Inside the First Amendment
By Charles C. Haynes
First Amendment Center senior scholar
What a difference a day makes.
On Jan. 31, two court decisions and one lawsuit in three states made an already hot fight over sexual orientation in public schools even hotter.
In a case out of Massachusetts, the 1st U.S. Circuit Court of Appeals upheld the dismissal of a lawsuit by parents who wanted school officials to notify them whenever same-sex families were mentioned in their children’s elementary classrooms.
According to the court, exposure to gay marriage (e.g., reading to second graders a story about two princes who fall in love) does not constitute “indoctrination” or a discussion of human sexuality as the parents claimed, but rather an age-appropriate acknowledgement of the existence of same-sex families in a state where gay marriage is legal.
On the same day, a lower court in Maryland rejected a challenge by conservative groups to a new sex-education curriculum in Montgomery County that includes lessons teaching “respect for differences in human sexuality.”
Opponents charged that the curriculum promotes homosexuality. Proponents argued that the curriculum gives students information about sexual orientation in a way that is nonjudgmental and fair.
Meanwhile in the Florida Panhandle, the culture-war shoe is on the other foot: The ACLU filed suit — again on Jan. 31 — against a high school that allegedly bans all student expression of support for gay rights, extending even to such things as rainbow stickers.
After this dizzying one-day legal whirlwind, school officials may be forgiven for being more anxious than ever about how to handle issues related to sexual orientation without calling a lawyer. One thing is clear: As public acceptance of differences in sexual and gender identity grows, pressure on schools to address these issues will continue to rise.
The Florida school’s strategy of banning any mention of sexual orientation is unrealistic and, many would argue, unfair. Gay, lesbian, bisexual and transgender students — not to mention same-sex families — are here to stay.
Some state legislators refuse to accept this new reality and push for laws that would keep students from being exposed in schools to what they see on television daily. A bill now pending in the Tennessee Legislature, for example, would prohibit any discussion of sexual orientation other than heterosexuality in middle and elementary schools.
Other state legislators are moving in the opposite direction by proposing laws to include issues surrounding sexual orientation in the curriculum and to address the widespread bullying and harassment of gay students (and students perceived as gay). Not surprisingly, gay-friendly California passed a law last year to prohibit discrimination based on sexual orientation and gender identity.
Equally unsurprising, the reaction of many conservative Christians in California has been outrage. Last week, after failing to get a referendum to repeal the legislation, a coalition of religious-conservative groups announced a major campaign to “rescue children” by leaving California’s public schools.
When religious conservatives insist on all or nothing — either ban all mention of issues concerning sexual orientation or we will abandon ship — public schools can do little to accommodate their concerns.
At the same time, when school officials insist on all or nothing — either accept how we deal with sexual orientation or you can leave – public schools lose the support of many religious parents.
There is a better way. Two years ago, the First Amendment Center joined with the Christian Educators Association International and the Gay, Lesbian and Straight Education Network to publish “Public Schools and Sexual Orientation: A First Amendment Framework for Finding Common Ground.”
This joint statement doesn’t prescribe what schools should do, but instead offers a process for dialogue that can lead to public schools that are both safe and free for all students. “A safe school is free of bullying and harassment,” according to the guide. “And a free school is safe for student speech even about issues that divide us.”
Since its publication, a number of school districts have used this guidance to develop policies that promote fairness for all and practices that are widely supported.
It’s far easier to file a lawsuit or walk out the door than to reach across the culture-war divide and find ways to work with people who see the world very differently from us. But if we care about the future of our life together as citizens of one nation, it’s worth a try.