Fourth Circuit Sides With School in Dispute Over Transgender-Affirming Essay

Citing 30-year-old court precedent, the unanimous decision affirms the idea that schools have wide authority over what’s published in assignments.

(AP Photo/Wilfredo Lee)

RICHMOND, Va. (CN) — The Fourth Circuit sided with a South Carolina elementary school Tuesday afternoon in a dispute involving a student’s transgender-affirming essay. While the student argued her principal’s removal of her essay as part of a classroom assignment amounted to a First Amendment violation, the unanimous panel found the move was within the school’s authority.

“Principal Foster’s initial refusal to include [the student’s] essay in the fourth grade class’s essay booklet was actuated at least in part by her concern that the essay’s topic was ‘not age appropriate’ for fourth graders,” wrote U.S. Circuit Judge Stephanie Thacker, a Barack Obama-appointee. The judge cited 1988’s Hazelwood School District v. Kuhlmeier as controlling precedent, which found schools retain the right to oversee content they disseminate to make sure it’s not “inconsistent with the shared values of a civilized social order.”

The lawsuit filed in Spartanburg federal court two years ago alleges the unnamed student submitted the short essay as part of an assignment to write on any topic addressed “to society.” The collection of essays was then to be collected and sent home to parents.

But before her essay got that far, Anderson Mill Elementary School Principal Elizabeth Foster stepped in and rejected it.  

The complaint alleges what followed was an aggressive interaction between Foster and the student’s mother in which the administrator “religiously defended her decision by consistently raising her voice and making loud statements, including but not limited to the following: that the original paper would ‘make other parents upset,’ ‘would create a undesirable situation at the school,’ was ‘not acceptable’ and that it was ‘not age-appropriate to discuss transgenders, lesbians and drag queens outside of the home.’”

“I don’t know if you know this but peoples [sic] view on Tran’s genders [sic] is an issue. People think that men should not drees [sic] like a women, and saying mean things,” the then-10-year-old wrote in part of the 100-word assignment. “People need to think before they speak because one word can hurt someone’s feelings.”

And while Thacker pointed to concerns about the “pedagogical efficacy of shielding fourth graders from topics like sexuality and gender identity,” she noted the test established by Hazelwood gives schools wide breadth when deciding what is and is not appropriate. 

“School officials may constitutionally restrict school-sponsored student speech — even student speech that serves a ‘valid legitimate educational purpose’ — so long as the restriction is reasonably related to legitimate pedagogical concerns,” Thacker wrote. “Therefore, Appellant’s argument about any purported educational purpose served by [student’s] LGBTQ-themed essay is irrelevant.”

The ruling affirms the lower court’s dismissal of the student’s claim. 

Attempts to reach the student’s attorney, Eric Poston of the Columbia-based law firm Chalmers Poston, were not returned by press time.

In an email, Jasmine Rogers Drain, the school’s attorney from the Columbia-based Halligan Mahoney & Williams, said they could not comment on the case but were pleased with the decision.

Tuesday’s decision comes as no surprise to those who listened to January’s virtual oral arguments where Poston struggled to address questions from Thacker about Hazelwood. 

Drain, meanwhile, put the precedent squarely in the judge’s line of sight.

“There has been great deference given to administrators,” she told the three-judge panel. “Schools need to be able to account for the emotional maturity level of the intended audience.”

Tuesday’s loss may not be the end of the unnamed student’s fight, according to Paul D. Castillo, counsel and students’ rights strategist with the LGBTQ-focused legal group Lambda Legal. In an email, he said courts have found there’s nothing “inherently age-inappropriate about speaking in support of an LGBTQ family member.”

“Fourth graders can understand the basic principle of treating all people with dignity and respect, including a grandparent who also happens to be transgender,” he said, pointing to the case’s record of evidence to suggest an en banc court could find differently. “Even the youngest elementary school student can grasp the anti-bullying concept that ‘hate hurts.’”

U.S. Circuit Judges Paul V. Niemeyer, a George H.W. Bush appointee, and Judge J. Harvie Wilkinson, a Ronald Reagan appointee, rounded out Tuesday’s unanimous opinion.

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