creates a hostile environment for transgender students can have devastating consequences—reinforcing feelings of isolation and inferiority, imposing substantial psychological injuries that result in decreased school attendance and performance, and heightening the risk of serious physical harm. School policies intended to reduce the pervasive harassment of transgender students, in other words, advance public schools' mission of ensuring that all students have an opportunity to learn and grow in an environment "most conducive to speculation, experiment and creation."
Nor do the likely merits of the Fourteenth Amendment [parental rights] claim favor PDE. The fundamental right of parents to direct the care, upbringing, and education of their children does not encompass a right "generally to direct how a public school teaches their child" or how the school disciplines their child. {There is nothing in the Policies that suggests that they prohibit parents from discussing gender identity issues with their children, or reach in some other way into the privacy of families' homes. Nor is there any suggestion that the Policies extend to speech unrelated to school, school activities, or fellow students.} This Court, mindful that "[b]y and large, public education in our Nation is committed to the control of state and local authorities," declines PDE's invitation to second-guess Defendants' efforts to combat harassment in the Olentangy Local School District….
