Gay Bullying Opponents Denied an Injunction

(CN) - Florida school officials may be liable for blocking a protest of gay bullying but an injunction is unnecessary to protect the same event scheduled for next week, a federal judge ruled.

Amber Hatcher sued the Desoto County School District Board of Education and three school officials after they allegedly prevented her from organizing and participating in a National Day of Silence honoring the lesbian, gay, bisexual and transgender students who face bullying and harassment.

Hatcher claims that she wore a "non-vulgar" T-shirt for the Day of Silence on April 20, 2012, and remained silent at school. Though the day proceeded without incident, Hatcher says she was removed from her third period class and disciplined because of her First Amendment activities.

Desoto County High School principal Shannon Fusco later attributed the disciplinary action to Hatcher's protest activities. Fusco said in an email that "only two students received any consequences from protesting for LGBT day of silence."

Fusco and the board moved to dismiss, but U.S. District Judge John Steele preserved most claims Friday for trial.

The 15-page ruling dismissed a claim for damages against the board and Fusco in her individual and official capacities for violation of equal protection clause of the 14th Amendment and Section 1983.

In upholding the other claims, Steele noted the allegation "that Principal Fusco refused to allow plaintiff to engage in any of her requested activities relating to that year's National Day of Silence."

"At least some of these proposed activities were well within the First Amendment and required no approval by any school official, e.g., remaining silent outside of class, communicating in writing or by dry erase board outside of class, non-vulgar conversations about the upcoming National Day of Silence," according to the ruling. "Plaintiff has also satisfactorily alleged, based upon the emails of the defendants, that there is an established unwritten policy or practice absolutely banning all 'protest' speech at the Desoto County schools that is contrary to the School District's written policy and the First Amendment. ... A blanket policy against 'protest' speech of any description is incompatible with longstanding First Amendment principles."

In a separate opinion, Steele refused to grant Hatcher an injunction that would block school interference with the National Day of Silence planned for April 19, 2013.

"The attorney for the school board has stated that plaintiff may engage in literally all the conduct described by her attorney to the court," Steele wrote. "While plaintiff is skeptical, counsel for the school board also pointed out that both the principal and the superintendent involved in the conduct underlying this case are no longer employed by the school board. The court has no basis to believe that the school board's counsel has misled the court in his representation, or to believe the school board will not honor the position its authorized legal representative has articulated."

A properly phrased injunction is unlikely to solve the First Amendment issues of this case, according to the ruling.

"The court finds that short of saying 'obey the law,' there is not a preliminary injunction which has been suggested that is sufficiently unambiguous as to the conduct proscribed so as to provide meaningful guidance as to the conduct being enjoined," Steele wrote.

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