RICHMOND, Va. (CN) — A Fourth Circuit panel appeared unlikely Friday to rule in favor of a South Carolina student whose fourth-grade essay offering support for her transgender grandfather was denied publication by her school’s principal.
“The student wrote about the importance of treating everyone with kindness, including LGBTQ persons like her grandfather,” Eric Poston, an attorney for the unnamed student with the Columbia-based law firm Chalmers Poston, wrote in a brief to the appeals court. “For that reason, the principal refused to publish the essay.”
The lawsuit filed in Spartanburg federal court two years ago alleges the student, who was a fourth-grader at the time, submitted the essay as part of an assignment to write a short essay 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.”
But as endearing as the student’s message might have been, Jasmine Rogers Drain, the school’s attorney from the Columbia-based Halligan Mahoney & Williams, argued in a brief to the Fourth Circuit that the U.S. Supreme Court held in the 1988 decision Hazelwood School District v. Kuhlmeier that 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."
“There has been great deference given to administrators,” Drain said during Friday’s hearing, held virtually due to ongoing coronavirus pandemic. “Schools need to be able to account for the emotional maturity level of the intended audience.”
U.S. Circuit Judge J. Harvie Wilkinson, a Ronald Reagan appointee, agreed that Hazelwood was key to the dispute. He pointed to his own first-grade teacher who was often stern but had the authority needed to control his what happened in class.
“Sometimes the ground rules for essay contests and debates can appear arbitrary or strict, but that's the way sometimes,” he said, noting the precedent existed to avoid having parents and students drag teachers into court every time they disagreed with something being taught in class.
Poston, the student’s attorney, struggled to address questions from the judges related to Hazlewood’s impact on the case, but Paul Castillo, counsel and students rights strategist for the LGBTQ-focused Lambda Legal, said in a phone interview after Friday’s hearing that he believed a different precedent should apply.
“The Supreme Court has, with respect to education, affirmed speech rights for students,” he said. “There are few paths courts can take when they analyze school speech.”
Castillo pointed to the 1969 decision Tinker v Des Moines Independent Community School District as a better fit for the dispute.
In Tinker, students wore armbands in solidarity against the Vietnam War. When school administrators tried to shut the action down, the kids took the case to the nation’s top court and won. Notably, the school system defendants in Tinker, like Principal Foster in the South Carolina case, were worried about “fear of possible disruption rather than any actual interference,” something the high court said was not enough to violate their rights.
Castillo also noted the student’s essay was part of an assignment where children were asked to speak “to society,” an open call to express a viewpoint.
“We call that a public forum, or at least a limited one, where you’re inviting them to speak,” he said. “In that case the regulation the school can do is only the time, place and manner, but not under a particular viewpoint.”
And perhaps most importantly, Castillo noted, the student’s case was dismissed at the earliest possible point based on qualified immunity. He said federal courts around the country, often in cases stemming from a school board’s fight against the formation of LGBTQ-affirming Gay Straight Alliance groups, have found that the legal doctrine has a history of being overcome when the speech being stifled supports the LGBTQ community.
“There’s nothing inherently sexual about opposing harassment or discrimination, or speaking in support of LGBTQ people,” he said before pointing to the young student’s essay asking for people to “think before they speak.”
“If the exclusion was based on viewpoint, or any worry about what the community might think, it does not hold muster under the First Amendment,” he added.
An email sent to Drain asking for comment after the hearing was not returned by press time.
U.S. Circuit Judges Paul V. Niemeyer, a George H.W. Bush appointee, and Stephanie D. Thacker, a Barack Obama appointee, rounded out Friday’s panel. The judges did not signal when they intended to rule.
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