Pronouns, Policies, and the First Amendment: Balancing Free Speech and Inclusivity in Public Schools

The First Amendment’s clauses protecting freedom of speech was revisited recently in the court case Parents Defending Education v. Olentangy Local School District Board of Education, in which parents challenged an Ohio school district's anti-harassment policies surrounding students' pronouns and gender identity. The controversy centers on whether requiring students to use a peer’s preferred pronouns, even when it conflicts against their religious beliefs, violates the first amendment's free speech clause.

Parents Defending Education (PDE), a nationwide organization, whose mission is “to reclaim our schools from activists promoting harmful agendas,” filed a pre-enforcement lawsuit essentially arguing that a variety of Olentangy Local School District’s policies violated first amendment rights [1]. PDE challenges three policies. First, an “Anti-Harassment Policy,” which prohibited “any threatening, insulting, or dehumanizing gesture, use of technology, or written, verbal or physical conduct directed against a student or school employee.” Second, a “Personal Communication Device” policy, which prohibits students from “transmit[ting] material that is threatening, obscene, disruptive, or sexually explicit or that can be construed as harassment or disparagement of others” based on certain protected characteristics, which include “sex,” “sexual orientation,” and “transgender identity”. Finally, the third challenged policy was the Code of Conduct, which includes two provisions: the discriminatory language provision and the “harassment, intimidation, or bullying” provision. Discriminatory language is defined as “verbal or written comments, jokes, and slurs that are derogatory towards an individual or group” based on protected characteristics, including “sex,” “sexual orientation,” and “transgender identity.” While the “harassment, intimidation, or bullying” provision defines the terms together as “any intentional written, verbal, electronic, or physical act that a student has exhibited toward another particular student or students more than once and the behavior causes mental or physical harm to the other student(s) and is sufficiently severe, persistent or pervasive that it creates an intimidating, threatening or abusive educational environment for the other student(s) [2]. PDE argues that all these policies unconstitutionally compel students to affirm that gender identity is fluid contrary to their religious beliefs.

When brought to court, PDE didn’t find any success. The district court ruled against them stating insufficient evidence that the policies were likely to result in irreparable harm or a violation of constitutional rights, particularly because no students had yet been disciplined under the policies. This decision was later affirmed by the Sixth Circuit Court of Appeals with Judge Stranch writing that because a “preliminary injunction is an extraordinary and drastic remedy,” it “may ‘only be awarded upon a clear showing that’ the four preliminary injunction factors—likelihood of success on the merits, danger of irreparable harm, balance of the equities, and the public interest”—favor the plaintiff [3].

The majority also assessed whether the policies violated the standards in Tinker v. Des Moines Independent Community School District, a landmark case that held that public schools cannot prohibit student expression unless it causes substantial disruption or material interference with the educational environment. The court reasoned that students referring to others by non-preferred pronouns could substantially disrupt the educational environment, citing research indicating that misgendering contributes to psychological harm [4]. PDE argued against this point by stating that the evidence provided was insufficient to establish that using non-preferred pronouns would result in substantial disruption, arguing instead that this case aligns with precedents where speech restrictions were deemed impermissible. However, under Tinker, school officials aren’t required to show evidence of actual disruption before regulating speech. Tinker permits regulation of student speech where officials reasonably anticipate that it will likely cause significant disruption [5]. Because of this, PDE failed to clearly show prohibiting this speech violates Tinker. 

Viewing this case and all the arguments presented, the ACLU filed an amicus brief. Their argument essentially stated that while public schools have a duty to foster free expression, this obligation must be balanced against their responsibility to prevent harassment and ensure a non-hostile environment. The organization acknowledged that intentional misgendering could, under certain circumstances, constitute harassment severe enough to create a hostile educational environment. However, the ACLU also critiqued the district court's narrow focus on intentional misgendering. It pointed out that the broader implications of the policies' language should have been analyzed. The ACLU expressed concern that the overly broad definitions of "discriminatory language" and "harassment" might chill protected speech beyond what is constitutionally permissible [6]. Furthermore, critics of the court’s decision have expressed that the ruling sets a precedent for limiting students’ free speech based on subjective assessments of psychological harm.

The decision in Parents Defending Education v. Olentangy Local School District Board of Education illustrates the complexities of balancing constitutional rights with the need to create a safe and respectful educational environment. While the court may have affirmed the policies in place as necessary and reasonable to prevent disruption, the case still highlights the ongoing tension between the first amendment’s free speech clause and anti-discrimination policy. 

Sources:

1. Sabrina Conza, Sixth Circuit upholds overbroad speech policies in parents defending Harvard Law Review (2024), https://harvardlawreview.org/blog/2024/09/parents-defending-education-v-olentangy-local-school-district-board-of-education/#_ftn1 (last visited Nov 17, 2024). 
2. Parents Defending Education v. Olentangy Local School District Board of Education, No. 23-3630, (2024).
3. Id.
4. Parents defending education v. olentangy local school district board of education (2024) | Findlaw, https://caselaw.findlaw.com/court/us-6th-circuit/116434159.html (last visited Nov 17, 2024). 
5. Id.
6. https://www.acluohio.org/sites/default/files/parentsdefendingeducation-v-olentangylocalschooldistrictetal_amicusbrief_2023-1002.pdf