At first the case seemed simple. A student in a high school English class said, out loud, “Take all the fucking faggots out in the back woods and kill them.” Aside from wondering what book they may have been discussing—Mein Kampf?—most people would agree that this was crossing the boundary of acceptable behavior and speech in the classroom. This incident was one of many—including an official school district policy prohibiting students from forming a Gay-Straight Alliance (GSA) in Boyd County High School—that caused a federal judge in 2004 to order the Kentucky school district to institute an anti-harassment policy and a mandatory sensitivity and anti-harassment training program. The court case was filed by the ACLU on behalf of a group of students.
The court-ordered program was implemented and policy and training programs were put into place. Then in 2005 the Alliance Defense Fund, a Scottsdale, Arizona Christian law group funded and managed by over 30 conservative Christian churches and organizations, filed a complaint on behalf of Timothy Allen Morrison who asserted that the policy and program had a chilling effect on his ability to profess his Christian beliefs, in this case, opposition to homosexuality. Once again the ACLU jumped into the fray, this time on behalf of Morrison’s free speech rights.
The main issues in this case related to: (1) a training video where a clinical psychologist states that “you will go through life meeting many people with whom you are in disagreement and think are wrong, but that just because you believe that does not give you permission to say anything about it. It doesn’t require that you do anything. You just respect, you just exist, you continue, you leave it alone”; and (2) an anti- harassment policy that prohibited speech “that would have the effect of insulting or stigmatizing someone.”
When faced with the lawsuit, the school district made some policy changes, including taking out the “permission” segment of the video, allowing students to opt out of the training and exempting any speech (outside of school) that would be protected by the First Amendment.
Following these changes, Morrison (and his lawyers) tried to sue for damages, but the lower court ruled against him. Morrison then wanted the court to judge on the constitutionality of the case, i.e., whether there is a religious right to speak against homosexuality in the school setting.
In a recent twist, the U.S. 6th Circuit Court of Appeals ruled 2-1 in October 2007 that the Boyd County school district’s policy did indeed “chill” Morrison’s ability to speak Christian beliefs publicly, in particular his opposition to homosexuality, thus sending the ball back to U.S. District Judge David Bunning to assess damages.
Morrison’s attorney, Joel Oster, claimed that this latest decision amounted to a victory on the constitutionality of the issue. The ACLU team also claimed victory as they had maintained all along that no one’s speech rights should be abridged and that both rulings were correct.
While this looks like a good outcome, there are some lingering questions. Morrison claimed that mandatory attendance at the training was an infringement of his rights, so the school district made attendance optional, a move that could undercut its effectiveness. Also, while the right to speak about religious beliefs is now possible, the specifics of that speech may be problematic. Will devout students hand out leaflets detailing their church’s interpretation of biblical passages that they claim condemn homosexuality or will they wear T-shirts that say, “Queers, Burn in Hell.”
Even though the court made the correct decision and the ACLU was right in supporting Morrison’s challenge to the original decision and there should be complete freedom for both religious and personal speech —i.e., the ability to support gay rights and the safety of LGBT students—this will not settle the issue.
The reality is that the Alliance Defense Fund and its supporters and allies have no interest in creating a level playing field for free speech. In general, their aim has always been to contain, regulate, and, if possible, limit or stop free speech related to homosexuality. This is less because they actually view homosexuality and homosexual activity as a sin, but more because fundamental to the right-wing political and social agenda is their attempt to roll back the gains made in sexual liberation, feminism, racial equality, and a myriad of economic and social reforms.
So this current battle over gay rights in schools is not about freedom of speech. The right-wing agenda is not interested in free speech because they constantly re-frame and distort the simple act of “coming out”—the right to say who you are without suffering for it.
The ACLU did what the ACLU does best: defend the Constitution and the Bill of Rights. But let’s not think that the Alliance Defense Fund, or any of the other right-wing legal organizations and non-profits, are in any way interested in the same freedom of speech. That would be a profound misunderstanding of their interests and how they operate in the world today.
Michael Bronski is an activist, teacher, and freelance writer of numerous articles and books. His latest book is Pulp Friction (St. Martin’s Press).