Case 5:08-cv-00034-RS-MD Document 90 Filed 07/24/08 Page 1 of 36
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`IN THE UNITED STATES DISTRICT COURT
`NORTHERN DISTRICT OF FLORIDA
`PANAMA CITY DIVISION
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`Page 1 of 36
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`HEATH ER GILLMAN, through next
`friend and mother, Ardena Gillman,
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`Plaintiff,
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`vs.
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`CASE NO. 5:08cv34-RS-MD
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`SCHOOL BOARD FOR HOLMES
`COUNTY, FLORIDA,
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`Defendant.
`______________________________/
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`OPINION AND ORDER
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`The question presented is whether a public high school may prohibit
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`students from wearing or displaying t-shirts, armbands, stickers, or buttons
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`containing messages and symbols which advocate the acceptance of and fair
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`treatment for persons who are homosexual.
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`I. Background
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`Plaintiff Heather Gillman, through her mother, Ardena Gillman, has sued
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`Defendant School Board for Holmes County, Florida, alleging that the School
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`Board has deprived her of her right to free speech and political expression and has
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`engaged in viewpoint-based discrimination, in violation of the First and Fourteenth
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`Amendments to the United States Constitution. Gillman is an eleventh grade student
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`at Ponce de Leon High School, a public school in a rural community in the Florida
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`panhandle serving approximately four hundred students in grades six through
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`twelve. Gillman, who identifies herself as heterosexual, contends that the School
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`Board and the principal of Ponce De Leon, David Davis, unlawfully prohibited her
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`and other students from wearing or displaying t-shirts, armbands, stickers, or
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`buttons containing slogans and symbols which advocate the acceptance of and fair
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`treatment for persons who are homosexual. Banned from the school are rainbows,
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`pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine
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`By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,”
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`“God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” “I
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`Support Equal M arriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a
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`Choice. Religion, However, Is.”
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`II. Facts
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`This case arose from events involving a homosexual student at Ponce de
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`Leon High School on Friday, September 7, 2007. The twelfth-grade student, Jane
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`Doe, reported to a teacher’s aide that she had been taunted by a group of
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`approximately five middle school students because of her sexual orientation. The
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`middle school students allegedly told Jane that “dykes,” such as herself, were
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`“nasty,” “gross,” and “sick.” The teacher’s aide reported the incident to Principal
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`David Davis.
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`At the end of the school day on the following Monday, September 10, 2007,
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`Davis called Jane into his office. Davis asked Jane if she had told the teacher’s aide
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`that she identified herself as a lesbian. Jane answered, “Yes.” Davis then asked,
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`“Are you a lesbian?” Jane again answered, “Yes.” Davis counseled Jane that it was
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`not “right” to be homosexual. He then questioned Jane about whether her parents
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`were aware of her sexual orientation. When Jane answered in the negative, Davis
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`asked Jane for her parents’ telephone number so that he could call them and inform
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`them of her sexual orientation.1 Davis also instructed Jane to “stay away” from the
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`middle school students or that he would suspend her. Jane left Davis’s office in
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`tears.
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`Jane was not present at school the following day because her sister had
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`surgery. However, Davis’s rebuke of Jane on the basis of her sexual orientation
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`became known to the student body. A false rumor circulated that Jane was absent
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`from school because Davis had suspended her for being homosexual. Numerous
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`students expressed their support for Jane by writing “GP” or “Gay Pride” on their
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`bodies, wearing t-shirts with messages supportive of gay rights, yelling “Gay Pride”
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`in the hallways, circulating petitions to demonstrate support for gay rights, and
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`creating signs with messages supporting homosexuals.
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`On Tuesday, September 11, 2007, a rumor circulated among the student body
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`that Davis had invited an anti-gay preacher from a local church to speak at a
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`mandatory assembly on Wednesday, September 12, 2007. A silent bulletin on the
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`video monitors in each classroom stated that a “morality assembly” would be held
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`at the end of the day on Wednesday.
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`During lunch, on Wednesday, September 12, 2007, a group of Jane’s friends
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`discussed the prospect of peacefully walking out of the assembly in protest.
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`Because the preacher did not discuss issues relating to homosexuality at the
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`assembly, and because Davis instructed students that a walk-out would not be
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`tolerated, no students walked out in protest, and the assembly proceeded without
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`1Testimony at trial revealed that Jane’s father threatened to kick Jane out of
`the house upon learning of his daughter’s sexual orientation.
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`incident.
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`Following the assembly, Davis began investigating what had come to be
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`known as the “Gay Pride” movement at the school. He interviewed approximately
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`thirty students, interrogated them about their sexual orientations, and questioned
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`them about their involvement in the planned walk-out of the assembly and their
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`activities in relation to the movement. During those meetings, Davis instructed
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`students who were homosexual not to discuss their sexual orientations. He also
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`prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on
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`their arms and notebooks. He required students to wash “GP” or “Gay Pride” from
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`their arms and hands and lifted the shirts of female students to verify that no such
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`writings were present on their bodies.
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`One of the students that Davis questioned was Gillman’s cousin, who
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`identifies as homosexual. Davis questioned Gillman’s cousin about her sexual
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`orientation. Davis stated that being gay was against the Bible and that it was not
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`right. He expressed his hope that Gillman’s cousin would not “go down the road”
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`of being a homosexual. Davis then instructed her not to discuss her sexual
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`orientation with any students at the school, not to say “Gay Pride” or write it on her
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`body or school materials, and not to wear her rainbow-colored belt. Davis warned
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`Gillman’s cousin that if she violated his instructions, he would suspend her from
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`school.
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`On Friday, September 21, 2007, and M onday, September 24, 2007, Davis
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`suspended eleven students, including Gillman’s cousin, for five school days each as
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`punishment for their involvement in the “Gay Pride” movement. As grounds for
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`the suspensions, Davis explained that the students belonged to a “secret society” or
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`“illegal organization” forbidden by school board policy; had threatened to walk out
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`of an assembly; and had disrupted the school. Davis told the mother of a student
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`whom he had suspended that he could secretly “send her [daughter] off to a private
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`Christian school down in Tallahassee” or to the juvenile detention center and that
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`“if there was a man in your house, your children were in church, you wouldn’t be
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`having any of these gay issues.”
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`On Wednesday, September 26, 2007, Gillman wore a rainbow belt and a
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`handmade shirt with the slogan “I Support Gays” to school as an expression of
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`support for her cousin, her acceptance of homosexuals, and her belief that
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`homosexuals should be afforded equal and fair treatment. On Thursday and Friday
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`of that week, Gillman wore a rainbow belt to school to express the same beliefs.
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`Gillman’s conduct did not cause any disruption at the school or other negative
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`reactions, and she was not reprimanded or punished.
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`In light of Davis’s prohibition of messages relating to the support and
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`acceptance of homosexuals, Gillman sought clarification from the School Board
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`about its own position on the matter. On November 2, 2007, Gillman and her
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`cousin (who had previously been suspended by Davis), through legal counsel, sent a
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`letter to the attorney for the School Board. The letter requested guidance on which
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`phrases and symbols students could display at school without being disciplined.
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`Specifically, Gillman sought permission from the School Board to display
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`rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,”
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`“Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I
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`Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-
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`Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation
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`is Not a Choice. Religion, However, Is.”
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`By letter dated November 12, 2007, the School Board responded that none of
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`the phrases, symbols, or images contained in the letter dated November 2, 2007,
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`could be displayed by students at Ponce de Leon High School. The School Board
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`justified its censorship on the ground that the expressions indicated membership in
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`an “illegal organization” prohibited by School Board policy and were disruptive to
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`the educational process. The letter cited students’ plan to walk out of the school
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`assembly on September 12, as an example of the disruptive effect of the messages.
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`In her complaint (Doc. 1), filed January 31, 2008, Gillman contended that she
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`desires to display the symbols and messages contained in the letter dated November
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`2. She has, however, abstained from doing so based on her fear that she will be
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`disciplined for violating the verbal and written instructions of Davis and the Holmes
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`County School Board prohibiting students from displaying the symbols and
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`messages.
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`III. Procedure
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`Named as defendants in the complaint were the School Board for Holmes
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`County, Florida, and David Davis, in his official capacity as principal of Ponce de
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`Leon High School. Gillman alleged that Defendants’ conduct in prohibiting
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`students from wearing clothing and displaying writings and symbols which
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`advocate the acceptance of and fair treatment for persons who are homosexual (1)
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`deprived her of her right to free speech and political expression and (2) constituted
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`viewpoint-based discrimination, in violation of the First and Fourteenth
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`Amendments to the United States Constitution. Gillman requested the following
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`relief:
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`(1) Entry of an order declaring that Defendants violated Gillman’s rights
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`under the First and Fourteenth Amendments to the United States Constitution;
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`(2) Entry of an order preliminarily and then permanently enjoining
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`Defendants from restraining, prohibiting, or suppressing the speech and expression
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`at issue;
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`(3) Entry of an order enjoining the enforcement of Defendants’ policies
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`relating to “illegal organizations” or “secret societies” as they pertain to the speech
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`and expression at issue in this case;
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`(4) Entry of an order directing Defendants to remedy their past restraints of
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`the speech and expression at issue, including, but not limited to, notifying the
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`officials and student body at Ponce de Leon High School in writing that students are
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`permitted to engage in speech and expression which support the equal treatment and
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`acceptance of homosexuals;
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`(5) Entry of an order enjoining Defendants from retaliating against Gillman
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`or any other student for (a) bringing this lawsuit or (b) their past or future speech
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`and expressions supporting the equal treatment and acceptance of homosexuals;
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`(6) Entry of judgment in favor of Gillman and against the School Board for
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`nominal damages of $1.00;
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`(7) An award of reasonable attorneys’ fees and costs incurred in connection
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`with this action under 42 U.S.C. § 1988; and
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`(8) The retention of jurisdiction of this case by this Court to enforce the terms
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`of its orders.
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`On February 11, 2008, Gillman filed a motion for preliminary injunction
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`(Doc. 7). The motion was denied as moot, per the parties’ stipulation to consolidate
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`the motion with a bench trial on the merits of the complaint. On February 21, 2008,
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`Defendants filed a motion to dismiss David Davis, in his official capacity (Doc. 22).
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`Per the parties’ stipulation, the complaint against David Davis, in his official
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`capacity, was dismissed with prejudice on March 10, 2008 (Doc. 30). On April 28,
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`2008, Gillman filed a motion for partial summary judgment on her free speech
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`claim, and the School Board filed a motion for partial summary judgment on
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`Gillman’s claim for viewpoint-based discrimination. Both motions were denied on
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`May 1, 2008.
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`A bench trial was held on May 12 and 13, 2008. Following the presentation
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`of evidence, I entered an oral order granting all relief requested by Gillman. On
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`May 15, 2008, Judgment was entered in favor of Gillman and against the School
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`Board in the amount of $1.00 (Doc. 15). On June 25, 2008, following a mediation,
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`the parties filed a stipulation for entry of judgment as to attorneys’ fees and costs
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`(Doc. 87). Pursuant to the stipulation, judgment was entered in favor of Gillman
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`and against the School Board for attorneys’ fees and costs in the amount of
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`$325,000.00 (Doc. 89).
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`IV. Analysis
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`A. Free Speech Claim
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`1. Law
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`The First Amendment to the United States Constitution, as applied to the
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`States by the Fourteenth Amendment, prohibits Congress and the States from
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`“abridging the freedom of speech.” U.S. Const. amends. I & XIV; Consol. Edison
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`Co. v. Public Serv. Com m’n, 447 U.S. 530, 534, 100 S. Ct. 2326, 2331, 65 L. Ed. 2d
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`319 (1980). First Amendment rights “unquestionably exist in public schools.”
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`Holloman v. Harland, 370 F.3d 1252, 1264 (11th Cir. 2004) (citation omitted).
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`Supreme Court precedent has identified four categories of student speech: (1)
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`vulgar, lewd, obscene, or plainly offensive speech under Bethel Sch. Dist. No. 403
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`v. Fraser, 478 U.S. 675, 92 L. Ed. 2d 549, 106 S. Ct. 3159 (1986); (2) school-
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`sponsored speech under Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260, 266, 98
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`L. Ed. 2d 592, 108 S. Ct. 562 (1988); (3) government speech; and (4) pure student
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`expression under Tinker v. Des Moines Indep. Cmty. Sch. Dist., 393 U.S. 503, 89 S.
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`Ct. 733 (1969). See Bannon v. Sch. Dist. of Palm Beach County, 387 F.3d 1208,
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`1213 (11th Cir. 2004). Because this case involves only pure student expression, the
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`Tinker analysis applies.
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`Forty years ago, in the landmark case of Tinker, the United States Supreme
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`Court held that the First Amendment protects the free speech rights of students and
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`teachers. Tinker, 393 U.S. at 506, 89 S. Ct. at 736. In Tinker, the Supreme Court
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`stated that “the unmistakable holding of this Court for almost 50 years” has been
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`that “[i]t can hardly be argued that either students or teachers shed their
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`constitutional rights to freedom of speech or expression at the schoolhouse gate.”
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`Id. Quoting Justice Jackson, Tinker emphasized that “educating the young for
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`citizenship is reason for scrupulous protection of Constitutional freedoms of the
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`individual, if we are not to strangle the free mind at its source and teach youth to
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`discount important principles of our government as mere platitudes.” Tinker, 393
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`U.S. at 507, 89 S. Ct. at 737 (quoting W est Virginia State Bd. of Educ. v. Barnette,
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`319 U.S. 624, 63 S. Ctd. 1178, 87 L. Ed. 1628 (1943)). Also quoting Justice
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`Brennan’s opinion in Keyishian v. Bd. of Regents, 385 U.S. 589, 87 S. Ct. 675, 17
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`L. Ed. 2d 629 (1967), the Tinker Court affirmed that:
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`The vigilant protection of constitutional freedoms is
`nowhere more vital than in the community of American
`schools. The classroom is peculiarly the ‘marketplace of
`ideas.’ The Nation’s future depends upon leaders trained
`through wide exposure to that robust exchange of ideas
`which discovers truth ‘out of a multitude of tongues, (rather)
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`than through any kind of authoritative selection.
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`Tinker, 393 U.S. at 512 (quoting Keyishian, 385 U.S. at 603) (internal citations
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`omitted).
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`On the other hand, the Supreme Court has also recognized the limits of
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`student speech in schools. It has held that “the constitutional rights of students in
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`public schools are not automatically coextensive with the rights of adults in other
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`settings,” Fraser, supra, 478 U.S. at 682 (First Amendment did not prevent public
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`school district from suspending student for delivering a speech containing elaborate,
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`graphic, and explicit sexual metaphors); that the rights of students “must be ‘applied
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`in light of the special characteristics of the school environment,’” Kuhlmeier, supra,
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`484 U.S. at 266 (quoting Tinker, 393 U.S. at 506) (educators do not offend the First
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`Amendment by exercising editorial control over the style and content of student
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`speech in school-sponsored expressive activities so long as their actions are
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`reasonably related to legitimate pedagogical concerns); see Morse v. Frederick, 127
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`S. Ct. 2618, 2622, 168 L. Ed. 2d 290, 296 (2007) (because schools may safeguard
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`those entrusted to their care from speech that can reasonably be regarded as
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`encouraging illegal drug use, school officials did not violate the First Amendment
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`by confiscating a student’s pro-drug banner); that public educational institutions
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`have the right “to adopt and enforce reasonable, nondiscriminatory regulations as to
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`the time, place and manner of student expressions and demonstrations,” Bayless v.
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`Martine, 430 F.2d 873, 878 (5th Cir. 1970) (citing Williamson v. Lee Optical, 348
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`U.S. 483, 487-88, 75 S. Ct. 461, 464, 99 L. Ed. 563 (1955)); and that school
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`officials must be permitted “to prescribe and control conduct in the schools.”
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`Tinker, 393 U.S. at 507, 89 S. Ct. at 737 (citing Epperson v. Arkansas, 393 U.S. 97,
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`104, 89 S. Ct. 266, 270, 21 L. Ed. 2d 228 (1968); Meyer v. Nebraska, 262 U.S. 390,
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`402, 43 S. Ct. 625, 627, 67 L. Ed. 1042 (1923)). See also Bd. of Educ. v. Earls, 536
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`U.S. 822, 829-30, 122 S. Ct. 2559, 153 L .Ed. 2d 735 (2002) (recognizing the
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`schools’ custodial and tutelary responsibility for children in the Fourth Amendment
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`context), cited in Morse, supra, 127 S. Ct. at 302, 168 L. Ed. 2d at 27).
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`Cases, such as this, “which involve regulations limiting freedom of
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`expression and the communication of an idea which are protected by the First
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`Amendment present serious constitutional questions[,]” for “[a] valuable
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`constitutional right is involved.” Blackwell v. Issaquena County Bd. of Educ., 363
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`F.2d 749, 753 (5th Cir. 1966). A First Amendment problem arises when students in
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`a public school, in the exercise of their First Amendment rights, collide with the
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`rules and policies of school officials. Tinker, 393 U.S. at 507, 89 S. Ct. at 737.
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`In Tinker, the Court set forth a test to assess the respective interests of
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`students and school officials in determining which party should prevail on a First
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`Amendment problem. Under the Tinker test, student speech in a public school may
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`only be censored if it would “materially and substantially interfere with the
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`requirements of appropriate discipline in the operation of the school” or “collid[e]
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`with the rights of others.” Tinker, 393 U.S. at 509, 513, 89 S. Ct. at 738, 740
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`(quoting Burnside v. Byars, 363 F.2d 744, 749 (5th Cir. 1966)) (internal quotations
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`omitted).
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`Applying its test, Tinker held that a public school district’s regulation
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`prohibiting students from wearing black armbands to school in protest of the
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`Vietnam War and suspension of any student who had refused to remove the
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`armband was an unconstitutional denial of students’ right to expression of opinion.
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`The school district had banned the armbands because of its desire to avoid the
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`controversy associated with the Vietnam War.2 Tinker, 393 U.S. at 510. School
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`officials also feared that if the armbands were worn, the friends of a high school
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`student in the district who had been killed in the Vietnam War would “be difficult
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`to control” and that disagreeing students would wear armbands of other colors,
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`causing the potential for conflict. Tinker, 393 U.S. at 509-10, n. 3. In rejecting the
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`concerns of school officials as a basis for prohibiting speech, the Tinker Court
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`stated:
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`[I]n our system, undifferentiated fear or apprehension of
`disturbance is not enough to overcome the right to freedom
`of expression. Any departure from absolute regimentation
`may cause trouble. Any variation from the majority’s
`opinion may inspire fear. Any word spoken, in class, in the
`lunchroom, or on the campus, that deviates from the views
`of another person may start an argument or cause a
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`2The district court in Tinker had upheld the decision by the school district to
`ban the armbands, basing its decision on the explosiveness of the issue surrounding
`the United States’ involvement in the Vietnam War:
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`[T]he school authorities, in prohibiting black armbands,
`were influenced by the fact that ‘(t)he Viet Nam war and
`the involvement of the United States therein has been the
`subject of a major controversy for some time. When the
`arm band regulation involved herein was promulgated,
`debate over the Viet Nam war had become vehement in
`many localities. A protest march against the war had been
`recently held in Washington, D.C. A wave of draft card
`burning incidents protesting the war had swept the country.
`At that time two highly publicized draft card burning cases
`were pending in this Court. Both individuals supporting
`the war and those opposing it were quite vocal in
`expressing their views.’
`
`Tinker, 393 U.S. at 510, n. 4 (citation omitted).
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`disturbance. But our Constitution says we must take this
`risk, and our history says that it is this sort of hazardous
`freedom – this kind of openness – that is the basis of our
`national strength and of the independence and vigor of
`Americans who grow up and live in this relatively
`permissive, often disputatious, society.
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`Tinker, 393 U.S. at 508-09. The Court then further explained that:
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`In our system, state-operated schools may not be enclaves of
`totalitarianism. School officials do not possess absolute
`authority over their students. Students in school as well as
`out of school are ‘persons’ under our Constitution. They are
`possessed of fundamental rights which the State must
`respect,
`just as
`they
`themselves must respect
`their
`obligations to the State. In our system, students may not be
`regarded as closed-circuit recipients of only that which the
`State chooses to communicate. They may not be confined
`to the expression of those sentiments that are officially
`approved. In the absence of a specific showing of
`constitutionally valid reasons to regulate their speech,
`students are entitled to freedom of expression of their views.
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`Tinker, 393 U.S. at 511.
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`The Tinker Court concluded that the display of armbands was a
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`constitutionally protected form of expression because it was a “silent, passive
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`expression of opinion, unaccompanied by any disorder or disturbance” or of
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`“collision with the rights of other students to be secure and to be let alone.” Tinker,
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`393 U.S. at 508. The Court concluded:
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`Under our Constitution, free speech is not a right that is
`given only to be so circumscribed that it exists in principle
`but not in fact. Freedom of expression would not truly exist
`if the right could be exercised only in an area that a
`benevolent government has provided as a safe haven for
`crackpots. The Constitution says that Congress (and the
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`States) may not abridge the right to free speech. That
`provision means what it says . . . . [W]e do not confine the
`permissible exercise of First Amendment rights to a
`telephone booth or the four corners of a pamphlet, or to
`supervised and ordained discussion in a school classroom.
`
`Tinker, 393 U.S. at 513.
`
`Consistent with Tinker, the Eleventh Circuit and its courts have protected the
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`free speech rights of students when such speech was unaccompanied by “material
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`and substantial disruption” or “collision with the rights of other students to be
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`secure and to be let alone.” See, e.g., Burnside v. Byars, 363 F.2d 744, 749 (5th Cir.
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`1966) (holding that students’ free speech rights were breached by school officials
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`when they prohibited students from peacefully wearing “freedom buttons” that
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`advocated the lawful and peaceful abolition of racial segregation)3; Johnston-
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`Loehner v. O’Brien, 859 F. Supp. 575, 581 (M.D. Fla. 1994) (holding that school
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`district policy requiring that students obtain the review and approval of school
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`officials prior to distributing any written material violated free speech rights of
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`students); Reineke v. Cobb County Sch. Dist., 484 F. Supp. 1252, 1258 (N.D. Ga.
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`1980) (holding that a teacher was unjustified in censoring an article in the school
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`newspaper because it was “inconceivable that the use of the word ‘damn’ one time
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`in the article would have caused material and substantial interference with school
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`activities”); Banks v. Bd. of Public Instr., 314 F. Supp. 285 (S.D. Fla. 1970),
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`vacated by 401 U.S. 988, 91 S. Ct. 1223, 28 L. Ed. 2d 526 (1971), reinstated
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`without published opinion by dist. ct. and aff’d, 450 F.2d 103 (5th Cir. 1971)
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`3In Bonner v. Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), the
`Eleventh Circuit adopted, as binding precedent, all decisions of the former Fifth
`Circuit handed down prior to the close of business on September 30, 1981.
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`(holding that students’ refusal to stand during the Pledge of Allegiance was
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`constitutionally protected by First Amendment).
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`On the other hand, the Eleventh Circuit has upheld the censorship of speech
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`and expression by school officials when such activity has caused material and
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`substantial disruption or collided with the rights of others. See, e.g., Scott v. Sch.
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`Bd. of Alachua County, 324 F.3d 1246 (11th Cir. 2003) (holding that ban of
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`Confederate flags on school grounds was not an unconstitutional restriction of
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`students’ First Amendment rights where racial tensions existed at the school,
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`racially-based fights had occurred in the months leading up to the case, and the
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`Confederate flag is “inappropriate in the school context” because it is so “associated
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`with racial prejudice” that it is “likely to provoke feelings of hatred and ill will in
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`others.”); Blackwell, supra, 363 F.2d at 751-54 (upholding ban on “freedom
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`buttons” because students’ conduct in skipping classes, ignoring teachers, pinning
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`buttons on other students without their permission and causing a younger student to
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`cry, and throwing buttons through school windows “constituted a complete
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`breakdown in school discipline”).
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`The Tinker Court characterized the armbands as “closely akin to ‘pure
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`speech’ which, we have repeatedly held is entitled to comprehensive protection
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`under the First Amendment.” Tinker, 393 U.S. at 505-06. More recently, the
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`Supreme Court has stated that Tinker concerned “political speech,” which is, “of
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`course, . . . ‘at the core of what the First Amendment is designed to protect.’” Morse
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`v. Frederick, 127 S. Ct. 2618, 2626, 168 L. Ed. 2d 290, 300 (2007).
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`The Eleventh Circuit has emphasized the primacy of political speech. In
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`Holloman v. Harland, 370 F.3d 1252 (11th Cir. 2004), for example, the Eleventh
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`Circuit held that a student’s constitutional rights were violated as a matter of law
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`when he was punished for silently raising his fist during the Pledge of Allegiance
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`rather than saluting the flag. Id. at 1277. Guided by Tinker’s authority, the
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`Holloman court stated that “[t]here must be demonstrable factors that would give
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`rise to any reasonable forecast by the school administration of ‘substantial and
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`material’ disruption of school activities before expression may be constitutionally
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`restrained.” Holloman v. Harland, 370 F.3d 1252, 1273 (11th Cir. 2004) (quoting
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`Shanley v. Northeast Indep. Sch. Dist., 462 F.2d 960, 974 (5th Cir. 1972); Ctr. for
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`Participant Educ. v. Marshall, 337 F. Supp. 126, 135 (N.D. Fla. 1972)).
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`In interpreting the degree of disorder sufficient to justify censorship of
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`speech, the Holloman court stated that “there must be a real or substantial threat of
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`disorder, as opposed to the mere possibility of one.” Holloman, 370 F.3d at 1273
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`(citing Center for Participant Ed. v. Marshall, 337 F. Supp. 126, 135 (N.D. Fla.
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`1972) (suggesting that a “speculative fear” is insufficient to justify restrictions on
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`student expression, but a “real and immediate fear of conduct potentially disruptive
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`of the university routine” is enough). The Holloman court further clarified that:
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`[W]e cannot simply defer to the specter of disruption or the
`mere theoretical possibility of discord, or even some de
`minimis, insubstantial impact on classroom decorum.
`Particularly given the fact that young people are required by
`law to spend a substantial portion of their lives in
`classrooms, student expression may not be suppressed
`simply because it gives rise to some slight, easily
`overlooked disruption, including but not limited to ‘a
`showing of mild curiosity’ by other students, see Burnside,
`363 F.2d at 748, ‘discussion and comment’ among students,
`Reineke v. Cobb Cty. Sch. Dist., 484 F. Supp. 1252, 1261
`(N.D. Ga. 1980), or even some ‘hostile remarks’ or
`‘discussion outside of the classrooms’ by other students,
`Tinker, 393 U.S. at 508, 514, 89 S. Ct. at 737, 740.
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`Holloman, 370 F.3d at 1271-72. Further, “[w]here students’ expressive activity
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`does not materially interfere with a school’s vital educational mission, and does not
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`raise a realistic chance of doing so, it may not be prohibited simply because it
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`conceivably might have such an effect.” Id. at 1274. And when censorship
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`constitutes a “prior restraint” on speech – a ban on speech that has not yet been
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`expressed – the law is clear that a school board bears a “heavy burden” to justify its
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`ban.4 Healy v. James, 408 U.S. 169, 184, 92 S. Ct. 2338, 2347, 33 L. Ed. 2d 266
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`(1972); Shanley, 462 F.2d at 969.
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`In the context of speech involving the issue of homosexuality, several
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`decisions have affirmed students’ First Amendment rights. See Chambers v.
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`Babbitt, 145 F. Supp. 2d 1068 (D. M inn. 2001) (rejecting school board ban on a t-
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`shirt with the message “Straight Pride,” notwithstanding evidence of “gay-bashing”
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`speech and vandalism of a student’s car who was perceived to be homosexual);
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`Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001) (holding that student
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`stated a claim for violation of his First Amendment right to speech when he alleged
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`that school officials prevented him from openly stating that he was homosexual and
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`retaliated against him for doing so); Fricke v. Lynch, 491 F. Supp. 381, (D. R.I.
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`1980) (holding that public school violated homosexual student’s First Amendment
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`right to speech and expression when it banned him from bringing a same-sex date to
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`the prom, notwithstanding that the student and another homosexual student had
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`previously been assaulted by other students and that the school was forced to
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`provide additional security and escorts).
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`
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`4Most of the speech identified in the letter dated November 2, 2007, and
`banned by the School Board had not yet been expressed by the students.
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`2. Application
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`The issues of homosexuality and its social implications are topics that have
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`engendered intense feelings and debate throughout this nation and its communities.
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`My task in this case is not to judicially determine which side – supporters or
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`opponents of gay righ