Reinforcing Related Rights: Advancing Equality for LGBT Youth by Safeguarding Student Freedom of Expression

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Lambda Legal ramped up its efforts this spring on behalf of youth around the country, filing a federal lawsuit in upstate New York and successfully advocating for students in Georgia and Oregon, where schools in all three states had restricted student expression in support of lesbian, gay, bisexual and transgender (LGBT) rights. In this most recent flurry of youth–related advocacy, Lambda Legal continues to spotlight how peer harassment and antigay school censorship inflict intersecting and overlapping harms on students. In contrast, schools that respect students' freedom to engage in LGBT–supportive expression can reinforce antidiscrimination protections and contribute to safer school environments for all youth.

Litigation in New York's Northern Country

In upstate New York, Lambda Legal plaintiffs Charlie Pratt and Ashley Petranchuk have courageously stood up to antigay censorship, harassment and discrimination in their local schools, filing a federal lawsuit on April 8 in the U.S. District Court for the Northern District of York. [Their complaint] describes years of unlawful and unconstitutional discrimination by the Indian River Central School District — its governing body, officials and employees.

Charlie, now 20 years old, endured years of discrimination as well as antigay and sexist harassment as a student in the Indian River schools. Particularly in high school, students attacked Charlie relentlessly with antigay and sexist slurs, pushed him frequently and forcefully into walls and lockers, hurled food and other objects at him, spat on him, taunted him with offensive gestures, grabbed and pinched his buttocks, and repeatedly scrawled antigay language on his locker. Staff members joined in on the harassment, ridiculing Charlie with stereotypically effeminate gestures in front of other students and telling Charlie he was "disgusting" and "shouldn't be gay." Administrators refused to take appropriate or effective action, instead treating Charlie as the problem. At one meeting with Charlie and his parents, for example, the school principal suggested that Charlie "tone it down" to avoid the harassment. The principal also informed Charlie's parents that he could not ensure their son's safety at school, leading them to withdraw Charlie from school for his own protection at age 15.

As detailed in the [complaint,] school employees violated Charlie's rights under numerous statutory and constitutional provisions that bar sexist and antigay discrimination.  For example, by deliberately refusing to take appropriate measures in response to sexist and antigay harassment, the district and its employees infringed Charlie's rights under the U.S. Constitution's Equal Protection Clause, Title IX of the U.S. Education Amendments of 1972 and New York's Human Rights and Civil Rights Laws. This story of antigay injustice, however, involves more than claims for discrimination. While the violation of antidiscrimination provisions lies at the heart of Charlie's case, illegal restrictions on student expression compounded and exacerbated the harms he endured and now form an inextricable part of Lambda Legal's lawsuit against the school district.

At least twice during Charlie's abbreviated tenure at Indian River High School, the school principal refused to grant students permission to form an extracurricular gay–straight alliance (GSA) on campus, even though the school allowed and encouraged a multitude of other extracurricular groups to meet at school. Because the school received federal funds and allowed other student groups to meet at school, this refusal to permit a GSA violated the federal Equal Access Act (EAA). The EAA, enacted in 1984, protects public secondary students who participate in extracurricular organizations from discrimination based on the content or viewpoint of their speech. The EAA effectively codifies and reinforces basic First Amendment principles protecting student expression on campus.

As Charlie's experience illustrates, a school's refusal to allow LGBT–supportive student organizations like a GSA can exacerbate an already hostile environment and leave LGBT youth in a particularly dangerous and vulnerable position. Indian River school officials' mistreatment of Charlie resulted not only from their permitting pervasive antigay harassment, but also in their thwarting student efforts to peacefully organize against the abusive treatment. By blocking the formation of the GSA, Indian River High School sent a destructive and terrifying message to young people like Charlie: that they were not welcome at their own school, and that the school placed a higher priority on silencing LGBT students and their allies than it did on addressing harassment against them. Thus, antigay censorship in cases like Charlie's not only violates the EAA and the First Amendment, but also forms part of the unlawful and invidious antigay discrimination in violation of the Equal Protection Clause and other antidiscrimination protections.

This isn't to say, of course, that free speech norms authorize any and all student conduct that might conceivably be deemed expressive. Firmly established legal principles require schools to protect students from substantially disruptive conduct by their peers — including harassment and bullying — regardless of any claim that the perpetrators are merely "expressing" themselves. Student expression that peacefully advocates for inclusion and respect of LGBT people, however, cannot be deemed disruptive and does not fit within any of the narrowly drawn limitations on free speech rights at school as recognized by the U.S. Supreme Court.

Though the harassment at Indian River ultimately forced Charlie to abandon his high school education, his story, fortunately, does not end there. Several years after his withdrawal, his younger sister, Ashley Petranchuk, now a sophomore at the same high school, picked up where Charlie and others had left off. Appalled by the mistreatment her older brother endured, Ashley requested permission from school administrators to form a GSA, hoping that the club could help raise awareness and make the school a safer place for LGBT students. However, the assistant principal and principal turned Ashley down, claiming that others in the community would object to a GSA. Frustrated by the school district's ongoing violation of students' rights, Ashley and Charlie together turned to Lambda Legal, which filed its lawsuit on behalf of both of them. In addition to seeking compensation for the harassment and discrimination that Charlie endured, the complaint seeks damages and other relief for the violation of Ashley's and Charlie's expressive rights under the EAA, the First Amendment and New York State law.

Less than a week after the suit was filed, Indian River officials started to shift course. In a letter to Lambda Legal attorneys dated Monday, April 13, the district's attorney stated that Ashley could form a GSA the following Monday, as soon as she returned from spring break. Having secured this victory, Ashley and other students have not wasted any time. Within a week of returning to school, they put up posters to raise awareness of homophobia, made announcements on the school's public address system and held GSA brainstorming meetings to plan for the coming year. Significant work remains to be done in the case, of course, and Lambda Legal will continue to press multiple claims on behalf of Charlie and Ashley to redress the repeated violations their rights.  

Advocacy Across the Country

Charlie and Ashley's case is just one of three instances this past April of Lambda Legal's successful advocacy on behalf of students asserting their freedom of expression. 

On April 15, Lambda Legal wrote to McIntosh County Public School officials in Darien, Georgia, in support of high school student Cody Hanrahan, who had been denied permission to form a GSA. Within days of receiving Lambda Legal's letter, school officials indicated that they were willing to work with Cody and other students to allow the club.

Additionally, on April 17 — which marked the 13th annual Day of Silence — Lambda Legal contacted school officials in Oregon on behalf of South Medford High School student Connie McNair about discriminatory restrictions on their GSA's ability to publicize its activities and encourage student participation in Day of Silence activities. Lambda Legal's letter prompted a quick response from the school officials, who said they would meet to review the school's policies.

Lambda Legal will continue to work with students like Charlie, Ashley, Cody and Connie to protect their ability to organize and advocate at school on behalf of LGBT equality.  By safeguarding the expressive rights of students and student GSAs, Lambda Legal and the students it represents advance fundamental First Amendment values and move us closer to the day when all students, regardless of sexual orientation or gender idenity, can safely receive an education free from discrimination and harassment.

Michael Kavey, Arthur Liman Public Interest Fellow
May 19, 2009