In Parents Defending Education v. Olentangy Local School District, the Sixth Circuit upheld an Ohio school district’s policies, which prohibited intentional use of non-preferred pronouns, against a free speech challenge. This ruling will have important implications not only for districts with similar anti-harassment requirements, but also for administrators interested in the parameters of student free speech.
Background: Four parents, represented by a national group, alleged that two District policies and its code of conduct violated the First Amendment by prohibiting intentional use of non-preferred pronouns. Specifically, Plaintiff Parents asserted that their children want to express their belief that biological sex is immutable by always using biologically accurate pronouns, including in their transgender classmates’ presence. However, the District’s code of conduct and policies addressing anti-harassment and personal communication devices prohibited insulting, harassing, or disparaging comments, including those based on transgender identity. Thus, Plaintiff Parents asserted that these policies restricted and compelled speech, discriminated based on viewpoint, and were overly broad.
Parents ask the trial court for a preliminary injunction, an early order barring the District from enforcing the above policies. The trial court declined this request, and Plaintiffs appealed to the Sixth Circuit.
Legal Decision: The Sixth Circuit upheld the lower court’s decision, outlining five key points:
- First, the Court noted that repeated, intentional misgendering can be dehumanizing and humiliating to transgender students and could possibly lead to a substantial disruption of the school day. The Court further noted that school districts may reasonably restrict speech that is reasonably forecast to create a substantial disruption to the educational process without violating the First Amendment.
- Second, the Court noted that the District did not force students to use any pronouns, because the students could use first names or not refer to their transgender classmates at all. Here the Court also emphasized that the District was willing to offer accommodations for religious students and would not coerce anyone into affirming beliefs they do not hold.
- Third, the Court explained that discussing controversial topics, including gender identity – which the policies did not regulate – is different than criticizing specific classmates’ identities. Because the District did not seek to silence the view that gender is immutable, there was no viewpoint discrimination.
- Fourth, the Court noted that, with some exceptions, the District’s policies and code of conduct generally prohibited only harassment that substantially interfered with educational performance or the school’s orderly operations. Therefore, the Court held these policies were not overly broad.
- Finally, the Court noted that an immediate injunction was hardly necessary, given that these policies have been in place for over ten years with no previous challenges.
Implications for Districts: This holding does not require school districts to adopt new policies or revise existing ones to add protections for transgender students. However, it is likely that direct denigration of specific students – whether based on race, religion, sex, or gender identity – will not be considered protected speech. Additional recommendations for districts to consider include:
- Accommodations: When a student seeks to use non-preferred pronouns due to religious or other deeply-held beliefs, a discussion about accommodations and compromises may be appropriate.
- Policies: Consider checking anti-harassment policies and codes of conduct to ensure restrictions on speech focus on language that is severe, pervasive, and substantially interferes with students’ education or the school’s operations. Policies prohibiting language that is merely derogatory, discomforting, or offensive may be more susceptible to legal challenge.
- Off Campus: The extent to which discipline is appropriate for off-campus situations still hinges on the specifics of the speech and whether it creates a reasonable forecast of a substantial disruption of the district’s operations. Districts should consult with legal counsel before issuing discipline for off-campus conduct.
Situations involving competing student rights are often challenging to navigate. As the 2024-2025 school year begins, Weston Hurd’s education group remains available to help guide your district through complex circumstances.
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Weston Hurd LLP attorneys regularly provide attentive counsel in all aspects of school law. For further information about this advisory, please contact any of the education law attorneys.
