home > lgbt equality or student rights Balancing the Rights of Students, Teachers and Parents GLSEN Utah Newsletter: July 1999 By Stephen C. Clark, ACLU of Utah Legal Director Perhaps the most important of all rights guaranteed by our constitution is the right to express our ideas and opinions about public issues that affect our private lives. Recently a group of students at East High School exercised that right in unprecedented fashion: they made an informative and thought-provoking presentation of gay lesbian bisexual transgendered ("GLBT") history and culture as part of the annual Multi-Cultural Assembly at East High School. In doing so they followed the proud and courageous tradition of Kelli Petersen, who first sought to form a Gay/Straight Alliance at East High School in the Fall of 1995. Rather than embracing them and celebrating their presence and their message, however, a vocal minority of the East High community has reacted with fear and prejudice. They have lashed out not only at the students but at East High Principal Kay Peterson, who quite properly approved the students’ participation and presentation, and at teachers at East High School and elsewhere whom they perceive to be promoting the "homosexual lifestyle." The increasingly vocal and visible presence of GLBT students, teachers and administrators in our public schools poses both challenges and opportunities to us as individuals and as a society. Public school are a wonderful microcosm of the "marketplace of ideas" that characterizes our pluralistic democracy, our more than 200-year experiment in creating one from many, e pluribus unum. Just as racial integration of the public schools made it possible for a new generation of schoolchildren to deal with those of a different color as individuals rather than as stereotypes, so the coming out of students and teachers is making it possible to see GLBT individuals as part of the brilliant and diverse community we live in. But it also triggers the inevitable backlash by those determined, contrary to history, to cling to outdated stereotypes and unfounded prejudices. The response cannot be to recoil with undeserved shame and to retreat into the closet. The response must be renewed determination to live honestly and without fear. It might seem anomalous to suggest that public school teachers, of all people, should be out in their communities, but a recent ruling from a court right here in Utah provides tremendous support for teachers who choose to do so. The ruling came in a case brought by the ACLU's National Lesbian and Gay Rights Project and the ACLU's Utah affiliate on behalf of Wendy Weaver, a 17-year psychology and physical education teacher at Spanish Fork High School. Throughout her career Wendy received plaudits from administrators, peers and students alike. She not only coached the girls' volleyball team to four state championships but inspired all her students to live up to their potential. Notwithstanding her stellar record, Wendy came under fire when she courageously admitted, in response to a direct question, that she is a lesbian. The ACLU's lawsuit charged -- and the court agreed -- that officials at Spanish Fork High School and at the Nebo School District violated Weaver's rights to free speech and equal protection guaranteed by the United States Constitution. U.S. District Judge Bruce Jenkins condemned the school's actions in the strongest possible terms. "Although the Constitution cannot control prejudices," Judge Jenkins wrote, " neither this court nor any other court, should, directly or indirectly, legitimize them." The school's actions violated Weaver's right to free speech, the court found, because she was singled out for disciplinary action for discussing her sexual orientation outside the classroom, while no similar restriction was placed on heterosexual teachers’ out-of-class discussions. Dismissing Weaver as a coach, Judge Jenkins wrote, also violated her right to equal protection of the law. It is important to understand what this landmark case says, and what it does not say. It does say that GLBT teachers can be "out" and make their voices heard on matters of public concern as full citizens in their communities without fear that what the court called "the private antipathy of some members of a community" will justify disciplinary action against them. As Jennifer Middleton, staff attorney with the ACLU’s National Lesbian and Gay Rights Project and one of the attorneys on the case stated following the victory: "This case was not about what was said in a classroom or about Wendy Weaver's effectiveness as a teacher or coach. It was about the District’s objecting to Weaver's positive example as a successful member of the school community who also happened to be a lesbian." The court emphasized that teachers have the right to be honest and open with members of their community about who they are and to speak out on the important public issues that affect their lives. This is important because the contrary argument the school district made is one that has been made in almost every case involving lesbian and gay teachers. The district said that when teachers come out in their community, they are making a statement about sex, but when heterosexual teachers talk about spouses or dates, the subject is relationships. The Utah court understood that these statements really are parallel, and both are about family, friendships, intimacy and the daily struggles and joys of life. The Weaver case does not say, however, that a teacher’s out-of-class public comments can never justify disciplinary action. If such comments cause a "significant degree of interference" with the teacher’s performance of his or her duties, or a "material and substantial disruption" of the school environment, then school officials may be justified in imposing some discipline. The case also does not say that GLBT teachers are free to espouse gay-positive views in the classroom. Classroom speech can be regulated in ways that teachers’ out-of-class speech cannot, because of the state interest in ensuring that school-sponsored speech furthers legitimate pedagogical concerns. The limits of the state’s ability to regulate classroom speech are constantly being tested. On the one hand, the United States Supreme Court has made clear that neither students nor teachers "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." It has also made clear that any regulation of those rights must be justified by "something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint." Nor can the State so conduct its schools as to "foster a homogeneous people." On the other hand, the State has broad discretion in dictating the content of the school curriculum and a legitimate interest in ensuring that a teacher’s classroom presentations bear on the subject matter of the curriculum and are appropriate to the age level of the students. It also has a general interest (and this is codified in several Utah statutes) in instilling respect for democratic institutions, obedience to law and other values important to the community. And when it comes to what might reasonably be considered school-sponsored speech, such as assemblies, plays, newspapers, announcements, bulletin boards, etc., school officials also have some authority to regulate speech they consider to be "vulgar or indecent," because the schools have "an interest in teaching students the boundaries of socially appropriate behavior." Given the various intereststo be balanced, teachers should first and foremost keep in mind the unique role they play in society. As the Supreme Court stated: "A teacher works in a sensitive area in the schoolroom. There he [or she] shapes the attitude of young minds toward the society in which they live. In this, the state has a vital concern." Other courts have emphasized that teachers must remain "keenly aware of the state’s vital interest in protecting the impressionable minds of its young people from any form of extreme propagandism in the classroom." Teachers should carefully consider all the facts and circumstances surrounding their classroom deportment and expression – everything from how they dress to what they put on their bulletin boards to what they say – and seek to achieve a balance that is true to both themselves and their vocation. Those facts and circumstances include the age and sophistication of the students, the closeness of the relation between the specific expression and the curriculum and educational objectives of the school, and the context and manner of the expression. Because this area of the law is undeveloped, teachers are well advised not simply to ignore or disregard the directives of those in higher authority to refrain from expressing personal views on controversial issues. Honest dialogue often can clarify both facts and intentions and avoid unnecessary misunderstandings. In the event of a concrete, principled disagreement, teachers are entitled to clear and consistent instructions about what is forbidden before disciplinary action can be taken. Of course the ACLU is available as a resource to help determine the best course of action on a case-by-case basis, so that a proper balancing and accommodation of the important rights and responsibilities of students, teachers and parents alike can be achieved.

ACLU OF UTAH UNION OR FOUNDATION? | USER AGREEMENT | PRIVACY POLICY | CONTACT US © 2008 ACLU OF UTAH · 355 NORTH 300 WEST · SALT LAKE CITY, UT 84103 · T (801) 521-9862 · F (801) 532-2850