“I Support My Gay Friends”: Free Speech is Alive and Well in the Schools of the Florida Panhandle
by Richard Fossey - August 18, 2008
In Gillman v. School Board for Holmes County, a federal trial judge held that Heather Gillman, a Florida high school student, had a constitutional right to express her support for gay and lesbian rights while she is at school. The facts of the case, as the judge said himself, are extraordinary. In essence, the judge upheld the right of Florida high school students to express their support for gay and lesbian classmates over the opposition of a principal who was openly hostile to homosexuality and a school board that backed the principal’s position.
In late July, Judge Richard Smoak, a federal trial judge in northern Florida, issued a stirring decision in Gillman v. School Board for Holmes County (2008), a decision that will be remembered for a long time as one of the great judicial defenses of a students right to free speech in the schools. The facts, as Judge Smoak said himself, are extraordinary. In essence, the judge upheld the right of a Florida high school student to express her support for gay rights over the opposition of a principal who was openly hostile to homosexuality and a school board that backed the principals position.
The Gillman case: Students Are Banned from Expressing Their Support for Gay Classmates
Here are the facts that Judge Smoak found to be true after a two-day trial. In September 2007, Jane Doe, a twelfth grade student at Ponce de Leon High School in the Florida panhandle, told a teachers aide that she had been taunted by a group of middle-school students because they perceived her to be gay. The aide reported the incident to David Davis, the high school principal, and Davis called Jane into his office to discuss the incident.
At this meeting, Principal Davis asked Jane, Are you a Lesbian? Jane replied in the affirmative, and Davis counseled her that it was not right to be homosexual. Davis then asked Jane if her parents knew she was a lesbian. Jane indicated that her parents did not know, and Davis asked Jane for her parents telephone number so that he could call them and inform them of her sexual orientation (p. 3). Davis told Jane to stay away from the middle school students or he would suspend her from school. Jane was in tears when she left Daviss office.
Jane did not attend school the following day, and rumors circulated among students that Davis had suspended her for being a lesbian. Some students expressed their support for Jane by writing GP or Gay Pride on their bodies, yelling Gay Pride in the hallways, and circulating petitions expressing support for gay rights.
A short time later, the school invited a so-called anti-gay minister to speak at a morality assembly. Some students discussed walking out of the assembly in peaceful protest, but the minister did not speak on the subject of homosexuality. No student walked out of the assembly, which took place peacefully.
Shortly after this assembly, Davis conducted an investigation into what had come to be known as the Gay Pride movement at Ponce de Leon High School. Davis questioned about 30 students, asking some of them about their sexual orientation, and interrogating them about the planned walk out at the assembly. During those meetings, the court wrote, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing Gay Pride or GP on their arms and notebooks. In addition, Davis directed students to wash GP or Gay Pride off their bodies and lifted the shirts of female students to verify that no such writings were present on their bodies (p. 4).
After conducting his investigation, Davis issued five-day suspensions to eleven students for their involvement in the Gay Pride movement. Davis defended the suspensions on the grounds that the students belonged to a secret society or illegal organization forbidden by school policy; had threatened to walk out of the recent assembly, and had disrupted the school (pp. 4-5).
A little more than a month after Davis suspended the eleven students, Heather Gillman, a student at Ponce de Leon High School, entered the narrative of events. On November 2, 2007, Heather wrote a letter through her attorney to the Holmes County School Board. (She was joined in the letter by a cousin.) In this letter, Heather asked the board whether it would tolerate certain forms of student expression in support of gay rights. In particular:
Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: Equal, Not Special Rights, Gay? Fine By Me, Gay Pride or GP, I Support My Gay Friends, I Support Gays, God Loves Me Just the Way I Am, I'm Straight, But I Vote Pro-Gay, I Support Equal Marriage Rights, Pro-Gay Marriage, Sexual Orientation is Not a Choice. Religion, However, Is.
In short order, the school board replied to Heathers letter with a letter of its own. The board said that none of the expressions listed in Heathers letter could be displayed at school. The board justified its decision by saying that the phrases were indications of membership in a secret organization and that the phrases were disruptive. In support of its position, the board specifically cited the planned student walkout at the morality assembly.
Gillman Sues the Holmes County School Board
Not long after this exchange of letters, Heather sued the Holmes County school board, asking a federal court to uphold her right to free speech under the First Amendment. She said in her complaint that she wished to express some of the statements that the school board had prohibited but had not done so out of fear that she would be punished.
Ultimately, Heathers suit went to trial, and Judge Smoak heard testimony for two days. When the trial ended, the judge ruled in Heathers favor and awarded her $325,000 in attorney fees.
In essence, Judge Smoak ruled that Heather had a First Amendment right to express her support for gay students while at school and that the school board had engaged in viewpoint discrimination when it had banned that speech. According to the judge, students had a constitutional right to speak in the school environment that could not be censored by school authorities unless the speech was disruptive.
Judge Smoak rejected the school boards argument that the pro-gay speech that Heather Gillman championed was disruptive or sexual in nature. On the contrary, the speech was political, the judge wrote, and motivated by the desire of Ponce de Leon High School students to express their support for their classmate Jane Doe.
As Judge Smoak noted, the facts of the case were extraordinary:
The Holmes County School Board has imposed an outright ban on speech by students that is not vulgar, lewd, obscene, plainly offensive, or violent, but which is pure, political, and expresses tolerance, acceptance, fairness, and support for not only a marginalized group, but more importantly, for a fellow student at Ponce de Leon. The student, Jane Doe, had been victimized by the school principal solely because of her sexual orientation. Principal David Davis responded to Jane Doe's complaints of harassment by other students, not by consoling her, but by shaming her. Davis interrogated Jane about her sexual orientation, informed her parents that she identified as homosexual, warned her to stay away from other students because of her sexual orientation, preached to her that being homosexual was not right, and ultimately suspended her for expressing her support for herself and for other homosexual students. (pp. 18-19)
In Judge Smoaks view, any unrest that occurred at Ponce de Leon High School pertaining to the Gay Pride movement was the sole responsibility of Principal Davis. Indeed, Judge Smoak wrote, it was Davis who catalyzed the Gay Pride movement because of his animosity toward students who were homosexual and his relentless crusade to extinguish the speech supporting them (p. 21). The judge characterized Daviss investigation after the morality assembly as a witch hunt (p. 21).
Judge Smoak acknowledged that the subject of homosexuality is controversial, but that fact alone did not entitle school officials to suppress student speech on that topic. As Judge Smoak pointed out, the issue of equal rights for gays and lesbians was being fervently debated all over the United States. The judge saw no reason why the nations high school students should be forbidden from taking part in this national discussion.
Davis had testified at trial that he considered homosexuality to be an abomination that God would punish; and Judge Smoak admitted that Davis was entitled to hold that opinion. In fact, Judge Smoak noted, the First Amendment protected Daviss opinions just as it protected the beliefs of Heather Gillman. Nevertheless, Judge Smoak wrote, Davis may not lawfully extinguish the speech of those with views contrary to his own (p. 30).
Judge Smoaks Decision: A Ringing Affirmation of Free Speech Rights in the Schools
In recent years, several federal courts have ruled that students have a constitutional right to express their anti-gay sentiments at school, even when their speech conflicts with schools efforts to promote tolerance and understanding toward gay and lesbian students. These decisions are constitutionally correct, some scholars argue; but many educators are ambivalent about them because anti-gay speech in the schools can be hurtful to a vulnerable class of students.
In an odd way, Gillman v. School Board for Holmes County is in harmony with those earlier decisions. In Gillman, Judge Smoak held that students have a constitutional right to express their support for gay and lesbian studentsnot their hostility. No one in public education should be ambivalent about this decision. Surely everyone of good heart will celebrate Judge Smoaks ruling, which affirmed the First Amendment rights of a high school student who only wanted to express her support for Jane Doe, a classmate who had been victimized, as Judge Smoak put it, by a school principal simply because of her sexual orientation.
Gillman v. School Board for Holmes County, No. 5:08CV34-RS-MD (N.D. Fla. July 24, 2008).