FACTS:
Plaintiffs Parents Defending Education (“PDE”) challenge a variety of policies enacted by the Olentangy Local School District (the “School District”) governing student expression, including:
- An electronic device policy that prohibits students’ use of personal devices—at any time or place, including outside of school time—to transmit any material that is “disruptive … or that can be construed as harassment or disparagement of others based upon their race, color, national origin, sex (including sexual orientation/transgender identity), disability, age, religion, ancestry, or political beliefs.”
- A policy that prohibits, during any time under the school’s authority, any “discriminatory language,” defined as “verbal or written comments, jokes, and slurs that are derogatory towards an individual or group based on one or more of the following characteristics: race, color, national origin, sex (including sexual orientation and transgender identity), disability, age, religion, ancestry, or genetic information.”
PDE is a nationwide Christian membership organization, whose members include students and parents in the School District. On May 11, 2023, PDE and several of its members filed this lawsuit in the U.S. District Court for the Southern District of Ohio, alleging that these and other School District policies facially violated the First Amendment, and also violated the parents’ Fourteenth Amendment fundamental parenting rights.
Specifically, PDE argues that the policies unconstitutionally compel speech by requiring students “to affirm the idea that gender is fluid,” contrary to their religious beliefs that “biological sex is immutable and that individuals cannot transition from one sex to another,” and that the policies unlawfully require students to refrain from intentionally misgendering their peers. Further, PDE argues that the policies unconstitutionally govern student speech during times outside of the school’s control.PDE moved for a preliminary injunction, and the District Court denied their motion on all claims. PDE appealed to the Sixth Circuit.
LEGAL THEORY:
The District Court’s First Amendment analysis contains a number of serious errors, and several of the School District’s restrictions are overbroad and unconstitutional under the First Amendment. Although intentional misgendering can and likely often does constitute harassment and creates a substantial disruption to the school environment, rules to that effect must be more narrowly drawn and fact-specific, and must be more protective of student speech expressed inside and—especially—outside of the school environment. Because the School District offered accommodations to students to avoid using pronouns where doing so would be contrary to their religious beliefs, the brief also argues that the policies did not compel student speech.
STATUS:
This appeal was filed on July 31, 2023. Appellants’ brief was filed on September 25. We filed our amicus brief on October 2. Multiple other amici also filed briefs on behalf of appellants, however focusing on very different elements than we did. Appellees’ brief was filed on October 24. Amicus briefs on behalf of Appellees were filed on October 31.
On December 19, 2023, we filed a motion to participate in oral argument. Appellants opposed the motion on December 29, and we filed a reply on January 4. On January 3, the Court accepted all submitted amicus briefs. On January 8, the Court denied our request to participate in oral argument. Oral argument was held on February 1, 2024.
On July 29 the Sixth Circuit affirmed the trial court decision, finding that the school district had sufficiently demonstrated that the prohibited speech would be disruptive to classroom instruction, satisfying the Tinker test. Further, it held that the school’s policies do not compel speech or constitute viewpoint discrimination.
Appellants filed a petition for rehearing en banc on August 26. Appellees opposed on October 3. Appellants filed a reply in support of their petition on October 7. On November 1 rehearing was granted. The court set a briefing schedule for the parties’ supplemental briefs and rehearing en banc will occur on March 19, 2025. We filed an en banc amicus brief on December 18, 2024.
