Sexual Orientation and Identity: Political and Legal Analysis

BOOK: Sexual Orientation and Identity: Political and Legal Analysis

Book by Lydia E. Lavelle and Shannon Gilreath

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CHAPTER 3 Treatment of LGBT, Questioning, and Gender Non-Conforming Youth


For much of our country’s history, admitted gay youth or children suspected of being gay were subjected to untold horrors in an effort to “cure” their aberration. After the horrors of medicalization, LGBT9 youth have been the target of anti-gay violence and abuse in schools and elsewhere, from other children and even from adult school officials. This chapter chronicles the efforts of LGBT youth to combat abuse and efforts to silence them in schools. Statistics about gay youth, personal stories and “reparative therapy” efforts mix with cases describing the battle for survival still facing many gay youth today.


  1. OVERVIEW OF THE PROBLEM10 At its root, homophobia is ignorance, yet the vast majority of schools are unwilling or unprepared to do anything about it. Other harmful prejudices are regularly challenged, in the interest at least of practical harmony if not of true multiculturalism. Yet a stubborn double standard prevails. It is easy to find schools, even some that are otherwise progressive, where “kids notice that when a racial slur is written on a wall, there is a fuss, but ‘fag’ on a locker remains for days, unremarked.” The consequences for students of the failure to address such issues are serious: a distorted view of human nature, bigotry, self-hatred, and violence. Teaching about gays and lesbians and the diversity of their community would help reduce these problems. Yet school-based tolerance programs are almost always restricted to religious, racial, and ethnic understanding. Although teachers



might draw attention to the links among other prejudices, they often see homophobia as separate, unrelated, and beyond the scope of the K–12 syllabus. Few school leaders recognize how homophobia is related to student promiscuity, substance abuse, academic problems, and suicide. Nor do they acknowledge its connection to violence among heterosexual youth: that is, boys often beat other boys and batter girls to distance themselves from gayness. The vast majority of juveniles arrested for violent crime are male. They take foolish personal risks and shun academic success to prove they are not faggots. Some Facts11 [A] 2013 survey of 7,898 middle and high school students found that at school more than half of LGBT students (55.5%) reported feeling unsafe because of their sexual orientation. Almost one third of LGBT students skipped at least one day of school in the past month because they felt unsafe or uncomfortable. An analysis [of survey data] over 10 years showed that since 2001 there has been a decreasing trend in the frequency of hearing homophobic remarks and negative remarks about someone’s gender expression; Since 2011, there has been a significant decline in victimization based on sexual orientation. [Key findings of the survey included the following:] •   74.1% of LGBT students reported being verbally harassed, 36.2% reported being physically harassed and 16.5% reported being physically assaulted at school in the past year because of their sexual orientation. •   55.2% of LGBT students reported being verbally harassed, 22.7% reported being physically harassed and 11.4% reported being physically assaulted at school in the past year because of their gender expression. •   49.0% of LGBT students reported experiencing being harassed or threatened by students at their school via electronic mediums (e.g., text messages, emails, instant messages, or posting on Internet sites such as Facebook). •   64.5% heard homophobic remarks, such as “faggot” or “dyke,” frequently or often at school.


77 •   55.5% of students reported that they felt unsafe in school because of their sexual orientation, and more than a third (37.8%) felt unsafe because of their gender expression. •   30.3% of LGBT students missed at least one day of school in the past month because of safety concerns. •   The reported grade point average of students who were more frequently harassed because of their sexual orientation was half a grade lower than for students who were less often harassed (2.8 vs. 3.3). Students who were more frequently harassed because of their or gender expression was almost half a grade lower than for students who were less often harassed (2.9 vs. 3.3). •   Increased levels of victimization were related to increased levels of depression and anxiety and decreased levels of self-esteem. •   Being out in school had positive and negative repercussions for LGBT students; outness was related to higher levels of victimization, but also higher school belonging and well-being. [The survey identified positive intervention and support mechanisms:] •   Having a Gay-Straight Alliance in school was related to more positive experiences for LGBT students, including: hearing fewer homophobic remarks, less victimization because of sexual orientation and gender expression, and less absenteeism because of safety concerns. •   The presence of supportive staff contributed to a range of positive indicators including fewer reports of missing school, fewer reports of feeling unsafe, greater academic achievement, higher educational aspirations and a greater sense of school belonging. •   Students attending schools with an anti-bullying policy that included protections based on sexual orientation and/or gender identity/expression heard fewer homophobic remarks, experienced lower levels of victimization related to their sexual orientation, were more likely to report that staff intervened when hearing homophobic remarks and were more likely to report incidents of harassment and assault to school staff than students at schools with a general policy or no policy. •   Despite the positive benefits of these interventions, only half of LGBT students (50.3%) reported having a Gay-Straight Alliance at 78 school, less than two thirds of students (61.0%) could identify six or more supportive educators and only a tenth (10.1%) reported attending a school that had a comprehensive anti-bullying policy. [The survey also studied school climate over the time period from 2001–2013:] •   There is a general trend that homophobic remarks are on the decline. The percentage of students hearing these remarks frequently or often has dropped from over 80% in 2001 to just above 60% in 2013. •   LGBT student experiences of harassment and assault have declined. Although the degree of change was not as pronounced for physical harassment, it was significantly lower in 2013 than all prior years. Physical assault was its lowest since 2007. •   There has been an increase over time in the presence of several LGBT-related resources and supports in school, specifically: Gay-Straight Alliances or other student clubs that address LGBT issues in education; school staff who were supportive of LGBT students; and the availability of LGBT-related curricular resources with the exception of LGBT-related library resources. II.   GROWING UP GAY A.    A Queer’s Own Story12 Brooklyn isn’t the easiest place to grow up, especially if you’re a homo. My cousin Marilu (short for Maria Lucia) was my best friend when I was five. It was perhaps through her, at that young age, that I realized I was queer. I use “queer” in the most traditional sense of the word, because I discerned that I was very different from most other little boys in the neighborhood. Like Marilu, I had felt affection toward boys as far back as I could remember. She and I used to talk about the ones we had crushes on. I sensed at that age that I wasn’t supposed to be like Marilu in this regard, but still, it felt natural. And Marilu, bless her heart, didn’t mind…. At the same age, I was discovering that I was left-handed. I remember being told that left-handedness was uncommon; yet people seemed to accept it. But 79 things weren’t always that way. My parents and aunts and uncles told me stories of how, just one generation before mine, nuns in Catholic schools used heavy wooden rulers to smash the left hand of anyone they caught trying to write lefty; sometimes they hit hard enough to make the pupils’ hands bleed or fracture their bones. Lefties were forced to write with their right hands because left-handedness had for centuries been associated with the Devil in the eyes of the church. It wasn’t until the late fifties (at least in Brooklyn) that Catholic schools had accepted lefties, decades after science had decided that left-handedness was natural and normal. I remember asking myself, when I was five why, if they could look at being a lefty as uncommon but acceptable, they couldn’t view being a sissy in the same way. I soon realized that when it came to religion, especially Roman Catholicism, logic didn’t matter. I also discovered that in the culture in which I was being brought up, preserving la famiglia was more important than anything else. And being a lefty was one thing, but being a sissy just didn’t fit in with preserving la famiglia…. I had excellent grades and was a generally happy kid. With sandy-blond hair, blue eyes, and a button nose that everyone tweaked, I knew I was cute and played it to the hilt. I was a loudmouth too, always trying to be the center of attention and always managing to be popular. But by third or fourth grade things began to change: Suddenly, the boys were calling me a faggot. My happy nature grew more subdued…. I couldn’t understand why I was being called names. It was devastating. “Sissy!” “Faggot!” “Queer!” The boys were cruel. I wasn’t those things, I kept telling myself. Still, that word “sissy” stuck out in my mind because my father had used it, too. I realized that this sissy thing must be a lot worse than I’d thought at first; it must be absolutely unacceptable. I would have to prove that I was just like the other boys. I would have to prove that I was a man, not a sissy, a faggot, or a queer. In the working-class Brooklyn Italian tradition, my father had taught me that if anyone used an ethnic slur, hurling a remark at me like “wop” or “greaseball,” I was supposed to punch that person in the face. He’d taught me how to fight. I decided to transfer this strategy to being queer—even though I wasn’t accepting, or even admitting to myself, the fact that I was such a ghastly thing—and so I began hitting whoever called me names. That got me in a lot of trouble in the early years. Worse yet, I wasn’t only hitting the kids who were calling me names. I was going after other kids who’d been called faggot too, so that I could 80 prove that I agreed they were freaks and distance myself from them. I became a queer-basher to prove I wasn’t queer…. As we got older, entering the fifth and sixth grades, and people began hitting puberty, the girls also started to call me a fag. They now had to distance themselves from me because they wanted to date boys who made fun of me. I, in turn, to prove my manhood, asked out just about every pretty girl in my grade. All of them turned me down. I was a laughingstock. The name-calling got worse. Every day was hell, and I began to dread going to school. I did everything I could to avoid being noticed. I stayed quiet and tried not to answer questions. I didn’t even laugh at jokes. At home, I had my few friends on the block who’d always been my pals. I spent some time with them but I spent more and more time alone, in my room or walking in the woods. I would fantasize about other places, other worlds. I started writing these ideas down, and was soon writing science fiction stories thirty and forty pages long. Escaping into those worlds kept me going. But I always had to come back to reality…. It was all very hard to comprehend. I knew that somehow the name-calling was tied to these feelings I’d always had toward boys. On top of it all, I realized that these feelings were sinful—they just had to be—and I felt dirty for having them. I alternately asked God for forgiveness and cursed him for making me this way. That, in turn, made me feel even more guilty. I pleaded with God, begging him to change me, to make me normal. Why, I asked him over and over again, did you do this to me? But I couldn’t blame God. After all, he was flawless, I was told. I concluded, time and time again, that this was all my fault and that I was simply a bad Christian. I felt that the only way to redeem myself was to confess it all. But I wouldn’t dare tell this to a priest. I was literally afraid for my safety, so I lived with the shame…. One day I raised my hand in class and asked one of my teachers, Mr. Reed (in the higher grades there were lay teachers because of a shortage of nuns), if I could go to the bathroom. It had been a particularly rough day; earlier, a group of kids had spat on me while shrieking “Queer!” I went into the bathroom and began crying and banging the walls. I then tore out of the building and walked around the school grounds for a while, eventually hiding in some bushes. About two hours later, I came back. The entire faculty was in a panic. They had been searching the building and were just about to call my parents. My whole class was concerned, too. Mr. Reed saw that I’d been crying. We went for a walk outside. “Did something happen at home?” he said. “No,” I replied. “It’s the kids at school.” 81 “I think I know what it is.” I began to cry. “Are they calling you names?” he asked. “They call me a faggot and a sissy,” I answered. “I just can’t take it anymore. I don’t know what to do. It drives me crazy. Everyone hates me.” He looked me in the eye and said, “Listen to me. I’m going to go inside and talk to the class before you come in. But I’m warning you, that’s not going to change things too much. This is going to go on for quite some time. It’s horrible. I know. But you have to be strong. Do you understand me?” I nodded. “One day,” he continued, “everything will be fine. You will be happy. But that may be a long time from now. You’ve got to endure this. I promise you, if you do, everything will be great. But you’ve got to be strong, okay? Do you promise?” I nodded, although I didn’t really understand what he meant at the time. Years later, of course, I realized that Mr. Reed, a forty-year-old “bachelor” at the time, was also queer. He was trying to reach out to me but was limited in doing so for fear of losing his job, especially then. If only he could really have spoken frankly with me about this. If only there had been some older person—a teacher or a counselor—with whom I could have openly discussed these feelings. I’d have been spared so much pain and suffering. But, of course, there wasn’t such a person. When I went back into the classroom, Mr. Reed had chastised the class for being hateful and calling me ugly names. Everyone was nice. People came up to me separately and told me they were sorry. Some actually said they’d never realized it bothered me. Others said that if I ever wanted to talk to them about it, they would be there for me. But within a month, the vicious name-calling resumed. I was forever a “faggot.” … At that time, I sought out some information on homosexuality. I was desperately hoping to be offered a “cure.” Our family encyclopedia told me that this “deviant behavior” was difficult to root out after the individual had engaged in it for a long time, and it blamed mothers for the “problem.” It said that homosexuality was caused by environmental factors, and there was a reference to the “homosexual-producing mother”—who, the encyclopedia said, was more 82 prevalent among Italians and other Latins than among other ethnic groups. At first I was devastated, but I soon became suspicious of the information. It wasn’t that I knew at that time how false and misogynistic the analysis was; I simply knew that my mother had nothing to do with this. However, I grew extremely depressed. There was no accurate information available to me…. I felt I had to date girls to prove not only to everyone else, but to myself, that I was a heterosexual. I began seeing a girl at school, a new girl who’d transferred in. The affair helped my image. I was in the eighth grade by then, and the guys stopped calling me names, it seemed, out of respect for my girlfriend. It appeared as if I’d proven my heterosexuality to them. Karen was a pretty blond girl but she didn’t really interest me. More than that, I didn’t really enjoy being physical with her. Kissing was okay, but I had no desire to have intercourse with her. After a while, she got bored and dumped me. I was devastated—not because I’d lost her, but because I’d lost my cover. Some of the guys actually started saying Karen had left me because I was a fag. Thank goodness I was graduating that year. High school would be a whole new world, a clean slate. No one would know anything about me. And I’d make sure that I appeared completely heterosexual. I would not hang around with girls, and I would keep playing football—even though I hated it. I was enrolled in Monsignor Farrell High School, a private, Catholic, all-boy school. It was the best school on the island and one of the finest in the state; it accepted only those who scored highest on the entrance exams. Farrell was a competitive school that prepared students for the top universities in the country, and it had the best high school football team in New York State…. [F]ootball had beefed me up. Now I was beating people up everywhere—in the cafeteria, in the library, in the bathroom. Anyone who called me a fag received a punch in the face. I had learned one thing: how to shut them up. I was a strong kid with a powerful left hook, and I could take on guys twice my size. My temper would rage, and I’d pummel my enemies to the ground and then sit on them, claiming victory. It was humiliating for them because a “fag” had beaten them up in front of everyone. But they’d never say anything nasty to me again because they were afraid I’d go crazy on them. However, no matter how vicious and mean they were to me, no matter how ugly their taunts, I felt terrible after beating them up, after that aggression dissipated. Each time, I’d cry myself to sleep that night, upset that I had hurt someone else. This went on for almost two years. Then I got into one fight too many and was called into the principal’s office. He said if my fighting didn’t stop I’d have to 83 leave the school. He wanted to know why I was always in fights, but I refused to tell him. After an hour or so, he called in one of the brothers to counsel me. This was a man who I always suspected was gay. In fact, there had been some rumors about him. I told him, in private, that I was fighting the other guys because they were calling me a queer. “You know,” he said, “because this is an all-boy school, and because people are so envious of the students who attend, many on the outside say cruel things, I know, in order to intimidate the students here.” That was true. If you attended Farrell, you were a “Farrell fag.” It was a running joke all over the island. “Because of that,” the brother continued, “many of the students here internalize that name-calling and take it out on each other. They’re so afraid of being called these things themselves that they attack others in the school first.” “Well,” I responded, “it’s not entirely untrue.” “What’s not entirely untrue?” I was getting up the gumption to actually tell someone about myself, someone who I felt understood the situation. “I do have these feelings,” I continued. “And things have happened.” “What are you saying?” He seemed to become incensed. I suddenly realized he was not the person to tell. “Nothing, sir. Forget it.” “Wait right here,” he told me. He went back out and spoke with the principal for quite some time. I then was called into his office. The dean of students, Father Finn, was also there. “Mike,” the principal said, “we don’t think you’re happy here. We think you would be better off on the outside, at a public school. We’re not going to expel you. It’s up to you. But I think you should go.” My mother was then called in and was told that I wasn’t happy at Farrell, that I’d been in fights and that this type of disciplined environment wasn’t right for everyone. They told her that I’d suggested I’d like to leave and that they had agreed…. Growing up is hard, especially if you’re a homo…. 84 HEALTH ISSUES Signorile’s essay highlights some of the destructive consequences of harassment, bullying, and internalized homophobia for gay youth. Although computations vary from study to study, nearly all reported studies reveal serious negative mental and physical health issues facing LGBT youth. For example: •   1 in 5 HIV-positive men were apparently infected during their adolescent years. •   68% of adolescent gay males use alcohol (26% or more at least once a week); 44% use other drugs. •   83% of adolescent lesbians use alcohol and 56% use other drugs. •   31% of LGB students have used cocaine as opposed to 7% of non-LGB students. •   62% of LGB students smoke as opposed to 35% of non-LGB students. •   32% of LGB students have gotten pregnant or gotten someone pregnant as opposed to 12% of non-LGB students. •   30% of gay and bisexual adolescent males attempt suicide at least once. Gay and lesbian youth represent 30% of all completed teen suicide: extrapolation shows this means a successful suicide attempt by a gay teen every 5 hours and 48 minutes. LGB students are four times more likely to attempt suicide than non-LGB students. ____________ B.    The Rev. Irene Moore’s Personal Story13 “I ain’t raising no goddamn bulldagger up in my house. Before I do that I’ll send your ass right back to that damn agency where I got you.” Whenever my behavior revealed the slightest hint of masculinity, my foster mother always used those words to threaten me with expulsion from her house. 85 My infraction one Saturday morning was getting caught playing an aggressive game of handball in the August heat with our neighbor’s boys…. My residency in my foster mother’s house was always tenuous. It hinged precariously on my being a number of things for her, one of which was a dainty little girl. I desperately tried to be that little girl. However, sometimes I failed her. And in those times, before I learned to censor my undainty ways, the wild and happy and athletic butch girl in me would break loose. And I realized, in those wondrously fleeting moments, that not only did I enjoy competitive rough-and-tumble sports with boys, but also the sexual exploration that came with the sensuous joy of a touchy-feely game of “doctor” with girls. At age six, my behavior was easily explained as precocious and cute; I was a tomboy who would outgrow this preadolescent phase once I learned cultural norms. However, by age sixteen I showed no signs of changing. Instead of precocious and cute, I was seen as a developmentally arrested teenager. The slang word for my “illness” was bulldagger, a colloquialism once commonly used in the African-American community to denote a masculine lesbian. This pejorative term had both tremendous sting and stigma, and my foster mother used it not only to spew her venom about my behavior but also to evoke fear in the hopes that it would straighten me out. It didn’t. I like women! The realization of my attraction to them was affirmed weekly as I delighted in looking at the voluptuous mocha-colored to honey-brown complexioned centerfolds in Jet magazine. Oh how I dreamed of being sexy like those women so that they would lust and long for me the way men lusted and longed for them. And with my nightly fantasies of Jet centerfolds eyeing me, finally, I thought, I would make things up to my foster mother: Since I hadn’t been able to be her dainty little girl, I would become her ultra-fem teenager. I probably shouldn’t have told my foster mother the reason why I wanted to become ultra-fem—so other women would like me. She yelled at me for my twisted thoughts, warning me that I would be homeless if I didn’t take her demands that I become a normal girl seriously. My minister said I would go to hell if I didn’t rebuke the homosexual demon in me and be spiritually treated by him. As a ward of New York State, I had a third authority figure in my life: a social worker assigned to me by the Bureau of Child Welfare. And of the three—my mother, my minister, and my social worker—it was my social worker who showed the greatest optimism for my becoming a healthy heterosexual. 86 According to her, my sexual confusion was a textbook case. Having lived with my birth mother for six months before she abandoned me in a trash can in Fort Greene Park in Brooklyn, my behavior was merely an expression of my continuing search for her. In her usual distant and clinical tone, my social worker explained that the “tactile deficit” experienced by a child deprived of a parent’s touch during infancy is often expressed sexually with someone of the same gender as the missing parent. I interrupted her to point out that I was missing both parents. Annoyed, she snapped back that it was the gender of the parent I missed most or who had hurt me most. Both my foster mother and my minister accepted her explanation. So they sent me to weekly psychotherapy sessions, but I showed no progress. The child psychiatrist and my social worker seemed to realize I was incurably gay, incapable of modeling societal gender norms, and the frustration showed in their faces. At that point, my social worker gave me some advice: pretend to be straight. Here was her reasoning: In those days, before there were group homes and interracial adoption, African-American and Latino foster kids were the hardest to place (and still are). With many more children in need than foster homes available, my being a troubled African-American homosexual teenager assured me neither long-term housing nor permanent placement. Her stories of the many foster children thrown out of foster homes for lesser infractions than being homosexual scared me enough to act straight. Moreover, she believed in behavior modification to change dysfunctional behavior patterns and remediate damaged thinking so one can better interact with the world. With her advice, I began accessorizing myself with the outward accoutrements of heterosexual culture. Being captain of the girls’ track and volleyball teams kept the question of my sexual orientation on the front burner for my foster mother, minister, and social worker, so I became a cheerleader. My biggest and best cover-up was my six-foot-three high school basketball-playing boyfriend. And while the cover-up worked beautifully Monday through Friday at school, I never felt comfortable with the lie I had created when I was in church on Sunday. The centrality of the black church in African-American communities shapes the attitudes and mores of both its “churched” and “unchurched” residents. I joined my church at age five, was baptized at six, and served on the junior usher board from ages six until sixteen, becoming president of the junior board by fifteen. I still remember the first day my minister called me into his study to share Jesus’s special love for children. He read the Bible passage in Mark 10:13–16: 87 “People were bringing little children to Jesus to have him touch them, but the disciples rebuked them. When Jesus saw this, he was indignant. He said to them, ‘Let the little children come to me, and do not hinder them, for the kingdom of God belongs to such as these. I tell you the truth, anyone who will not receive the kingdom of God like a little child will never enter it.’ And he took the children in his arms, put his hands on them and blessed them.” He told me no other place in the world so welcomes all children—especially orphans—as the church. And since my church, a pillar of the community, was so welcoming, it was a nod for the larger community to welcome me, too. Growing up in the church was a refuge from the hostile and violent worlds of my environment and foster home, feeding and clothing me both physically and spiritually. To me, aside from Martin Luther King, Jr., my minister was one of the best representations of doing God’s work in the world and an exemplary disciple of Jesus because he, like Jesus, loved me. Therefore I took his advice and admonitions about unjust acts and ungodly behavior seriously. Over the years, I frequently met with him in his office—to sign an embarrassing report card, explain receiving detention for cutting class, discuss why I wanted to join the Dance Theater of Harlem instead of going to college, debate scripture or world events, and get advice on how to be a good Christian. I will always remember my last visit to his office, when I was sixteen. It was my desire to be a good Christian that led me to make the appointment. When we met, I told him that my boyfriend wanted to have sex but the feeling wasn’t mutual. I also confessed that if there were anyone I’d want to be with in that way, it would be my girlfriend. As always, he listened attentively. Then he came around the desk with his Bible in hand and told me to open my Bible. He read Leviticus 18:22: “Do not lie with a man as one lies with a woman; it is an abomination.” Next he told me to read aloud Romans 1:26–27 in which Paul writes, “Because of this, God gave them over to shameful lusts. Even their women exchanged natural sexual relations for unnatural ones. In the same way the men also abandoned natural relations with women and were inflamed with lust for one another. Men committed shameful acts with other men, and received in themselves the due penalty for their error.” When I finished reading, he slammed his Bible shut, knocked mine out of my hands, and said not only was I causing God’s wrath, but also his own. Like my social worker, he too believed in behavior modification: He explained that if I pretended to like natural sexual relations with men I would eventually come to 88 love it. However, he said, the best person to teach me was not my boyfriend, but him—and he was going to teach me now, once and for all. The scuffle that ensued caught the attention of two male deacons, who ran frantically down the hall and knocked on the door. When my minister swung the door open, the deacons could see furniture overturned and the contents of his desk on the floor. Noticing that my minister and I were both straightening our clothes, the deacons asked what was the matter. My minister said, “I was fighting this harlot off me. After all these years of being a father figure to her I couldn’t imagine anything like this.” News spread through the church and the community, with most people, even my foster mother, questioning the veracity of the story because there had been rumors of his predilection for young girls. Nevertheless, because I brought shame to the minister, in less than a week, with a black garbage bag of my worldly possessions in tow, I was an emergency placement in another foster home. When I told my new foster family what had happened, they threw me out of their house for fear that my homosexuality would lead me to prey on their other female foster kids or cause them to “catch it” from me. With no place to go—no help from the foster care agency and the loss of both my community and my church—I would have attempted to take my life were it not for the help of my high school guidance counselor and teachers. When I left for college in the 1970s, I was the beneficiary of three civil rights movements—black, women’s, and gay. I assumed my choice of school—renowned liberal Massachusetts women’s college, Wellesley—would be the most open and affirming. It wasn’t. Although Wellesley had many white openly lesbian students, the African-American ones were closeted. Controlled by the homophobic ethos of black nationalism, as well as the social isolation and cultural intolerance of the campus milieu, many of us African-American lesbian sisters performed our requisite black heterosexual roles in order to be part of the black community. I played my role so well that by my senior year, I was elected president of the black student governing body. After college, I decided to attend seminary. I wanted to go to an African-American seminary because I felt there was no better place to learn about the black church. But by this time I had come out, and the two African-American seminaries to which I applied had rejected me because of my sexual orientation. Instead I attended Union Theological Seminary in New York and then Harvard Divinity School, where as a doctoral student my focus became gay rights. In recent years, the black church has yet again rejected me. Because I am openly lesbian, I 89 have not found a home church in my faith tradition from which to do AIDS ministry—and black heterosexual women are the new face of HIV/AIDS, so there is much work to be done. So I have become a public theologian. I have found a home and my ministry on the streets, with Boston’s gay, lesbian, bisexual, and transgender community. The foundation for my life’s work is in what Jesus said in Matthew 25:45: “In truth I tell you, in so far as you failed to do it for the least of these, however insignificant, you failed to do it for me.” My work is a public theology in tandem with a struggling community. While it is easy to see how economic disadvantage because of racial bias leads people of color to the streets, it is less determinable as to how many gay people are forced into homelessness. Abandoned by family and friends because of their sexual orientation, many have only the streets. Part of my outreach ministries is reporting on religion in the news for gay and mainstream publications. In this era of dominance by the Christian Right, I try to inform the public of the role religion plays in discrimination against gay people. And because homophobia, like other prejudices, is a hatred of the “other,” and usually acted upon in the name of religion, my writing allows me to highlight how intolerance and fundamentalism not only hurt the gay community but also perpetuate other forms of oppression such as racism, sexism, classism, and anti-Semitism. And in the process, prejudice and intolerance in the name of religion also shatter the goals of American democracy: life, liberty, and the pursuit of happiness for every citizen. C.    The Religious Right’s “Ex-Gay” Movement14 From his seat in the rear of a sparsely furnished room on the second floor of Miami Shores Baptist Church, the immaculately groomed Joe Alicea—a self-described former homosexual—leans back, kicks up a shiny black shoe, and crosses one starched navy pinstripe pant leg neatly over the other. … Six men and three women, perched on folding plastic chairs encircling him, are completely still. They all “struggle” with same-sex attraction: the cave-eyed, overly thin female student; the married Hispanic man with three kids; the clean-cut 90 Midwestern boy in an orange baseball cap; the bubbly young Latino; and the stocky, guilt-ridden Sarah. Eyes closed, chin nestling on her white cotton shirt, 24-year-old Sarah (New Times has changed her name to protect her privacy) nods her head in agreement: “Yes, yes,” she mutters—more for her own benefit than to be heard. “Amen.” Balling her thick hands into tight fists and digging them into her black slacks, the five-foot nine-inch Sarah raises her face and gives her fellow struggler a sympathetic glance. She knows firsthand the arduous journey from gay to straight. The confusion. The frustration. The denial. The rage. The regret. The self-hatred. At age 10 Sarah lusted after the players on her school’s girls’ softball team. At 17 she had her first sexual encounter, with a female. At 21 she met the love of her life—a woman. But for God to love her, Alicea teaches and Sarah believes, she must live righteously. And that means becoming “clean,” stopping the scythe of shame slicing and scarring her life. She must wipe the stain of homosexuality from her soul. Five years ago Sarah, who lives in North Miami Beach, entered the welcoming arms of Fort Lauderdale-based Worthy Creations, an interdenominational organization that shepherds gay men and women toward heterosexuality. Since its inception in 1986, Worthy Creations has been an active member of what has been dubbed the ex-gay movement. Champions of the nationwide campaign consider homosexuality a moral or mental condition that can—and should—be treated. They say same-sex attraction is caused by early-childhood sexual abuse, or trauma brought on by lack of same-sex parental affection that causes homosexuals to seek attention from members of their own sex. Supporters of the movement fiercely reject the idea that people are born gay, arguing that homosexuality is a learned behavior. Above all, they regard it as an abominable sin. The crusade to make gay people straight coalesced in the mid-Seventies, but it has picked up steam in recent years. Today it includes a Catholic group financially supported by the Archdiocese of New York, Courage International, which counsels gays to be abstinent; Homosexuals Anonymous, a Pennsylvania-based Christian fellowship patterned after Alcoholics Anonymous, which charges that homosexuals lead “failed lives” and calls their sexuality a “character defect” 91 that can be treated with a fourteen-step program; and the nation’s mother ship of the ex-gay movement, Exodus International. From its Orlando headquarters, Exodus acts as a spiritual umbrella for an estimated 150 predominantly evangelical ministries across the country. Worthy Creations is Exodus’s South Florida affiliate. … Thomas purports the “hundreds of thousands” of homosexuals Exodus has treated found “freedom” through prayer-based counseling and reparative therapy, a controversial technique supported by the National Association for Research and Therapy of Homosexuality (NARTH), a 1000-member, California-based coalition of secular psychiatrists. Cases of reparative therapy (also referred to as conversion therapy) documented by Mel Seesholtz, Ph.D., in the Online Journal, involve attaching electric sensors to the genitals and then administering a shock at any sign of arousal by same-sex images. Other cases cite exorcism, sedation, isolation, physical restraints, and hypnosis. NARTH was founded in 1992 by Joseph Nicolosi (who also declined an interview with New Times). Its Website provides links to medical studies that show statistical data in support of reparative therapy. Among them is a paper presented by the American Psychological Association’s Dr. Robert Spitzer at a 2001 APA convention. Spitzer claims 66 percent of men and 44 percent of women who received reparative therapy for his study achieved “good heterosexual functioning.” Yet many reparative therapy studies NARTH cites are filled with methodological ambiguities and questionable results, according to psychiatric experts outside the organization. Indeed Spitzer’s was discredited. Immediately following his study’s publication, the APA issued an official disavowal of the paper, noting it had not been peer-reviewed and bluntly stating, “There is no published scientific evidence supporting the efficacy of reparative therapy as a treatment to change one’s sexual orientation.” “One of the reasons there isn’t any data,” says Thomas, “is because the APA has a lot of internal politics determined by gay activists within their own ranks. There are plenty of people in the APA who are willing to ignore my reality and use their own bias to stop studies that would actually prove that change is possible.” 92 Dr. Gerald Schoenewolf, a member of NARTH’s Science Advisory Committee, agrees. He recently published a report on NARTH’s Website that states the APA, to which he belongs, “has been taken over by extremist gays.” He also claims Africans were “better off” in slavery and that the civil rights, women’s rights, and gay rights movements are “irrational” and “destructive.” On a recent Tuesday evening, as she has done almost every week for the past five years, Sarah joins Joe Alicea and the Worthy Creations crew in Miami Shores for a strugglers’ support group. With each meeting, Sarah says, she inches further along the road to change, loosening her ties to homosexuality and nudging her closer to breaking free from the shackles of sin. In the half-decade since joining the ex-gay ministry, Sarah has not had any sexual contact with a man. She hasn’t felt an urge to kiss one yet, either. In fact she hasn’t even reached the point of wanting to go out on a date with a guy. But she is convinced she will someday. “I’m not there yet, that’s all. It’s a process; it takes time,” she says with a halfhearted smile. “Am I attracted to men? Of course,” she adds. Asked what kind of physical traits she finds attractive in men, she repeats the question and then pauses. “It’s more about who the person is inside.” Sarah is more effusive about her former attraction to women. “What kind of girls did I like? All types, you name it. They ran the gamut from curly hair, straight hair, blond hair, dark hair, olive-skinned, white, blue eyes, brown eyes,” she bubbles. “I like athletic girls, ones who like sports. Thin, tough, physically fit, in shape. And confidence—I loved girls who knew what they wanted and weren’t afraid to show it…. Yeah, confident girls.” Tonight she must purge all thoughts of lithe, athletic, confident females. At the Worthy Creations meetings, the shy girl, who confesses she doesn’t really have any good friends, must become an army of one, readying for battle before a crowd of peers. The enemy: her own tortured soul. “The Lord can deliver us from our sexual brokenness,” intones Alicea, who says he left the gay lifestyle half a decade ago and credits his sexual awakening to the healing powers of Jesus…. “It’s not easy,” scoffs Alicea, recrossing his legs and clasping his hands over a knee. “But we are not born into homosexuality and we do have a choice,” he adds, shifting his attention to Sarah. “Would you like to go next?” 93 Sarah inhales, smiles awkwardly, and casts her eyes to the floor. Confession time. “This has been a hard week for me,” she mutters, “but I’ve realized some things. I became attracted to women because I didn’t get the love I needed from my mom. I know that now.” Clenching her fists, she digs them into her thighs and begins jiggling her right leg. “I craved female attention because I never got it from her….” Clench, dig, jiggle. “She was emotionally absent….” Mom was reserved, dominating, and cold, Sarah says. Grandma was bipolar, and Sarah thinks Mom was abused: “She alluded to it, but she never gave me specifics.” When Sarah was a baby, Mom divorced Sarah’s biological father and then remarried. The little girl who always tried to please inherited five stepsiblings. Clench, dig, jiggle. And a sexually deviant male neighbor. Clench, dig, jiggle. “I was eight years old,” she says. “I went to get the mail and I had to pass his house, and he called me over … lured me in with Christmas presents…. He was handicapped, in a wheelchair. He started kissing me, holding me, hugging me … lifted up my shirt … made me touch him….” Clench, dig, jiggle. “After, I ran back into our house. I felt dirty, ashamed. I cried. I was mad—at my mom. She should have stopped it, should have been there.” “Did you tell your mom you were sexually abused?” prompts Alicea. Lifting her chin toward the ceiling, Sarah shakes her head no and digs her white knuckles further into her thighs. She opens her mouth to respond, but nothing comes out. “Have you told her since?” he pushes. Clench, dig, jiggle. She shakes her head again, red hair swaying limply around broad shoulders. She takes a deep breath. “I felt very alone when I first came here.” Voice quivering, thick with shame, she is syllables away from tears. “When I realized after coming here I wasn’t born this way, that the things that have happened to 94 me in my life made me this way, that I could change … I’ll do whatever it takes for God’s love. “He’s my best friend.” Alicea finds her eyes from across the room and holds her gaze. “God does love you,” he says tenderly to his disciple, “very much.” Tears stream down her pale face. “All these events play a part in our struggle,” Alicea continues. “You must understand that.” Sarah is quiet. She looks bled dry. … When Exodus was just three years old, cofounder and ex-gay Michael Bussee fell—for Exodus volunteer and fellow ex-gay Gary Cooper. The two left their wives, shacked up, and exchanged wedding bands. This past month, on, Bussee issued a formal apology for creating an organization he calls a fraud that hurts people and promotes self-hatred. “One [ex-gay] got drunk and deliberately drove his car into a tree,” Bussee wrote. “Another told me that he had left Exodus and was now going to straight bars—looking for someone to beat him up … made him feel less guilty. One of my most dedicated clients … took a razor blade to his genitals, slashed himself repeatedly, and then poured drain-cleaner on the wounds, because after months of celibacy, he had a ‘fall.’ ” … A slender, tan young girl in hot pink shorts jogs past Sarah. She pretends not to notice, but the slight tilt of her chin belies her stab at deception. Seconds later she stomps up a ramp that leads to a makeshift construction office near the project she presides over in North Miami Beach. Sarah is an engineer. Dressed in dark jeans and a blue V-neck T-shirt, she is getting ready to leave work and lock up for the night. Her listless strawberry hair, carelessly parted in the middle, hangs limply around her shoulders. “I’m not too big on dresses, either,” she jokes, her thick shoulders moving up and down stiffly. “Thinking about it, I never have been.” She got this gig almost two years ago, after graduating with a bachelor’s degree from an Ivy League school. She is earning a healthy living and stashing some money away for the future—for the family she hopes to have one of these tomorrows. Today, though, she is still puzzling over her lust for women. 95 “I remember feeling attractions to women very early—10 years old—and not knowing what it was. I just knew it was there, but I didn’t spend too much time thinking about it because I knew it wasn’t normal.” As a youngster, Sarah preferred hanging out with the girls on her school softball team instead of going to the Episcopalian church her family attended in Pembroke Pines. “It wasn’t one in particular I was attracted to. It was all of them,” she says, laughing. “I liked the fact that they were thin. They had these amazing athletic bodies….” In 1999 Sarah’s sister Chrissie returned from military service in Guam. “She’s older than me by 10 years, and she would always be the one drinking, taking drugs, having sex, sneaking out at night,” Sarah recalls. “I was the quiet one; she was the fun one. When she came home that year, she said, ‘Let’s find a Bible study!’ I was floored.” Big sis took Sarah to Calvary Chapel in Fort Lauderdale. “I began to realize that someone [God] really loved me. Things just began to make sense,” says Sarah. “How do you describe the role your best friend plays in your life?” She went to college in upstate New York and fell out of favor with God when she fell in love with a woman. “We met at an ice-cream social or something. We were both 17, in our freshman year. She was attractive, into sports and running like me. We got to know each other, and for the whole year we were hanging out 24/7. We would sleep together in the same bed; I would be all wrapped around her. We would stay like that all night. We never actually had sex, though. I tried, but she said she wasn’t gay.” Sarah kept her feelings secret and pretended to like boys, even going on a few dates. But inside she was growing increasingly frustrated. Shortly after parting ways with the young woman she considered to be her girlfriend, one summer afternoon in 2001, she snapped. “I started screaming at God because I felt completely and utterly alone and abandoned,” she says. “I couldn’t understand why if being gay was wrong, why He had made me this way. I felt like I’d been given a raw deal and I wasn’t equipped to handle it.” Sarah recalls a time of confusion and loneliness: “The idea is to make God love us, and you go to whatever lengths you can to please him. So I finally told Him: ‘You have got to help me.’ ” 96 God pointed her to Worthy Creations, Sarah says, and He has stuck by her ever since. “I now know I’m not a complete oddball,” she says with a chuckle, explaining her gratitude for the program. “Obviously God didn’t create me this way. I now realize that it’s because I didn’t get the love that I needed from my mom. That’s all.” The ex-gay movement bolsters Sarah’s conviction—one she did not hold when she lived a gay life—that homosexuality is not indelible. As she wanders back to the construction site on a blustery afternoon, a raven-haired girl passes by on Rollerblades and smiles. Sarah smiles back. “It’s not bad to admire attractive women, because being homosexual is like being an alcoholic,” she says, reciting almost verbatim what Joe Alicea said in a recent group session. “Even when you’re not drinking, you still have the desire to drink. But an alcoholic limits that desire to drink. I also limit my desires based on what, and who, I associate with. “I can convert, sure. But it’s not a quick fix, even if you believe in it with all your heart. And I do.” … After two hours of worship, Bible study, and confession, Joe Alicea brings the Worthy Creations meeting in Miami Shores to a close with a prayer. Palms are joined, fingers interlaced, eyes shut, heads bowed. Cheeks are stained with tears; emotionally drained bodies slump lifelessly over knees. Alicea gives thanks, asks the Lord to bestow courage, and calls on Him to bring grace and truth to a world riddled with homosexuality. After a resounding “Amen,” chairs scrape along the wooden floor and the members slowly clamber to their feet. “Don’t forget,” he adds, “it’s not too late to register for the Exodus Freedom Conference.” For the past 32 years, Exodus has united approximately 1000 people at a week-long annual conference. Its purpose: to disseminate ex-gays’ inspirational tales of conversion as well as religious leaders’ (such as the late Jerry Falwell, who appeared in 2005 and 2006) insight into homosexuality. This year’s event would be held in Irvine, California, in June. And, according to Alicea, it would be life-changing: “The testimonies alone are worth the $400.” Nodding her head, Sarah turns to the student standing beside her. “I went to one once and it was amazing,” she tells the girl. “Really powerful.” In May 2004 Sarah attended what she describes as a Worthy Creations church conference in Key West. 97 “I know, Key West is such a hotbed for gay activism,” she says, laughing. But Sarah did experience a life-changing event. She fell in love with a 30-year-old olive-skinned Italian woman who lived locally. “She was short, with dark curly hair,” Sarah recalls, “and she was funny. She used to make me laugh.” The two women dated for nearly 10 months; their relationship became sexual during the last few weeks. Sarah describes her former flame as “the love of her life.” “It was wonderful,” she says with a grin, “but it came with a high price tag, because it wasn’t God’s design.” Feeling bad because “the electrical sockets just didn’t work,” Sarah ended the relationship two years ago. She has been “clean” ever since. She regrets the affair. “I ruined what could have been a really good friendship,” Sarah laments. “There are some people that you know from the getgo you should stay away from because deep down you know you won’t be able to say no.” *In June 2013, Exodus International announced that it was closing down its operations. The organization released a statement apologizing to the lesbian, gay, bisexual and transgender community for years of undue judgment, by the organization and from the Christian Church as a whole. III.  LAW A.    Expression: Prom Cases FRICKE V. LYNCH 491 F.Supp. 381 (D.R.I. 1980) OPINION: PETTINE Most of the time, a young man’s choice of a date for prom is of no great interest to anyone other than the student, his companion, and, perhaps, a few of their classmates. But in Aaron Fricke’s case, the school authorities actively disapprove of his choice, the other students are upset, the community is abuzz, and out-of-state newspapers consider the matter newsworthy. All this fuss arises because Aaron Fricke’s intended escort is another young man. Claiming that the school’s refusal to allow him to bring a male escort violates his first and fourteenth amendment rights, Fricke seeks a[n] … injunction ordering the school officials to allow him to attend with a male escort. 98 … The senior reception at Cumberland High School is a formal dinner-dance sponsored and run by the senior class. It is held shortly before graduation but is not a part of the graduation ceremonies. All seniors except those on suspension are eligible to attend the dance; no one is required to go. All students who attend must bring an escort, although their dates need not be seniors or even Cumberland High School students. Each student is asked the name of his date at the time he buys the tickets. This year, Aaron Fricke, decided that he wanted to attend the senior reception with a male companion. Aaron considers himself a homosexual, and has never dated girls, although he does socialize with female friends. He has never taken a girl to a school dance. Until this April, he had not “come out of the closet” by publicly acknowledging his sexual orientation. Aaron asked Principal Lynch for permission to bring a male escort, which Lynch denied. A week later, Aaron asked Paul Guilbert who now lives in New York to be his escort, and Paul accepted. Aaron met again with Lynch, at which time they discussed Aaron’s commitment to homosexuality; Aaron indicated that although it was possible he might someday be bisexual, at the present he is exclusively homosexual and could not conscientiously date girls. Lynch gave Aaron written reasons for his action;2 his prime concern was the fear that a disruption would occur and Aaron or, especially, Paul would be hurt. He indicated in court that he would allow Aaron to bring a male escort if there were no threat of violence. After Aaron filed suit in this Court, an event reported by the Rhode Island and Boston papers, a student shoved and, the next day, punched Aaron. The 99 unprovoked, surprise assault necessitated five stitches under Aaron’s right eye. After this, Aaron was given a special parking space closer to the school doors and has been provided with an escort (principal or assistant principal) between classes. No further incidents have occurred. Lynch believes that there is a significant possibility that some students will attempt to injure Aaron and Paul if they attend the dance. Moreover, Lynch’s actions in school have displayed a concern for Aaron’s safety while at school. Perhaps one cannot be at all sure a totally different approach by Lynch might have kept the matter from reaching its present proportions, but I am convinced that Lynch’s actions have stemmed in significant part from a concern for disruption. Aaron contends that the school’s action violates his first amendment right of association, his first amendment right to free speech, and his fourteenth amendment right to equal protection of the laws. The starting point in my analysis of Aaron’s first amendment free speech claim must be, of course, to determine whether the action he proposes to take has a “communicative content sufficient to bring it within the ambit of the first amendment.” Gay Students Organization v. Bonner, 509 F.2d 652 (1st Cir. 1974) (hereinafter Bonner). As this Court has noted before, the “speech pure”/”speech plus” demarcation is problematic, both in logic and in practice. Reilly v. Noel, 384 F.Supp. 741 (D.R.I.1974). This normally difficult task is made somewhat easier here, however, by the precedent set in Bonner. In that case, the University of New Hampshire prohibited the Gay Students’ Organization (GSO) from holding dances and other social events. The first circuit explicitly rejected the idea that traditional first amendment rights of expression were not involved. 509 F.2d at 660. The Court found that not only did discussion and exchange of ideas take place at informal social functions, Id. at 660–61, but also that: beyond the specific communications at such events is the basic “message” GSO seeks to convey that homosexuals exist, that they feel repressed by existing laws and attitudes, that they wish to emerge from their isolation, and that public understanding of their attitudes and problems is desirable for society. Here too the proposed activity has significant expressive content. Aaron testified that he wants to go because he feels he has a right to attend and participate just like all the other students and that it would be dishonest to his own sexual identity to take a girl to the dance. He went on to acknowledge that he feels his attendance would have a certain political element and would be a statement for equal rights and human rights. Admittedly, his explanation of his “message” was 100 hesitant and not nearly as articulate as Judge Coffin’s restatement of the GSO’s message, cited above. Nevertheless, I believe Aaron’s testimony that he is sincerely although perhaps not irrevocably committed to a homosexual orientation and that attending the dance with another young man would be a political statement. While mere communicative intent may not always transform conduct into speech, United States v. O’Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968), Bonner makes clear that this exact type of conduct as a vehicle for transmitting this very message can be considered protected speech. Accordingly, the school’s action must be judged by the standards articulated in O’Brien, and applied in Bonner: (1) was the regulation within the constitutional power of the government; (2) did it further an important or substantial governmental interest; (3) was the governmental interest unrelated to the suppression of free expression; and (4) was the incidental restriction on alleged first amendment freedoms no greater than essential to the furtherance of that interest? I need not dwell on the first two O’Brien requirements: the school unquestionably has an important interest in student safety and has the power to regulate students’ conduct to ensure safety. As to the suppression of free expression, Lynch’s testimony indicated that his personal views on homosexuality did not affect his decision, and that but for the threat of violence he would let the two young men go together. Thus the government’s interest here is not in squelching a particular message because it objects to its content as such. On the other hand, the school’s interest is in suppressing certain speech activity because of the reaction its message may engender. Surely this is still suppression of free expression. It is clear that the school’s action fails to meet the last criterion set out in O’Brien, the requirement that the government employ the “least restrictive alternative” before curtailing speech. The plaintiff argues, and I agree, that the school can take appropriate security measures to control the risk of harm. Lynch testified that he did not know if adequate security could be provided, and that he would still need to sit down and make the necessary arrangements. In fact he has not made any effort to determine the need for and logistics of additional security. I find that significant measures could be taken and would in all probability critically reduce the likelihood of any disturbance. Police officers and teachers will be present at the dance, and have been quite successful in the past in controlling whatever problems arise, including unauthorized drinking. Despite the ever-present possibility of violence at sports events, adequate discipline has been maintained. I have every reason to believe that additional school or law 101 enforcement personnel could be used to “shore up security” and would be effective. It should also be noted that Lynch testified that if he considered it impossible to provide adequate security he would move to cancel the dance. The Court appreciates that controlling high school students is no easy task. It is, of course, impossible to guarantee that no harm will occur, no matter what measures are taken. But only one student so far has attempted to harm Aaron, and no evidence was introduced of other threats. The measures taken already, especially the escort system, have been highly effective in preventing any further problems at school. Appropriate security measures coupled with a firm, clearly communicated attitude by the administration that any disturbance will not be tolerated appear to be a realistic, and less restrictive, alternative to prohibiting Aaron from attending the dance with the date of his choice. The most difficult problem this controversy presents is how this setting should affect the result. Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969), makes clear that high school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” … In order for the State in the person of school officials to justify prohibition of a particular expression of opinion, it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint. Certainly where there is no finding and no showing that engaging in the forbidden conduct would “materially and substantially interfere with the requirements of appropriate discipline in the operation of the school,” the prohibition cannot be sustained. Burnside v. Byars (363 F.2d 744)…. Tinker at 508–09, 89 S.Ct. at 737–738. … Tinker did, however, indicate that there are limits on first amendment rights within the school: A student’s rights, therefore, do not embrace merely the classroom hours. When he is in the cafeteria, or on the playing field, or on the campus during the authorized hours, he may express his opinions, even on controversial subjects like the conflict in Vietnam, if he does so without “materially and substantially (interfering) with the requirements of appropriate discipline in the operation of the school” and without colliding with the rights of others. But conduct by the student, in class or out of it, which for any reason whether it stems from time, place or type of behavior materially disrupts classwork or involves substantial 102 disorder or invasion of the rights of others is, of course, not immunized by the constitutional guarantee of freedom of speech. It seems to me that here, not unlike in Tinker, the school administrators were acting on “an undifferentiated fear or apprehension of disturbance.” True, Aaron was punched and then security measures were taken, but since that incident he has not been threatened with violence nor has he been attacked. There has been no disruption at the school; classes have not been cancelled, suspended, or interrupted. In short, while the defendants have perhaps shown more of a basis for fear of harm than in Tinker, they have failed to make a “showing” that Aaron’s conduct would “materially and substantially interfere” with school discipline. See Tinker at 509, 89 S.Ct. at 737. However, even if the Court assumes that there is justifiable fear and that Aaron’s peaceful speech leads, or may lead, to a violent reaction from others, the question remains: may the school prohibit the speech, or must it protect the speaker? It is certainly clear that outside of the classroom the fear however justified of a violent reaction is not sufficient reason to restrain such speech in advance, and an actual hostile reaction is rarely an adequate basis for curtailing free speech. Thus, the question here is whether the interest in school discipline and order, recognized in Tinker, requires a different approach. After considerable thought and research, I have concluded that even a legitimate interest in school discipline does not outweigh a student’s right to peacefully express his views in an appropriate time, place, and manner.5 To rule 103 otherwise would completely subvert free speech in the schools by granting other students a “heckler’s veto,” allowing them to decide through prohibited and violent methods what speech will be heard. The first amendment does not tolerate mob rule by unruly school children. This conclusion is bolstered by the fact that any disturbance here, however great, would not interfere with the main business of school education. No classes or school work would be affected; at the very worst an optional social event, conducted by the students for their own enjoyment, would be marred. In such a context, the school does have an obligation to take reasonable measures to protect and foster free speech, not to stand helpless before unauthorized student violence. The present case is so difficult because the Court is keenly sensitive to the testimony regarding the concerns of a possible disturbance, and of physical harm to Aaron or Paul. However, I am convinced that meaningful security measures are possible, and the first amendment requires that such steps be taken to protect rather than to stifle free expression. Some may feel that Aaron’s attendance at the reception and the message he will thereby convey is trivial compared to other social debates, but to engage in this kind of a weighing in process is to make the content-based evaluation forbidden by the first amendment. As to the other concern raised by Tinker, some people might say that Aaron Fricke’s conduct would infringe the rights of the other students, and is thus unprotected by Tinker. This view is misguided, however. Aaron’s conduct is quiet and peaceful; it demands no response from others and in a crowd of some five hundred people can be easily ignored. Any disturbance that might interfere with the rights of others would be caused by those students who resort to violence, not by Aaron and his companion, who do not want a fight. Because the free speech claim is dispositive, I find it unnecessary to reach the plaintiff’s right of association argument or to deal at length with his equal protection claim.6 I find that the plaintiff has established a probability of success 104 on the merits and has shown irreparable harm; accordingly his request for a preliminary injunction is hereby granted…. B.    Harassment: Constitutional Claims NABOZNY V. PODLESNY 92 F.3d 446 (7th Cir. 1996) OPINION: ESCHBACH Jamie Nabozny was a student in the Ashland Public School District (hereinafter “the District”) in Ashland, Wisconsin throughout his middle school and high school years. During that time, Nabozny was continually harassed and physically abused by fellow students because he is homosexual. Both in middle school and high school Nabozny reported the harassment to school administrators. Nabozny asked the school officials to protect him and to punish his assailants. Despite the fact that the school administrators had a policy of investigating and punishing student-on-student battery and sexual harassment, they allegedly turned a deaf ear to Nabozny’s requests. Indeed, there is evidence to suggest that some of the administrators themselves mocked Nabozny’s predicament. Nabozny eventually filed suit against several school officials and the District pursuant to 42 U.S.C. § 1983 alleging, among other things, that the defendants: 1) violated his Fourteenth Amendment right to equal protection by discriminating against him based on his gender; 2) violated his Fourteenth Amendment right to equal protection by discriminating against him based on his sexual orientation; 3) violated his Fourteenth Amendment right to due process by exacerbating the risk that he would be harmed by fellow students; and, 4) violated his Fourteenth Amendment right to due process by encouraging an environment in which he would be harmed. The defendants filed a motion for summary judgment, which the district court granted. Nabozny appeals the district court’s decision. Because we agree with the district court only in part, we affirm in part, reverse in part, and remand. … II. From his birth in 1975, Nabozny lived in Ashland, Wisconsin. Throughout his childhood, adolescence, and teenaged years he attended schools owned and operated by the Ashland Public School District. In elementary school, Nabozny proved to be a good student and enjoyed a positive educational experience. 105 When Nabozny graduated to the Ashland Middle School in 1988, his life changed. Around the time that Nabozny entered the seventh grade, Nabozny realized that he is gay. Many of Nabozny’s fellow classmates soon realized it too. Nabozny decided not to “closet” his sexuality, and considerable harassment from his fellow students ensued. Nabozny’s classmates regularly referred to him as “faggot,” and subjected him to various forms of physical abuse, including striking and spitting on him. Nabozny spoke to the school’s guidance counselor, Ms. Peterson, about the abuse, informing Peterson that he is gay. Peterson took action, ordering the offending students to stop the harassment and placing two of them in detention. However, the students’ abusive behavior toward Nabozny stopped only briefly. Meanwhile, Peterson was replaced as guidance counselor by Mr. Nowakowski. Nabozny similarly informed Nowakowski that he is gay, and asked for protection from the student harassment. Nowakowski, in turn, referred the matter to school Principal Mary Podlesny; Podlesny was responsible for school discipline. Just before the 1988 winter holiday, Nabozny met with Nowakowski and Podlesny to discuss the harassment. During the meeting, Nabozny explained the nature of the harassment and again revealed his homosexuality. Podlesny promised to protect Nabozny, but took no action. Following the holiday season, student harassment of Nabozny worsened, especially at the hands of students Jason Welty and Roy Grande. Nabozny complained to Nowakowski, and school administrators spoke to the students. The harassment, however, only intensified. A short time later, in a science classroom, Welty grabbed Nabozny and pushed him to the floor. Welty and Grande held Nabozny down and performed a mock rape on Nabozny, exclaiming that Nabozny should enjoy it. The boys carried out the mock rape as twenty other students looked on and laughed. Nabozny escaped and fled to Podlesny’s office. Podlesny’s alleged response is somewhat astonishing; she said that “boys will be boys” and told Nabozny that if he was “going to be so openly gay,” he should “expect” such behavior from his fellow students. In the wake of Podlesny’s comments, Nabozny ran home. The next day Nabozny was forced to speak with a counselor, not because he was subjected to a mock rape in a classroom, but because he left the school without obtaining the proper permission. No action was taken against the students involved. Nabozny was forced to return to his regular schedule. Understandably, Nabozny was “petrified” to attend school; he was subjected to abuse throughout the duration of the school year. The situation hardly improved when Nabozny entered the eighth grade. Shortly after the school year began, several boys attacked Nabozny in a school 106 bathroom, hitting him and pushing his books from his hands. This time Nabozny’s parents met with Podlesny and the alleged perpetrators. The offending boys denied that the incident occurred, and no action was taken. Podlesny told both Nabozny and his parents that Nabozny should expect such incidents because he is “openly” gay. Several similar meetings between Nabozny’s parents and Podlesny followed subsequent incidents involving Nabozny. Each time perpetrators were identified to Podlesny. Each time Podlesny pledged to take action. And, each time nothing was done. Toward the end of the school year, the harassment against Nabozny intensified to the point that a district attorney purportedly advised Nabozny to take time off from school. Nabozny took one and a half weeks off from school. When he returned, the harassment resumed, driving Nabozny to attempt suicide. After a stint in a hospital, Nabozny finished his eighth grade year in a Catholic school. The Catholic school attended by Nabozny did not offer classes beyond the eighth grade. Therefore, to attend the ninth grade, Nabozny enrolled in Ashland High School. Almost immediately Nabozny’s fellow students sang an all too familiar tune. Early in the year, while Nabozny was using a urinal in the restroom, Nabozny was assaulted. Student Stephen Huntley struck Nabozny in the back of the knee, forcing him to fall into the urinal. Roy Grande then urinated on Nabozny. Nabozny immediately reported the incident to the principal’s office. Nabozny recounted the incident to the office secretary, who in turn relayed the story to Principal William Davis. Davis ordered Nabozny to go home and change clothes. Nabozny’s parents scheduled a meeting with Davis and Assistant Principal Thomas Blauert. At the meeting, the parties discussed numerous instances of harassment against Nabozny, including the restroom incident. Rather than taking action against the perpetrators, Davis and Blauert referred Nabozny to Mr. Reeder, a school guidance counselor. Reeder was supposed to change Nabozny’s schedule so as to minimize Nabozny’s exposure to the offending students. Eventually the school placed Nabozny in a special education class; Stephen Huntley and Roy Grande were special education students. Nabozny’s parents continued to insist that the school take action, repeatedly meeting with Davis and Blauert among others. Nabozny’s parents’ efforts were futile; no action was taken. In the middle of his ninth grade year, Nabozny again attempted suicide. Following another hospital stay and a period living with relatives, Nabozny ran away to Minneapolis. His parents convinced him to return to Ashland by promising that Nabozny would not have to attend Ashland High. Because Nabozny’s parents were unable to afford private schooling, however, the Department of Social Services ordered Nabozny to return to Ashland High. 107 In tenth grade, Nabozny fared no better. Nabozny’s parents moved, forcing Nabozny to rely on the school bus to take him to school. Students on the bus regularly used epithets, such as “fag” and “queer,” to refer to Nabozny. Some students even pelted Nabozny with dangerous objects such as steel nuts and bolts. When Nabozny’s parents complained to the school, school officials changed Nabozny’s assigned seat and moved him to the front of the bus. The harassment continued. Ms. Hanson, a school guidance counselor, lobbied the school’s administration to take more aggressive action to no avail. The worst was yet to come, however. One morning when Nabozny arrived early to school, he went to the library to study. The library was not yet open, so Nabozny sat down in the hallway. Minutes later he was met by a group of eight boys led by Stephen Huntley. Huntley began kicking Nabozny in the stomach, and continued to do so for five to ten minutes while the other students looked on laughing. Nabozny reported the incident to Hanson, who referred him to the school’s “police liaison” Dan Crawford. Nabozny told Crawford that he wanted to press charges, but Crawford dissuaded him. Crawford promised to speak to the offending boys instead. Meanwhile, at Crawford’s behest, Nabozny reported the incident to Blauert. Blauert, the school official supposedly in charge of disciplining, laughed and told Nabozny that Nabozny deserved such treatment because he is gay. Weeks later Nabozny collapsed from internal bleeding that resulted from Huntley’s beating. Nabozny’s parents and counselor Hanson repeatedly urged Davis and Blauert to take action to protect Nabozny. Each time aggressive action was promised. And, each time nothing was done. Finally, in his eleventh grade year, Nabozny withdrew from Ashland High School. Hanson told Nabozny and his parents that school administrators were unwilling to help him and that he should seek educational opportunities elsewhere. Nabozny left Ashland and moved to Minneapolis where he was diagnosed with Post Traumatic Stress Disorder. In addition to seeking medical help, Nabozny sought legal advice. On February 6, 1995, Nabozny filed the instant suit pursuant to 42 U.S.C. § 1983 against Mary Podlesny, William Davis, Thomas Blauert, Steven Kelly, and the District alleging, among other things, that the defendants violated his Fourteenth Amendment rights to equal protection and due process. By an agreement between the parties, Steven Kelly was dropped from the suit.4 The remaining defendants moved for summary judgment. 108 The district court ruled in favor of the defendants. The court dispensed with Nabozny’s gender equal protection claim, holding that Nabozny failed to produce evidence to establish that the defendants discriminated against him based on his gender. The court did not specify its basis for deciding Nabozny’s sexual orientation equal protection claim. It appears from the order, however, that the court intended the reasoning that it applied to Nabozny’s gender claim to apply to the sexual orientation claim as well. Regarding Nabozny’s due process claims, the court concluded that Nabozny failed to produce evidence to establish that the defendants either created or exacerbated the risk of harm to Nabozny posed by other students. The court also concluded that Nabozny could not prevail on his claim that the defendants’ policies encouraged a climate in which Nabozny suffered harm because none of Nabozny’s assailants were state actors. In the alternative, the court granted qualified immunity to all of the defendants against all of Nabozny’s claims. Nabozny now brings this timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291. … III. We will begin our analysis by considering Nabozny’s equal protection claims. Wisconsin has elected to protect the students in its schools from discrimination. Wisconsin statute section 118.13(1), regulating general school operations, provides that: No person may be denied … participation in, be denied the benefits of or be discriminated against in any curricular, extracurricular, pupil services, recreational or other program or activity because of the person’s sex, race, religion, national origin, ancestry, creed, pregnancy, marital or parental status, sexual orientation or physical, mental, emotional or learning disability. Since at least 1988, the Ashland Public School District has had a policy of prohibiting discrimination against students on the basis of gender or sexual orientation. The District’s policy and practice includes protecting students from student-on-student sexual harassment and battery. Nabozny maintains that the defendants denied him the equal protection of the law by denying him the protection extended to other students, based on his gender and sexual orientation. The Equal Protection Clause grants to all Americans “the right to be free from invidious discrimination in statutory classifications and other governmental activity.” Harris v. McRae, 448 U.S. 297, 322, 65 L.Ed.2d 784, 100 S.Ct. 2671 (1980). When a state actor turns a blind eye to the Clause’s command, aggrieved parties such as Nabozny can seek relief pursuant to 42 U.S.C. § 1983. In order to 109 establish liability under § 1983, Nabozny must show that the defendants acted with a nefarious discriminatory purpose and discriminated against him based on his membership in a definable class. A showing that the defendants were negligent will not suffice. Nabozny must show that the defendants acted either intentionally or with deliberate indifference. To escape liability, the defendants either must prove that they did not discriminate against Nabozny, or at a bare minimum, the defendants’ discriminatory conduct must satisfy one of two well established standards of review: heightened scrutiny in the case of gender discrimination, or rational basis in the case of sexual orientation. The district court found that Nabozny had proffered no evidence to support his equal protection claims. In the alternative, the court granted to the defendants qualified immunity. Considering the facts in the light most favorable to Nabozny, we respectfully disagree with the district court’s conclusions. A.    Gender and Equal Protection. … The record viewed in the light most favorable to Nabozny, combined with the defendants’ own admissions, suggests that Nabozny was treated differently from other students. The defendants stipulate that they had a commendable record of enforcing their anti-harassment policies. Yet Nabozny has presented evidence that his classmates harassed and battered him for years and that school administrators failed to enforce their anti-harassment policies, despite his repeated pleas for them to do so. If the defendants otherwise enforced their anti-harassment policies, as they contend, then Nabozny’s evidence strongly suggests that they made an exception to their normal practice in Nabozny’s case. Therefore, the question becomes whether Nabozny can show that he received different treatment because of his gender. Nabozny’s evidence regarding the defendants’ punishment of male-on-female battery and harassment is not overwhelming. Nabozny contends that a male student that struck his girlfriend was immediately expelled, that males were reprimanded for striking girls, and that when pregnant girls were called “slut” or “whore,” the school took action. Nabozny does allege, however, that when he was subjected to a mock rape Podlesny responded by saying “boys will be boys,” apparently dismissing the incident because both the perpetrators and the victim were males. We find it impossible to believe that a female lodging a similar complaint would have received the same response. The defendants do not deny that they aggressively punished male-on-female battery and harassment. The defendants argue that they investigated and punished 110 all complaints of battery and harassment, regardless of the victim’s gender. According to the defendants, contrary to the evidence presented by Nabozny, they aggressively pursued each of Nabozny’s complaints and punished the alleged perpetrators whenever possible. Like Nabozny, the defendants presented evidence to support their claim. Whether to believe the defendants or Nabozny is, of course, a question of credibility for the fact-finder. In the context of considering the defendants’ summary judgment motion, we must assume that Nabozny’s version is the credible one. If Nabozny’s evidence is considered credible, the record taken in conjunction with the defendants’ admissions demonstrates that the defendants treated male and female victims differently. … Our inquiry into Nabozny’s gender equal protection claim does not end here, because the district court granted to the defendants qualified immunity. The District itself clearly is not entitled to qualified immunity. Therefore, we need only consider whether the individual defendants are immune from suit. In Harlow v. Fitzgerald, 457 U.S. 800, 73 L.Ed.2d 396, 102 S.Ct. 2727 (1982), the Supreme Court held that “government officials performing discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Id. at 818. If the law was not “clearly established,” no liability should result because “an official could not reasonably be expected to anticipate subsequent legal developments, nor could be said to ‘know’ that the law forbade conduct not previously identified as unlawful.” Id. Thus, the critical questions in this case are whether the law “clearly establishes” the basis for Nabozny’s claim, and whether the law was so established in 1988 when Nabozny entered middle school. Sherman v. Four County Counseling Ctr., 987 F.2d 397, 401 (7th Cir. 1993). The Fourteenth Amendment provides that a State shall not “deny to any person within its jurisdiction the equal protection of the laws.” In 1971, the Supreme Court interpreted the Equal Protection Clause to prevent arbitrary gender-based discrimination. A few years later, in Weinberger v. Wiesenfeld, 420 U.S. 636, 43 L.Ed.2d 514, 95 S.Ct. 1225 (1975), the Court held that discrimination based on “gender-based generalizations” in society runs afoul of the Equal Protection Clause. Id. at 645. In Mississippi University for Women v. Hogan, 458 U.S. 718, 73 L.Ed.2d 1090, 102 S.Ct. 3331 (1982), the Court went further in requiring equal treatment regardless of gender…. It is now well settled that to survive constitutional scrutiny, gender 111 based discrimination must be substantially related to an important governmental objective. … The question is whether they are required to give male and female students equivalent levels of protection; they are, absent an important governmental objective, and the law clearly said so prior to Nabozny’s years in middle school. B.    Sexual Orientation and Equal Protection. … Our discussion of equal protection analysis thus far has revealed a well established principle: the Constitution prohibits intentional invidious discrimination between otherwise similarly situated persons based on one’s membership in a definable minority, absent at least a rational basis for the discrimination. There can be little doubt that homosexuals are an identifiable minority subjected to discrimination in our society. Given the legislation across the country both positing and prohibiting homosexual rights, that proposition was as self-evident in 1988 as it is today. In addition, the Wisconsin statute expressly prohibits discrimination on the basis of sexual orientation. Obviously that language was included because the Wisconsin legislature both recognized that homosexuals are discriminated against, and sought to prohibit such discrimination in Wisconsin schools. The defendants stipulate that they knew about the Wisconsin law, and enforced it to protect homosexuals. Therefore, it appears that the defendants concede that they knew that homosexuals are a definable minority and treated them as such. Our court has ruled that, in the context of the military, discrimination on the basis of sexual orientation is subject to rational basis review. The rational basis standard is sufficient for our purposes herein. Under rational basis review there is no constitutional violation if “there is any reasonably conceivable state of facts” that would provide a rational basis for the government’s conduct. FCC v. Beach Communications, Inc., 508 U.S. 307, 113 S.Ct. 2096, 2101, 124 L.Ed.2d 211 (1993). We are unable to garner any rational basis for permitting one student to assault another based on the victim’s sexual orientation, and the defendants do not offer us one. Like Nabozny’s gender claim, the defendants argue that they did not discriminate against Nabozny. … Therefore, although it presents a closer question than does Nabozny’s gender claim, we hold that reasonable persons in the defendants’ positions in 1988 would 112 have concluded that discrimination against Nabozny based on his sexual orientation was unconstitutional. IV. Now we turn to Nabozny’s due process arguments. We believe that in order to clarify the nature of Nabozny’s due process theories, it is necessary to specify what Nabozny does not argue. However untenable it may be to suggest that under the Fourteenth Amendment a state can force a student to attend a school when school officials know that the student will be placed at risk of bodily harm, our court has concluded that local school administrations have no affirmative substantive due process duty to protect students…. Nabozny argues that the defendants should be liable because they enhanced his risk of harm, and because their policies encouraged a climate in which he suffered harm. We will consider each theory in turn. First, Nabozny argues that by failing to punish his assailants the defendants exacerbated the risk that he would be harmed, or even encouraged the students to harm him. Nabozny relies on our opinion in Reed v. Gardner, 986 F.2d 1122 (7th Cir.), cert. denied, 510 U.S. 947, 126 L.Ed.2d 337, 114 S.Ct. 389 (1993). In Reed, we rul[ed] that state actors have a duty to care for citizens if the state actors’ conduct “creates, or substantially contributes to the creation of, a danger or renders citizens more vulnerable to a danger than they otherwise would have been.” Id. at 1126. But we noted that the plaintiffs would lose on summary judgment if the defendants could show that the arrested driver was also intoxicated: “the reason is simple: without state intervention, the same danger would exist.” Id. at 1125. We agree with Nabozny in principle that the defendants could be liable under a due process theory if Nabozny could show that the defendants created a risk of harm, or exacerbated an existing one. After a thorough review of the record, however, we must agree with the district court that Nabozny’s claim suffers from a paucity of evidence. Nabozny has presented evidence to show that the defendants failed to act, and that their failure to act was intentional. But, as we noted, Alton Community held that the defendants had no affirmative duty to act. The defendants’ failure to act left Nabozny in a position of danger, but nothing suggests that their failure to act placed him in the danger, or increased the preexisting threat of harm. Nabozny has presented “wrenching” facts, but there is insufficient evidence from which a reasonable factfinder could conclude that the defendants’ conduct increased the risk of harm to Nabozny beyond that which he would have faced had the defendants taken no action. … 113 Conclusion. We conclude that, based on the record as a whole, a reasonable fact-finder could find that the District and defendants Podlesny, Davis, and Blauert violated Nabozny’s Fourteenth Amendment right to equal protection by discriminating against him based on his gender or sexual orientation. Further, the law establishing the defendants’ liability was sufficiently clear to inform the defendants at the time that their conduct was unconstitutional. Nabozny’s equal protection claims against the District, Podlesny, Davis, and Blauert are reinstated in toto. We further conclude that Nabozny has failed to produce sufficient evidence to permit a reasonable fact-finder to find that the defendants violated Nabozny’s Fourteenth Amendment right to due process either by enhancing his risk of harm or by encouraging a climate to flourish in which he suffered harm. Our disposition of Nabozny’s due process claims renders the district court’s award of qualified immunity as to those claims moot. The decision of the district court is affirmed in part, reversed in part, and remanded. C.    Harassment: Title IX MONTGOMERY V. INDEPENDENT SCH. DIST. 109 F.Supp.2d 1081 (D. Minn. 2000) OPINION: JOHN R. TUNHEIM MEMORANDUM OPINION AND ORDER Plaintiff Jesse Montgomery brings this action against Independent School District Number 709 (the “School District”) based on its failure to prevent harassment by other students that he experienced during approximately eleven years of education in defendant’s schools. Plaintiff asserts that the other students harassed him both because of his gender and his perceived sexual orientation. Analysis … D.    Title IX claims Defendant also argues that plaintiff’s Title IX claims must be dismissed because Title IX does not protect individuals from discrimination based on sexual orientation or perceived sexual orientation. Title IX provides in relevant part that “no person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under” federally-funded educational programs or activities. 20 U.S.C. § 1681(a). 114 Thus, unlike the Fourteenth Amendment, Title IX prohibits only discrimination based on sex and does not extend to any other form of invidious discrimination. For these reasons the Court concludes that, to the extent that plaintiff asserts Title IX claims based on discrimination due to his sexual orientation or perceived sexual orientation, these claims are not actionable and must be dismissed. Plaintiff nevertheless contends that he has been a victim of harassment based upon sex or gender as well as harassment based upon his sexual orientation or perceived sexual orientation. In Davis v. Monroe County Bd. of Educ., 526 U.S. 629, 631, 143 L.Ed.2d 839, 119 S.Ct. 1661 (1999), the Supreme Court recognized that student-against-student sexual harassment may give rise to a cognizable claim under Title IX in appropriate circumstances. No federal court appears to have addressed, however, whether the kind of conduct to which plaintiff was subjected constitutes discrimination “on the basis of sex” within the meaning of Title IX. In contrast with the claims recognized as viable in Davis, this case primarily involves same-sex harassment by students who, through name-calling and other forms of verbal abuse, repeatedly indicated that they perceived plaintiff to be homosexual. Thus, plaintiff’s harassers do not appear to have been motivated by any sexual desire towards plaintiff, but rather, by hostility based upon his perceived sexual orientation. Plaintiff contends that the students engaged in the offensive conduct at issue not only because they believed him to be gay, but also because he did not meet their stereotyped expectations of masculinity. The facts alleged in plaintiff’s complaint support this characterization of the students’ misconduct. He specifically alleges that some of the students called him “Jessica,” a girl’s name, indicating a belief that he exhibited feminine characteristics. Moreover, the Court finds important the fact that plaintiff’s peers began harassing him as early as kindergarten. It is highly unlikely that at that tender age plaintiff would have developed any solidified sexual preference, or for that matter, that he even understood what it meant to be “homosexual” or “heterosexual.” The likelihood that he openly identified himself as gay or that he engaged in any homosexual conduct at that age is quite low. It is much more plausible that the students began tormenting him based on feminine personality traits that he exhibited and the perception that he did not engage in behaviors befitting a boy. Plaintiff thus appears to plead facts that would support a claim of harassment based on the perception that he did not fit his peers’ stereotypes of masculinity. Whether such harassment is actionable under federal law has been the subject of significant controversy among federal courts. Although no court has addressed this issue in the context of a Title IX claim, several courts have considered whether 115 same-sex harassment targeting the claimant’s failure to meet expected gender stereotypes is actionable under Title VII. The Court looks to these precedents in analyzing plaintiff’s Title IX claim, noting that Title VII similarly requires that the discrimination resulting in the plaintiff’s claims be based on his or her sex. Moreover, the Supreme Court relied upon Title VII precedents in first recognizing a private cause of action for sexual harassment under Title IX. In Davis, 526 U.S. at 643, the Supreme Court clearly distinguished Title IX from Title VII in connection with the use of agency principles and the requisites for institutional liability under each statute. Nevertheless, the same opinion cited Title VII precedents in connection with the issue of what constitutes gender-oriented harassment. Furthermore, no logical rationale appears to exist for distinguishing Title VII and Title IX in connection with the issue raised here regarding the circumstances under which abusive or offensive conduct amounts to harassment “based on sex.” The Court accordingly applies Title VII precedents in analyzing plaintiff’s Title IX claim. … The Court’s determination on this issue is buttressed by the Eighth Circuit’s decision in Schmedding, 187 F.3d at 865. The misconduct alleged in Schmedding is strikingly similar to that plead in this case. In that case the claimant alleged that his co-workers taunted him about being a homosexual and spread rumors about his perceived sexual orientation, as well as subjecting him to other offensive harassment such as patting him on the buttocks, asking him to perform sexual acts, and forcing him to observe offensive exhibitions of sexually inappropriate behavior. See id. Although these acts are indicative of harassment based upon sexual orientation or perceived sexual orientation, the court held them sufficient to support a Title VII claim. In this case, plaintiff alleges that his harassers called him names targeted at homosexuals and spread rumors about his sexual orientation, as well as subjecting him to more severe forms of misconduct such as asking him for sexual favors, grabbing his buttocks and inner thighs, and subjecting him to acts of pretended anal rape. The Court finds these alleged acts to be at least as indicative of harassment based on sex as those asserted in Schmedding. The Court accordingly denies defendant’s motion for judgment on the pleadings against plaintiff’s Title IX claim. II.    The Parties’ Motions for Summary Judgment … 116 E.    Title IX Claim … In challenging plaintiff’s Title IX claim, defendant also contends that under the Supreme Court’s decision in Gebser v. Lago Vista Ind. Sch. Dist., 524 U.S. 274, 141 L.Ed.2d 277, 118 S.Ct. 1989 (1998), plaintiff failed to notify the appropriate authorities about the alleged harassment. Gebser involved a claim of sexual misconduct against a student by a teacher. In that case, the Court held that the school district did not have actual notice of the misconduct when the only official who knew about it was the offending teacher himself. The Court further held that in order to state a claim for damages under Title IX, a student must be able to prove that an official with sufficient authority to address the alleged harassment and to take corrective measures on the student’s behalf has actual knowledge of it. Defendant argues that under these holdings, a Title IX claimant may never prevail unless a principal or higher official has actual knowledge of the alleged discrimination. Defendant contends that knowledge by a teacher is therefore insufficient. This argument fails for two reasons. First, plaintiff plainly alleges that he did inform the principals in his schools about the student misconduct, and furthermore, that on at least one occasion he informed the office of the School District’s superintendent. Moreover, defendant stretches the Supreme Court’s holdings in Gebser beyond recognition in arguing that actual knowledge by a teacher is always insufficient. In this case, unlike Gebser, the alleged harassers were students and not teachers. Because teachers ordinarily maintain at least some level of disciplinary control over their students, it is reasonable to infer that they had authority to take disciplinary action and to institute other corrective measures to end the harassment. Indeed, the School District’s sexual harassment policy imposes upon teachers a duty to convey reports of sexual harassment to the school principals. It is therefore clear that teachers had the authority to take at least this minimal corrective measure which, if effectively carried out, would impart knowledge of the harassment to higher School District officials with even greater authority to act. For all of these reasons, the Court denies defendant’s summary judgment motion against plaintiff’s Title IX claim. Nevertheless, because there are genuine factual issues remaining, the Court also denies plaintiff’s cross-motion for summary judgment on this claim…. 117 D.    Gay/Straight Alliances Gay/Straight Alliances, especially in high schools (and increasingly middle schools), have become important vehicles by which gay students seek support among their peers and raise awareness of the issues they face. The groups are sometimes bitterly opposed by school boards, parents, and administrators. The following case illustrates some of the difficulties students face in organizing such groups at schools as well as how the law responds. COLIN V. ORANGE UNIFIED SCH. DIST. 83 F.Supp.2d 1135 (C.D. Cal. 2000) OPINION: DAVID O. CARTER GRANTING PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION Plaintiffs are students who wish to form a “Gay-Straight Alliance Club” at their high school. They claim that Defendants, the Orange Unified School District and its Board of Education and administrators, have violated their rights under the Equal Access Act and their First Amendment rights of expression and association when they voted to deny Plaintiffs’ application to form the club. At issue is whether Plaintiffs are likely to prevail on these claims and whether an injunction should issue prohibiting Defendants, while this action is pending, from continuing to deny Plaintiffs the same access to El Modena facilities that is accorded to other student groups. … A.    The Equal Access Act Plaintiffs are suing under a federal law, the Equal Access Act. An understanding of how the law came into being is helpful in order to understand its operation and whether or nor it has been violated. The Equal Access Act was passed to fit within the Constitutional limits that the Court has placed on school control over student speech. Some discussion of the First Amendment is therefore necessary to explain the somewhat surprising notion of federal courts requiring local school officials to recognize a student group that they did not choose to recognize. In general, “the education of the Nation’s youth is primarily the responsibility of parents, teachers, and state and local school officials, and not of federal judges.” The “daily operation of school systems” is traditionally reserved to the States and their local school boards…. Federal courts do intervene, however, when decisions of local school boards run afoul of the Constitution…. 118 Public school students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 511, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). Students do not, however, have all the First Amendment rights of adults in other settings because their rights must be “applied in light, of the special characteristics of the school environment.” In Tinker, students were suspended until they removed their armbands protesting the Vietnam War. The Court found that school censorship of student expression was unconstitutional unless the speech “materially disrupts classwork or involves substantial disorder or invasion of the rights of others.” The “material disruption” standard is very similar to the one adopted by Congress in the Equal Access Act. Though school officials in Tinker may have disapproved of the war protesters’ beliefs, official suppression of student speech in high schools could not be justified by the “mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.” The reason for the First Amendment’s ban on official censorship is because in a free society we rely on the “marketplace of ideas.” Though the state education system has the awesome responsibility of inculcating moral and political values, that does not permit educators to act as “thought police” inhibiting all discussion that is not approved by, and in accord with the official position of, the state. The danger is that public education could transform schools into “enclaves of totalitarianism” and convert students into “closed-circuit recipients of only that which the State chooses to communicate.” Tinker, 393 U.S. at 511. Though it may educate many of Orange’s students, the Orange Unified School District must not become an Orwellian “guardianship of the public mind,” Thomas v. Collins, 323 U.S. 516, 545, 65 S.Ct. 315, 89 L.Ed. 430 (1945) (Jackson, J., concurring), that can “strangle the free mind at its source.” Barnette, 319 U.S. at 637. The only way to maintain the “independence and vigor of Americans who grow up here” is through tolerating speech that school authorities may vehemently disagree with. Tinker, 393 U.S. at 509. “Our history says that it is this sort of hazardous freedom—this kind of openness—that is the basis of our national strength.” Id. at 508–509. The democratic response to speech that people disagree with is more speech: by allowing students to express both the popular and unpopular viewpoints society can foster “enlightened opinion.” Cantwell v. Connecticut, 310 U.S. 296, 310, 60 S.Ct. 900, 84 L.Ed. 1213 (1940). “Secondary school students are mature enough and are likely to understand that a school does not endorse or support student speech that it merely permits on a 119 nondiscriminatory basis.” Board of Education of the Westside Community Schools v. Mergens, 496 U.S. 226, 250, 110 S.Ct. 2356, 110 L.Ed.2d 191 (1990). The Supreme Court found in 1981 that when state universities make their facilities generally available for use by registered student groups, they could not single out religious groups and prevent them from meeting. See Widmar v. Vincent, 454 U.S. 263, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981). Though the presence of religious groups raised concerns about possibly violating the separation of church and state, the Court found that the religious speech and association rights of a Christian group at the University of Missouri at Kansas City were protected by the First Amendment. The only reason that the idea of religious groups using public facilities did not violate the Establishment Clause of the First Amendment (which provides that “Congress shall make no law respecting an establishment of religion”) was because under an “equal access” policy, a school is not endorsing any particular viewpoint, either for or against religion in general or for or against any particular religion. See id. at 270–76. The Court did not decide in that case if high schools with an “equal access” policy, as well as universities, were prevented from excluding certain student groups on the basis of the content of their speech. See id. at 274 n.14. In the 1984 Equal Access Act, Congress extended the rule in Widmar to public high schools. Under the Act, schools that allow student groups whose purpose is not directly related to the curriculum to meet on school grounds during lunch or after school cannot deny other student groups access to the school due to the content of the students’ proposed discussions. In the words of the Act: It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings. The Act was intended to counteract perceived discrimination against religious speech in public schools and overturn two appellate court decisions that had held that allowing student religious groups to meet on campus before and after classes would violate the Establishment Clause. See Mergens, 496 U.S. at 239, 110 S.Ct. 2356. The Act was “passed by wide, bipartisan majorities in both the House and the Senate.” Id. at 239, 110 S.Ct. 2356. As in the Widmar case, allowing religious groups on campus was constitutional only because an “equal access” policy does not endorse any particular viewpoint, does not give direct benefits to 120 religion to such a degree that it tends to establish a state religion, or coerce students to participate in a religious activity. See id. at 247–253, 110 S.Ct. 2356 (plurality holding regarding endorsement) (O’Connor, J.); id. at 258–62, 110 S.Ct. 2356 (concurring opinion regarding establishing a state religion or coercing students) (Kennedy, J.). The constitutionality of the law therefore hinged on its openness and neutrality: if a school that accepts federal funds allows some “noncurricular” student groups, it can not deny others “on the basis of the religious, political, philosophical, or other content of the speech” at the student meetings. 20 U.S.C. § 4071(a). When Congress passed the Equal Access Act, it “made a matter once left to the discretion of local school officials the subject of comprehensive regulation by federal law.” Mergens, 496 U.S. at 259 (Kennedy, J., concurring). As Justice Kennedy pointed out, “one of the consequences of the statute, as we now interpret it, is that clubs of a most controversial character might have access to the student life of high schools that in the past have given official recognition only to clubs of a more conventional kind.” Id. It’s true that when courts enforce the Act, they remove control from local school boards; “(t)his decision, however, was for Congress to make, subject to constitutional limitations.” Id. Due to the First Amendment, Congress passed an “Equal Access Act” when it wanted to permit religious speech on school campuses. It did not pass a “Religious Speech Access Act” or an “Access for All Students Except Gay Students Act” because to do so would be unconstitutional. … 1.    The Board has Established a “Limited Open Forum” at El Modena High A school has a “limited open forum” whenever it “grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time.” 20 U.S.C. § 4071(b). “Even if a school allows only one ‘noncurriculum related student group’ to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time.” Mergens, 496 U.S. at 236. Many schools encourage the growth of a “limited open forum,” recognizing that clubs “participate in the intellectual give and take of campus debate …” Healy v. James, 408 U.S. 169, 181, 92 S.Ct. 2338, 2346, 33 L.Ed.2d 266 (1972). Indeed, the El Modena Board “believes that curriculum-and noncurriculum-related student organizations have an important place in students’ lives … [and] enhance school spirit and students’ sense of belonging.” BP 6145.5(a). Recognizing the 121 value of student groups on a high school campus, the Orange Unified Board has provided for a “limited open forum” in both, word and deed. The Board’s written policy states that it has a “limited open forum in accordance with provisions of the federal Equal Access Act” because the district allows student groups “not directly tied to the curriculum.” BP 6145(a). The Board’s policies track the language of the Equal Access Act. See BP 6145(a), (b). Whether or not a school has a “limited open forum” is determined by looking at “a school’s actual practice rather than its stated policy.” Mergens, 496 U.S. at 246. Like its policy, El Modena’s actual practice is that of a “limited open forum,” as it recognizes many noncurriculum clubs including the Asian Club, Black Student Union, Chess Club, Christian Club, Earth Club, Eighties Club, Girls’ League, Koinonia (for Catholic students), Juggling Club, Mountain Bike Club, Red Cross/Key Club, and Ski Club. See Colin Decl., Ex. D. El Modena has created a “limited open forum” and is therefore precluded from discriminating against student groups seeking access to that open forum. 2.    The Gay-Straight Alliance is a “Noncurriculum Related Student Group” Defendants contend that the Gay-Straight Alliance is not protected by the Act because it is related to the curriculum. Specifically, Board Member Kathy Ward stated in her motion that “the District has a curriculum on sex education, which deals with human sexuality, sexual behavior and consequences, and prevention of sexually transmitted diseases. To the extent that the proposed GSA club intends to discuss these issues related to sexual orientation, the club is a ‘curriculum related’ club, not covered by the Equal Access Act.” The District contends that these subjects are taught in the following classes: Health (which is required for all ninth grade students); Biology and Life Sciences (students are required to take one of the two to graduate); and Family Planning (which is an elective). The District has specific guidelines for instruction on family life, sex education, and AIDS prevention. The topics covered in the Sex Education curriculum include “physiology of the reproductive system; conception through birth; prevention of pregnancy and sexually transmitted diseases; the benefits of abstinence, including it being the only totally effective prevention method; issues related to dating, marriage and parenting; and sexual assault and prevention.” AR 6142.1. According to Colin, Zetin, and the Mission Statement of the Gay-Straight Alliance, however, they do not intend to discuss topics that are covered under the sex education curriculum. According to the Mission Statement, their goal was to talk about “tolerance,” “issues related to sexual orientation and homophobia,” the need to “treat everyone with respect,” and counterattacking “unfair treatment and 122 prejudice.” The Mission Statement emphasizes, in a one-sentence paragraph at the end, that “this is not a sexual issue, it is about gaining support and promoting tolerance and respect for all students.” Id. Both Colin and Zetin state in their declarations that the club did not propose to talk about the things that were covered in sex education. Furthermore, none of the classes at El Modena covered discrimination and harassment based on sexual orientation. Zetin testified that “the word homosexual is never even mentioned in our classes.” Colin testified that the club was about “acceptance” for gay and straight people, and about helping people deal with being called “fag” or “dyke.” Both Colin and Zetin laughed on the stand at the thought of the group discussing the “physiology of the reproductive system” and the other issues covered in Health class. What the students did want to talk about is best expressed in their own words. Echoing the Mission Statement, Zetin testified “I want us to talk about the experiences that gay, lesbian and bisexual kids go through in their everyday lives such as harassment, coming out of the closet or telling people that they are gay: the fear and the emotions such as self-hatred or denial that a lot of kids go through and the harassment they get and how to deal with that.” In order to establish that issues regarding homophobia were discussed in the curriculum, the Defendants introduced into evidence a Teacher’s Edition of a Human Sexuality textbook. Principal Murray testified that part of the book was used by some teachers in the required Health class. Under cross-examination, however, Murray admitted that she was not sure if the section on homophobia in that book was given to students. She also did not think that other sections in the book had ever been given to students. Plaintiffs’ counsel pointed out the ridiculousness of the notion that everything in the book was taught in Health class, as the book included sections on “sadism,” “sado-masochism,” “fetishism,” “transvestitism,” “obscene phone calls,” “exhibitionism,” and “pedophilia.” These subjects would hardly be offered as a normal part of any secondary school curriculum. Plaintiffs amply demonstrated that the fact that El Modena had the Teacher’s Edition of this book on a shelf in its media center did not mean that the subjects were necessarily taught in class. After reviewing the evidence submitted during the briefing and listening to testimony at the preliminary injunction hearing, the Court finds as a matter of fact that the subject matter of the proposed Gay-Straight Alliance was not covered in the curriculum at El Modena High School. Even if there were some overlap between what the students wanted to talk about and a subject covered in the curriculum at El Modena, a greater nexus is required or else the club is still considered “noncurriculum related” under the 123 Equal Access Act. Congress did not define the phrase “noncurriculum related” in the Act. It did define the “meetings” that must be accommodated under the Act as activities of student groups that are “not directly related to the school curriculum.” 20 U.S.C. § 4072(3). This “implies that student groups directly related to the subject matter of courses offered by the school do not fall within the ‘noncurriculum related’ category.” Mergens, 496 U.S. at 237. The Supreme Court found that this made sense in light of the Act’s purpose: “Because the purpose of granting equal access is to prohibit discrimination between religious or political clubs on the one hand and other noncurriculum-related student groups on the other, the Act is premised on the notion that a religious or political club is itself likely to be a noncurriculum-related student group.” Id. at 238. A curriculum-related student group is “one that has more than just a tangential or attenuated relationship to courses offered by the school” and “must at least have a more direct relationship to the curriculum than a religious or political club would have.” Id. Thus, if a Christian Club prays for abstinence, it is still “noncurriculum related” even though abstinence is a topic covered in the curriculum. Indeed, Zetin testified that she believed in abstinence. Just as with the Christian Club, if discussion of abstinence were to arise at one of the meetings of the Gay-Straight Alliance, the club would still be “noncurriculum related.” The Supreme Court found that the term “is best interpreted broadly to mean any student group that does not directly relate to the body of courses offered by the school.” Mergens, 496 U.S. at 239. The Court defined four ways in which a student group “directly relates to a school’s curriculum:” [1.] if the subject matter of the group is actually taught, or will soon be taught, in a regularly offered course; [2.] if the subject matter of the group concerns the body of courses as a whole; [3.] if participation in the group is required for a particular course; or [4.] if participation in the group results in academic credit. Id. at 239–40. According to the Court, “this limited definition” was “consistent with Congress’ intent to provide a low threshold for triggering the Act’s requirements.” Id. at 240. As stated earlier, the Court finds as a matter of fact that there is no overlap between the curriculum and the GSA’s proposed discussions. It takes a significant leap of the imagination to believe that the same board that voted unanimously against permitting this group on campus has also included the subject matter of what Plaintiffs intend to discuss in the curriculum. But even if there were some small nexus between what is taught in some classes and what the group proposes to discuss, it would require considerably more for the Gay-Straight Alliance to be considered curriculum related under Mergens. The subject 124 matter of the group, dealing with their personal experiences of homophobia and seeking to improve relations among and between gay and straight students, is not “actually taught … in a regularly offered course” at El Modena. Id. at 239. … 4.    The Gay-Straight Alliance has been Denied Access to the “Limited Open Forum” and the Accompanying Benefits of Being a School-Recognized Club Because the Board has created a “limited open forum,” it must give Plaintiffs all the same rights and privileges that it gives to other student groups. Once recognized, student groups are permitted to meet on campus during noninstructional time, publicize the group at “Club Rush,” post flyers, make announcements over the public address system, and have a group picture in the yearbook. Defendants argue that Plaintiffs’ First Amendment rights have not been harmed or abridged because they can still meet informally. Defendants claim that being denied official recognition by the school and the privileges that flow from recognition does not constitute First Amendment harm. Instead, Defendants contend no “limited open forum” has been created with respect to the benefits of recognized club status because the Defendants control the “time, place, manner, and content of expressive activities using these privileges, to the extent allowed by the Equal Access Act and all other applicable laws.” This is exactly the type of content-based restriction that is forbidden by the Equal Access Act. To the extent that the Board opens up its school facilities to any noncurriculum related group, it must uniformly open its facilities to all student groups. The Board also argues that the application has only been conditionally denied. According to the statement of Kathy Ward at the Board Meeting voting down the club’s application, the student group could be approved if (1) they agreed not to discuss sex education topics covered under the California Education Code; and (2) their club was renamed with a different title that was less “divisive” and less likely to be perceived as “derogatory” or affiliated with an outside adult organization. As detailed above, the Board’s objections in regard to the outside adult organization are not factually justified or valid under the Act. The Board’s allegedly “modest” proposal to require the group to change its name is also not permissible. A group’s speech and association rights are implicated in the name that it chooses for itself. The Board is not allowed to require the student group to change its name merely because the Board finds that it would be less “divisive.” The Board’s suggested alternatives include the “Tolerance Club” and “Tolerance for All.” Zetin and Colin testified that these name changes would attack the very core 125 reason for having the club. Colin said that if he had to change the name, he “would feel my constitutional rights are useless.” With the revised name change, Colin felt the emphasis of the club would not be on counteracting homophobia, the core mission of the group. He said that the use of the word “Gay” in the title is important to announce that “being gay or homosexual is not bad, it’s who you are.” Zetin testified that the Board’s proposed revisions “take the whole purpose of the club and change it.” She said that taking the word gay out would take the focus away from the issues people face and would imply that there’s something wrong with the word “gay.” In addition, Colin does not even like the word “tolerance” because it is not as affirming as the word “alliance” or “acceptance.” To him, “tolerance” means “to put up with” in the sense that “Jews” and “Blacks” used to be “put up with” until they were finally “accepted.” Though the group’s mission statement includes the word tolerance, Colin had objected to the word’s use to McMillan when she drafted the mission statement (even though it was not ultimately changed). Because Colin does not believe in “tolerance” and instead believes in “acceptance,” the Board’s suggested name change would indicate a club that is not only more general than the one he wants, but also a club that merely promotes “tolerance,” far less than he hopes to achieve. For all of the reasons that Zetin and Colin mentioned when talking about being forced to change the club’s name, the Board’s suggested name change clearly infringes on profound expressive meaning that the group attaches to its name. Similarly, the suggestion that the group incorporate a statement that it will not talk about sexual activities, while not requiring other groups to add a similar statement, was hurtful according to Colin and Zetin. Even though they had no plans to talk about sexual activities in the group, singling their group out by requiring their mission statement to include a prohibition on discussion of sexual activities would harm their freedom of expression. Zetin said that adding the requirement when no other groups have the requirement would intimate that “gay people are inherently more sexual than others.” She testified that you can talk about being gay without talking about having sex, just as you can talk about being heterosexual without talking about sex. Plaintiffs’ counsel sensibly analogized it to requiring a Catholic group to add a statement that it would not be intolerant of other religions. Even if the Catholic group would gladly state that it did not intend to be intolerant of other religions, singling that student group out to add a statement based on a stereotype that Catholics are intolerant of other religions, and requiring the group to add a disclaimer to their mission statement, would be forced speech that could greatly harm their expressive rights. Furthermore, Colin and Zetin have stated to Defendants and under oath in court that the group does 126 not intend to talk about sexual activity, and would readily accept a statement in their mission statement that they will not talk about it if all groups are required to include the statement. … If this Court were to allow the School Board to deny recognition to the Gay-Straight Alliance, it would be guilty of the current evil of “judicial activism,” carving out an exception from the bench to the statute enacted by the politically accountable Congress. If this Court were to interpret the Equal Access Act differently than courts have in the past when applying the Act to Christian groups, it would be complicit in the discrimination against students who want to raise awareness about homophobia and discuss how to deal with harassment directed towards gay youth. The Board Members may be uncomfortable about students discussing sexual orientation and how all students need to accept each other, whether gay or straight. As in Tinker, however, when the school administration was uncomfortable with students wearing symbols of protest against the Vietnam War, Defendants can not censor the students’ speech to avoid discussions on campus that cause them discomfort or represent an unpopular viewpoint. In order to comply with the Equal Access Act, Anthony Colin, Heather Zetin, and the members of the Gay-Straight Alliance must be permitted access to the school campus in the same way that the District provides access to all clubs, including the Christian Club and the Red Cross/Key Club. Plaintiffs have shown a strong likelihood of succeeding on their claim that Defendants have violated their rights under the Equal Access Act. … E.    Plaintiffs Will Be Irreparably Injured Absent Preliminary Relief “The loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976). Even though the Court does not reach the First Amendment issue, the same presumption of irreparable harm arises in the case of violations of the Equal Access Act because it protects “expressive liberties.” Hsu v. Roslyn Union Free School Dist. No. 3, 85 F.3d 839, 872 (2nd Cir.1996). Plaintiffs have already missed an entire semester, which is a significant portion of the time that they will spend in high school. Because Zetin is a junior, she has only a year and a half left before she graduates. By the time this matter is resolved in court, Zetin may have graduated. 127 Plaintiffs have been injured not only by the Board’s excessive delay, but also by the inability to effectively address the hardships they encounter at school every day. Some students at El Modena do not even feel safe using the school’s restrooms. Zetin is often harassed by students calling her a “dyke.” While such harms may not be cured by a preliminary injunction, “gay-straight alliance clubs provide a safe place for students … [and] create a respectful environment where students realize that they have a place at the table …” Without official recognition for nearly six months, the students have not had the same privileges as other student groups and have been burdened by having to meet across the street from their school. Thus, even without the presumption of irreparable harm in the area of free speech, the urgency of this matter and the inadequacy of legal remedies mandates preliminary relief. … Granting a preliminary injunction would also be in the public interest. Recent California legislation confirms that it is state public policy to prevent discrimination on the basis of sexual orientation. In passing the California Student Safety and Violence Prevention Act of 2000, the California Legislature found that “violence is the number one cause of death for young people in California and has become a public health problem of epidemic proportion” and “the fastest growing, violent crime in California is hate crime.” 1999 Cal. A.B. 537, Stats. 1999, ch. 587 § 2. The Legislature felt that “it is incumbent upon us to ensure that all students attending public school in California are protected from potentially violent discrimination.” The California Penal Code already contained a prohibition on hate crimes based on sexual orientation. In passing ch. 587, however, the Legislature added sexual orientation to the list of prohibited forms of discrimination in public schools. In addition to protecting students from hate crimes, the Legislature was also concerned about suicide. According to the preamble: We must strive to reverse the increase in teen suicide. The number of teens who attempt suicide, as well as the number who actually kill themselves, has risen substantially in recent years. Teen suicides in the United States have doubled in number since 1960 and every year over a quarter of a million adolescents in the United States attempt suicide. Sadly, approximately 4,000 of these attempts every year are completed. Suicide is the third leading cause of death for youths 15 through 24 years of age. To combat this problem we must seriously examine these grim statistics and take immediate action to ensure all students are offered equal protection from discrimination under California law. 128 … In addition to demonstrating a strong likelihood that Defendants have violated the Equal Access Act, Plaintiffs have also shown a significant threat of irreparable injury, greater hardship to Plaintiffs than Defendants, and that the public interest favors granting the injunction. The Court finds that a preliminary injunction is warranted under these circumstances. DISCUSSION Consider the ruling in Colin. Should the Equal Access Act be extended to middle schools? See Carver Middle School Gay-Straight Alliance v. School Board, 2 F. Supp. 3d 1277 (M.D. Fla. 2014)for a case addressing this question. ____________ E.    Homophobic Speech in Schools As statistics in this chapter attest, LGBT youth face harassment at school, including homophobic speech by fellow students that marginalizes and dehumanizes them. Schools respond in different ways, but when a school does decide to punish or otherwise limit negative speech that targets LGBT students, it is often met with a legal challenge in which it is claimed that the school has infringed the First Amendment right to free speech/expression of anti-gay students. How do you think the law should respond? Consider this question as you read the following opinion. NUXOLL EX REL. NUXOLL V. INDIAN PRAIRIE SCHOOL DISTRICT 523 F.3d 668 (7th Cir. 2008) Before POSNER, KANNE, and ROVNER, CIRCUIT JUDGES. OPINION: POSNER The plaintiff, a sophomore at Neuqua Valley High School, a large public high school in Naperville, Illinois, has brought suit against the school district and school officials contending that they are violating his right to free speech by forbidding him to make negative comments at school about homosexuality. He moved for a preliminary injunction, which was denied, and he appeals the denial. The parties tacitly agree that he is entitled to a preliminary injunction if he has shown a reasonable probability that his right to free speech is being violated. The Supreme Court believes that “the loss of First Amendment freedoms, for even 129 minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed. 2d 547 (1976) (plurality opinion). The school has not tried to show that the grant of a preliminary injunction, at least if narrowly drafted, would cause irreparable harm to it. So the balance of harms inclines toward the plaintiff, and therefore the school can prevail only if his claim is demonstrably weak. A private group called the Gay, Lesbian, and Straight Education Network promotes an annual event called the “Day of Silence” that is intended to draw attention to harassment of homosexuals. The idea behind the name is that homosexuals are silenced by harassment and other discrimination. The goal of the “Day of Silence” is not to advocate homosexuality but to advocate tolerance for homosexuals. A student club at Neuqua Valley High School called the Gay/Straight Alliance sponsors the “Day of Silence” at the school. Students participate by remaining silent throughout the day except when called upon in class, though some teachers, as part of their own observance of the “Day of Silence,” will not call on students participating in the observance. Some students and faculty wear T-shirts that day with legends such as “Be Who You Are.” None of the legends advocates homosexuality or criticizes heterosexuality. Indeed, opposition to harassment of persons who happen to be homosexual is consistent with disapproval of homosexuality itself. The plaintiff is one of the students who disapprove of homosexuality. Some of them participate in a “Day of Truth” held on the first school day after the “Day of Silence.” They recommend that supporters wear a T-shirt that reads “day of truth” and “The Truth cannot be silenced.” Two years ago a coplaintiff wore a shirt that read “My Day of Silence, Straight Alliance” on the front and “Be Happy, Not Gay” on the back. A school official had the phrase “Not Gay” inked out. Last year neither plaintiff wore a shirt that contained the phrase, or otherwise tried to counter the Day of Silence, for fear of being disciplined. None of the slogans mentioned so far has been banned by the school authorities except “Be Happy, Not Gay.” The school bases the ban on a school rule forbidding “derogatory comments,” oral or written, “that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” The school deems “Be Happy, Not Gay” a derogatory comment on a particular sexual orientation. The school’s position is that members of a listed group may comment favorably about their own group but may not make a derogatory comment about another group. The rule does not apply to comments made outside of school. 130 The plaintiff challenges the rule, as well as its application in this case. He believes that the First Amendment entitles him to make, whether in school or out, any negative comments he wants about the members of a listed group, including homosexuals (a group defined of course by sexual orientation), provided they are not inflammatory words-that is, not “fighting words,” words likely to provoke a violent reaction and hence a breach of the peace. The Supreme Court has placed fighting words outside the protection of the First Amendment. Chaplinsky v. New Hampshire, 315 U.S. 568, 572–73, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Although subsequent invocations of the doctrine have failed, the plaintiff concedes its continued validity and further concedes that he could not inscribe “homosexuals go to Hell” on his T-shirt because those are fighting words and so can be prohibited despite their expressive content and arguable theological support. The concession is prudent. A heavy federal constitutional hand on the regulation of student speech by school authorities would make little sense. The contribution that kids can make to the marketplace in ideas and opinions is modest and a school’s countervailing interest in protecting its students from offensive speech by their classmates is undeniable. Granted, because 18-year-olds can now vote, high-school students should not be “raised in an intellectual bubble,” as we put it in American Amusement Machine Association v. Kendrick, 244 F.3d 572, 577 (7th Cir. 2001), which would be the effect of forbidding all discussion of public issues by such students. But Neuqua Valley High School has not tried to do that. It has prohibited only (1) derogatory comments on (2) unalterable or otherwise deeply rooted personal characteristics about which most people, including-perhaps especially including—adolescent schoolchildren, are highly sensitive. People are easily upset by comments about their race, sex, etc., including their sexual orientation, because for most people these are major components of their personal identity—none more so than a sexual orientation that deviates from the norm. Such comments can strike a person at the core of his being. There is evidence, though it is suggestive rather than conclusive, that adolescent students subjected to derogatory comments about such characteristics may find it even harder than usual to concentrate on their studies and perform up to the school’s expectations. Neuqua Valley High School is huge—4200 students—and the potential for wounding speech concerning the personal characteristics listed in the school’s rule is great. Nor, on the benefits side of the First Amendment balance, is uninhibited high-school student hallway debate over sexuality—whether carried out in the form of dueling T-shirts, dueling banners, dueling pamphlets, annotated Bibles, or soapbox oratory—an essential preparation for the exercise of the franchise. 131 A judicial policy of hands off (within reason) school regulation of student speech has much to recommend it. On the one hand, judges are incompetent to tell school authorities how to run schools in a way that will preserve an atmosphere conducive to learning; on the other hand the suppression of adolescents’ freedom to debate sexuality is not one of the nation’s pressing problems, or a problem that can be solved by aggressive federal judicial intervention. A far more urgent problem, the high dropout rates in many public schools will not be solved by First Amendment free-for-alls, though happily the drop-out rate at Neuqua Valley High School, serving as it does the wealthy city of Naperville, is negligible. It may not be obvious to an outsider how a T-shirt on which is written the slogan “Be Happy, Not Gay” will poison the school atmosphere, but the outsider is—an outsider. And of course the plaintiff doesn’t want to stop there. He wants to wear T-shirts that make more emphatically negative comments about homosexuality, provided only that the comments do not cross the line that separates nonbelligerent negative comments from fighting words, wherever that line may be. He also wants to distribute Bibles to students to provide documentary support for his views about homosexuality. We foresee a deterioration in the school’s ability to educate its students if negative comments on homosexuality by students like Nuxoll who believe that the Bible is the word of God to be interpreted literally incite negative comments on the Bible by students who believe either that there is no God or that the Bible should be interpreted figuratively. Mutual respect and forbearance enforced by the school may well be essential to the maintenance of a minimally decorous atmosphere for learning. But we cannot accept the defendants’ argument that the rule is valid because all it does is protect the “rights” of the students against whom derogatory comments are directed. Of course a school can—often it must—protect students from the invasion of their legal rights by other students. But people do not have a legal right to prevent criticism of their beliefs or for that matter their way of life. There is no indication that the negative comments that the plaintiff wants to make about homosexuals or homosexuality names or otherwise targets an individual or is defamatory. Anyway, though Beauharnais v. Illinois, 343 U.S. 250, 72 S.Ct. 725, 96 L.Ed. 919 (1952), has never been overruled, no one thinks the First Amendment would today be interpreted to allow group defamation to be prohibited. The school is on stronger ground in arguing that the rule strikes a reasonable balance between the competing interests—free speech and ordered learning—at stake in the case. But the plaintiff tells us that the Supreme Court has placed a 132 thumb on the balance—that it has held that a school unable to prove that student speech will cause “disorder or disturbance,” Tinker v. Des Moines Independent Community School District, 393 U.S. 503, 508, 89 S.Ct. 733, 21 L.Ed. 2d 731 (1969), can ban such speech only if it either is lewd, or advocates the consumption of illegal drugs. He notes that Justice Alito’s concurring opinion in Morse (joined by Justice Kennedy) disparages invocation of a school’s “educational mission” as a ground for upholding restrictions on high-school students’ freedom of speech; the opinion warns that such invocation “strikes at the very heart of the First Amendment,” though one may doubt just how close debate by high-school students on sexual preferences really is to the heart of the First Amendment. … If the schoolchildren are very young or the speech is not of a kind that the First Amendment protects, the school has a pretty free hand. But it does not follow that because those features are missing from this case the school must prove that the speech it wants to suppress will cause “disorder or disturbance,” or that it “materially disrupts classwork or involves substantial disorder” or “would materially and substantially disrupt the work and discipline of the school.” All three formulas are found in Tinker v. Des Moines Independent Community School District, supra, 393 U.S. at 513, but that was a quite different case from this. The school was discriminating against a particular point of view, namely opposition to the Vietnam war expressed by the wearing of black armbands. The parallel to Tinker in this case would be a rule that forbade negative comments just about heterosexuality or just about homosexuality. And Tinker preceded Fraser and Morse. Taking the case law as a whole we don’t think a school is required to prove that unless the speech at issue is forbidden serious consequences will in fact ensue. That could rarely be proved. It is enough for the school to present “facts which might reasonably lead school officials to forecast substantial disruption.” Boucher v. School Board of School District of Greenfield, 134 F. 3d 821, 827–28 (7th Cir. 1998). This tells us what the standard of proof is. But what is “substantial disruption”? Must it amount to “disorder or disturbance”? Must classwork be disrupted and if so how severely? We know from Morse that the Supreme Court will let a school ban speech—even speech outside the school premises—that encourages the use of illegal drugs, without the school’s having to prove a causal relation between the speech and drug use. We know too that avoiding violence, if that is what “disorder or disturbance” connotes, is not a school’s only substantial concern. Violence was not the issue in Morse, or in Fraser, the lewd-speech case. In fact one of the concerns expressed by the Supreme Court in Morse was with the psychological effects of drugs. 127 S.Ct. at 2628–29. Imagine the psychological 133 effects if the plaintiff wore a T-shirt on which was written “blacks have lower IQs than whites” or “a woman’s place is in the home.” From Morse and Fraser we infer that if there is reason to think that a particular type of student speech will lead to a decline in students’ test scores, an upsurge in truancy, or other symptoms of a sick school—symptoms therefore of substantial disruption—the school can forbid the speech. The rule challenged by the plaintiff appears to satisfy this test. It seeks to maintain a civilized school environment conducive to learning, and it does so in an even-handed way. It is not as if the school forbade only derogatory comments that refer, say, to religion, a prohibition that would signal a belief that being religious merits special protection. The list of protected characteristics in the rule appears to cover the full spectrum of highly sensitive personal-identity characteristics. And the ban on derogatory words is general. Nuxoll can’t say “homosexuals are going to Hell” (though he can advocate heterosexuality on religious grounds) and it cannot be said back to him that “homophobes are closeted homosexuals.” The school’s rule bans “derogatory comments that refer to race, ethnicity, religion, gender, sexual orientation, or disability.” We grant that a rule which forbids any class of remarks, however narrowly defined and whatever the justification, restricts free speech. But that observation is the beginning of the constitutional analysis, not the end. The number of restrictions on freedom of speech that have survived constitutional challenge is legion. This particular restriction, it is true, would not wash if it were being imposed on adults, because they can handle such remarks better than kids can and because adult debates on social issues are more valuable than debates among children. It probably would not wash if it were extended to students when they are outside of the school, where students who would be hurt by the remarks could avoid exposure to them. It would not wash if the school understood “derogatory comments” to embrace any statement that could be construed by the very sensitive as critical of one of the protected group identities. (That may, as we’ll see, be a problem with the school’s application of its rule to the facts of this case.) But high-school students are not adults, schools are not public meeting halls, children are in school to be taught by adults rather than to practice attacking each other with wounding words, and school authorities have a protective relationship and responsibility to all the students. Because of that relationship and responsibility, we are concerned that if the rule is invalidated the school will be placed on a razor’s edge, where if it bans offensive comments it is sued for violating free speech and if it fails to protect students from offensive comments by other 134 students it is sued for violating laws against harassment, as in Nabozny v. Podlesny, 92 F.3d 446, 457 (7th Cir. 1996). We are mindful that the Supreme Court said in Tinker that “if a regulation were adopted by school officials forbidding discussion of the Vietnam conflict … it would be obvious that the regulation would violate the constitutional rights of students, at least if it could not be justified by a showing that the students’ activities would materially and substantially disrupt the work and discipline of the school.” 393 U.S. at 513. But to ban all discussion of the Vietnam war would in reality have been taking sides—would have delighted the government—because the debate over the war was started, maintained, and escalated by the war’s opponents. So the plaintiff is not entitled to a preliminary injunction against the rule. And, his lawyer conceded at oral argument, neither is he entitled to a preliminary injunction against the defendants’ forbidding his making “negative comments” about homosexuality short of “fighting words.” Not only are such terms too vague to be the operative terms of an injunction, which must contain a detailed and specific statement of its terms, but the plaintiffs lawyer did not propose any language to the district judge. A litigant has a feeble claim for a preliminary injunction when he can’t articulate what he wants enjoined. The plaintiff concedes, therefore, that the most he is entitled to is an injunction that would permit him to stencil “Be Happy, Not Gay” on his T-shirt on the “Day of Truth” because forcing deletion of “Not Gay” stretches the school’s derogatory-comments rule too far. We must consider the argument carefully, because the term “derogatory comments” is unavoidably vague. The expression “Be Happy, Not Gay” is a play on words, since “gay” used to be an approximate synonym for “happy” but now has been appropriated to designate homosexual orientation. One cannot even be certain that it is a “derogatory” comment; for “not gay” is a synonym for “straight,” yet the school has told us that it would not object to a T-shirt that said “Be Happy, Be Straight.” It wouldn’t object because to advocate X is not necessarily to disparage Y. If you say “drink Pepsi” you may be showing your preference for Pepsi over Coke, but you are not necessarily deriding Coke. It would be odd to call “Be Happy, Drink Pepsi” a derogatory comment about Coke. But context is vital. Given kids’ sensitivity about their sexual orientation and their insensitivity about their preferences in soft drinks, the Pepsi-Coke analogy misses the mark. The plaintiff, like the students who participate in the “Day of Truth,” is expressing disapproval of homosexuality, as everyone knows. No one bothers to talk up heterosexuality who isn’t interested in denigrating homosexuality. The plaintiff himself describes “Be Happy, Not Gay” as one of the “negative comments” about homosexuality 135 that he considers himself constitutionally privileged to make. He is in a better position than we are to interpret the meaning of his own comment. Nevertheless, “Be Happy, Not Gay” is only tepidly negative; “derogatory” or “demeaning” seems too strong a characterization. As one would expect in a school the size of Neuqua Valley High School, there have been incidents of harassment of homosexual students. But it is highly speculative that allowing the plaintiff to wear a T-shirt that says “Be Happy, Not Gay” would have even a slight tendency to provoke such incidents, or for that matter to poison the educational atmosphere. Speculation that it might is, under the ruling precedents, and on the scanty record compiled thus far in the litigation, too thin a reed on which to hang a prohibition of the exercise of a student’s free speech. We are therefore constrained to reverse the district court’s order with directions to enter forthwith (the “Day of Truth” is scheduled for April 28) a preliminary injunction limited however to the application of the school’s rule to a T-shirt that recites “Be Happy, Not Gay.” The school has failed to justify the ban of that legend, though the fuller record that will be compiled in the further proceedings in the case may cast the issue in a different light. And further proceedings there will be. The plaintiff will not be content with the limited relief that we are ordering. This is cause litigation. He will press for a broader injunction as permanent relief, though one that will fall short of permitting him to use fighting words in his fight against homosexuality, for he has conceded that the school can ban fighting words. The district judge will be required to strike a careful balance between the limited constitutional right of a high-school student to campaign inside the school against the sexual orientation of other students and the school’s interest in maintaining an atmosphere in which students are not distracted from their studies by wrenching debates over issues of personal identity. ROVNER, CIRCUIT JUDGE, concurring in the judgment. I agree that we should reverse and remand this case to the district court with instructions to enter an injunction allowing Nuxoll to wear a shirt bearing the slogan “Be Happy, Not Gay” on the school day following the Day of Silence. I view this as a simple case. We are bound by the rule of Tinker[.] … Contrary to the majority’s characterization, Tinker is not a case about viewpoint discrimination and is not distinguishable from the instant case. Tinker involved students who wished to wear black armbands to protest the Vietnam war. School officials would not allow the armbands although they did allow students to wear other symbols of political or controversial significance, including 136 political campaign buttons and the Iron Cross, a symbol that is associated with Nazism. The Court concluded that “the prohibition of expression of one particular opinion, at least without evidence that it is necessary to avoid material and substantial interference with schoolwork or discipline, is not constitutionally permissible.” Tinker, 393 U.S. at 511. Tinker reveals nothing about whether the school allowed symbols or other expressions of opinion favorable to U.S. involvement in the Vietnam war, and so there is no reason to read Tinker as a case about viewpoint…. Moreover, I heartily disagree with my brothers about the value of the speech and speech rights of high school students, which the majority repeatedly denigrates. Youth are often the vanguard of social change. Anyone who thinks otherwise has not been paying attention to the civil rights movement, the women’s rights movement, the anti-war protests for Vietnam and Iraq, and the recent presidential primaries where the youth voice and the youth vote are having a substantial impact. And now youth are leading a broad, societal change in attitude towards homosexuals, forming alliances among lesbian, gay, bisexual, transgendered (“LGBT”) and heterosexual students to discuss issues of importance related to sexual orientation. They have initiated a dialogue in which Nuxoll wishes to participate. The young adults to whom the majority refers as “kids” and “children” are either already eligible, or a few short years away from being eligible to vote, to contract, to marry, to serve in the military, and to be tried as adults in criminal prosecutions. To treat them as children in need of protection from controversy, to blithely dismiss their views as less valuable than those of adults, supra at 10, is contrary to the values of the First Amendment. Justice Brennan eloquently stated this for the Court more than forty years ago, and his words ring especially true today: The vigilant protection of constitutional freedoms is nowhere more vital than in the community of American schools. The classroom is peculiarly the marketplace of ideas. The Nation’s future depends upon leaders trained through wide exposure to that robust exchange of ideas which discovers truth out of a multitude of tongues, rather than through any kind of authoritative selection. Tinker, 393 U.S. at 512 … The majority also treats the subject matter of sexual orientation as lacking importance, apparently failing to notice that, for the last decade or two, state and national legislatures have been awash with debates over the limits placed on the rights of LGBT persons, and that presidential candidates are often subjected to litmus tests on these very issues. Finally, there may be no more important time than adolescence for individuals to contemplate issues 137 relating to their sexual identity. These are important issues and the voices of young adults add much to the discussion. My brothers also wonder whether this slogan is actually derogatory, noting that it is a play on the words “happy” and “gay.” That it is a play on words does not change its ultimate meaning, however. Nuxoll tells us that he intends the slogan to convey the message that “homosexual behavior is contrary to the teachings of the bible, damaging to the participants and society at large, and does not lead to happiness.” Throughout his brief, he claims to be criticizing homosexual “conduct” and “behavior” although his four-word polemic “Be Happy, Not Gay” does little to convey this message and instead seems to attack homosexual identity. Nonetheless, the statement is clearly intended to derogate homosexuals. Teenagers today often use the word “gay” as a generic term of disparagement. They might say, “That sweater is so gay” as a way of insulting the look of the garment. In this way, Nuxoll’s statement is really a double-play on words because “gay” formerly meant “happy” in common usage, and now “gay,” in addition to meaning “homosexual” is also often used as a general insult. Nuxoll’s statement easily fits the school’s definition of “disparaging” and would meet that standard for most listeners…. [T]here is no doubt that the slogan is disparaging. That said, it is not the kind of speech that would materially and substantially interfere with school activities. I suspect that similar uses of the word “gay” abound in the halls of Neuqua Valley High School and virtually every other high school in the United States without causing any substantial interruption to the educational process. There is a significant difference between expressing one’s religiously-based disapproval of homosexuality and targeting LGBT students for harassment. Though probably offensive to most LGBT students, the former is not likely by itself to create a hostile environment. Certainly, this is not a case like Nabozny v. Podlesny…. DISCUSSION Compare Nuxoll ex rel. Nuxoll v. Indian Prairie Sch. Dist. No. 204 with Harper v. Poway Unified Sch. Dist., 445 F.3d 1166 (9th Cir. 2006), in which the court upheld a high school’s ban of a T-shirt which read “Homosexuality is Shameful.” Judge Reinhardt, writing for the majority, held that the shirt would “impinge upon the rights of other students,” under the Tinker test. In dissent, Judge Kozinski argued that the messages on the T-shirt were not “so offensive and demeaning that they interfere with the ability of homosexual students to partake of the educational environment,” and could not be banned consistent with Tinker. Do 138 you think Judge Posner in Nuxoll or the majority in Harper came to the better decision? (Note: Harper was vacated as moot by the U.S. Supreme Court at 549 U.S. 1262 (2007)). ____________ _______________________________ 9    LGBT is a common inclusive acronym for “lesbian, gay, bisexual, and transgender.” It is occasionally expanded to encompass “questioning” youth—those who are exploring their sexuality but who have not yet identified themselves with a common label—as “LGBTQ.” 10    Excerpted from Arthur Lipkin, Understanding Homosexuality (Westview Press, 1999). 11    This summary is from the 2013 National School Climate Survey released by GLSEN, the Gay, Lesbian and Straight Education Network. Reprinted with permission of GLSEN. 12    Excerpted from A Queer’s Own Story, Michaelangelo Signorile, Queer in America: Sex, the Media, and the Closets of Power (U. Wisconsin Press 2003), pp. 18–35. © 2003. Reprinted by permission of the University of Wisconsin Press. 13    Excerpted from, MITCHELL GOLD, CRISIS: 40 STORIES REVEALING THE PERSONAL, SOCIAL, AND RELIGIOUS PAIN AND TRAUMA OF GROWING UP GAY IN AMERICA (2008). Used with permission of Mitchell Gold and Rev. Irene Moore. 14    Excerpted from Scared Straight: The religious right’s ex-gay movement is scouting local recruits, By Joanne Green, published July 12, 2007; Reprinted with permission of the Miami New Times. 2    Principal Lynch sent the following letter to Aaron’s home and handed it to him in person: I am denying your request for the following reasons: 1. The real and present threat of physical harm to you, your male escort and to others; 2. The adverse effect among your classmates, other students, the School and the Town of Cumberland, which is certain to follow approval of such a request for overt homosexual interaction (male or female) at a class function; 3. Since the dance is being held out of state and this is a function of the students of Cumberland High School, the School Department is powerless to insure protection in Sutton, Massachusetts. That protection would be required of property as well as persons and would expose all concerned to liability for harm which might occur; 4. It is long standing school policy that no unescorted student, male or female, is permitted to attend. To enforce this rule, a student must identify his or her escort before the committee will sell the ticket. I suspect that other objections will be raised by your fellow students, the Cumberland School Department, Parents and other citizens, which will heighten the potential for harm. 5    The second reason relied upon by the Bonner court in finding the GSO social events to be speech-related was the interpretation placed upon those events by the community. There the university prohibited the gay social events because the community considered them “shocking and offensive,” “a spectacle, an abomination,” an “affront” to townspeople, “grandstanding,” inflammatory, “(undermining) the university within the state,” and distasteful. The first circuit concluded that “(w)e do not see how these statements can be interpreted to avoid the conclusion that the regulation imposed was based in large measure, if not exclusively, on the content of the GSO’s expression.” Bonner at 661. I quite agree that these statements of community outrage indicate that the content, i.e. the homosexual-ness, of the GSO’s activities led to the strong reaction and the prohibition, not the fact that they were dances. With all due respect, however, I am puzzled by how this reaction proves the expressive nature of these activities. Community outrage per se does not transform conduct into speech, or even indicate that it is speech; communities have reacted with outrage similar to that of the citizens of New Hampshire to such non-expressive activities as Hester Prynne’s adultery, the dumping of chemicals into Love Canal, and the Son of Sam murders. It is hard in Bonner to separate the community’s opposition to the GSO’s acts from its opposition to its message (if the acts had a message); surely they opposed both. Same-sex dancing may have an expressive element, but it is also action, and potentially objectionable as such. Insofar as Bonner directs me to consider community reaction in assessing expressive content, I conclude that the community disapproves of the content of Aaron’s message and that the vehemence of their opposition to his intended escort is based in part on this disapproval of what he is trying to communicate. The school here professes to be unconcerned with the content of the plaintiff’s message, but their concern with townspeople’s reaction is, indirectly, content-related. 6    This case can also be profitably analyzed under the Equal Protection Clause of the fourteenth amendment. In preventing Aaron Fricke from attending the senior reception, the school has afforded disparate treatment to a certain class of students those wishing to attend the reception with companions of the same sex. Ordinarily, a government classification need only bear a rational relationship to a legitimate public purpose; only where the classification encompasses a suspect class or burdens a fundamental right is the government held to a stricter standard of justification. Counsel have conceded that homosexuals are not a suspect class sufficient to trigger a higher standard of scrutiny. As noted above, however, there is a significant first amendment component to Aaron’s desire to attend the reception with another male. Where, as here, government classification impinges on a first amendment right, the government is held to a higher level of scrutiny. Chicago Police Department v. Mosley, 408 U.S. 92, 92 S.Ct. 2286, 33 L.Ed.2d 212 (1972); Reilly v. Noel, 384 F.Supp. 741 (D.R.I.1974). I find that Principal Lynch’s reason for prohibiting Aaron’s attendance at the reception the potential for disruption is not sufficiently compelling to justify a classification that would abridge first amendment rights. 4    Kelly was Superintendent of the Ashland Public School District at the time that the suit was filed. He was not, however, Superintendent at the time that the events at issue occurred.

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