IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF FLORIDA
PANAMA CITY DIVISION
HEATHER Gillman, through next
friend and mother, Ardena Gillman,
vs. CASE NO. 5:08cv34-RS-MD
SCHOOL BOARD FOR HOLMES
OPINION AND ORDER
The question presented is whether a public high school may prohibit students from wearing or displaying t-shirts, armbands, stickers, or buttons containing messages and symbols which advocate the acceptance of and fair treatment for persons who are homosexual.
Plaintiff Heather Gillman, through her mother, Ardena Gillman, has sued Defendant School Board for Holmes County, Florida, alleging that the School Board has deprived her of her right to free speech and political expression and has engaged in viewpoint-based discrimination, in violation of the First and Fourteenth Amendments to the United States Constitution. Gillman is an eleventh grade student at Ponce de Leon High School, a public school in a rural community in the Florida panhandle serving approximately four hundred students in grades six through twelve. Gillman, who identifies herself as heterosexual, contends that the School Board and the principal of Ponce De Leon, David Davis, unlawfully prohibited her and other students from wearing or displaying t-shirts, armbands, stickers, or buttons containing slogans and symbols which advocate the acceptance of and fair treatment for persons who are homosexual. Banned from the school are rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”
This case arose from events involving a homosexual student at Ponce de Leon High School on Friday, September 7, 2007. The twelfth-grade student, "Jane", reported to a teacher’s aide that she had been taunted by a group of approximately five middle school students because of her sexual orientation. The middle school students allegedly told Jane that “dykes,” such as herself, were “nasty,” “gross,” and “sick.” The teacher’s aide reported the incident to Principal David Davis.
At the end of the school day on the following Monday, September 10, 2007, Davis called Jane into his office. Davis asked Jane if she had told the teacher’s aide that she identified herself as a lesbian. Jane answered, “Yes.” Davis then asked, “Are you a lesbian?” Jane again answered, “Yes.” Davis counseled Jane that it was not “right” to be homosexual. He then questioned Jane about whether her parents (Testimony at trial revealed that Jane’s father threatened to kick Heather out of the house upon learning of his daughter’s sexual orientation)were aware of her sexual orientation. When Heather answered in the negative, Davis asked Jane for her parents’ telephone number so that he could call them and inform them of her sexual orientation. Davis also instructed Jane to “stay away” from the middle school students or that he would suspend her. Jane left Davis’s office in
Jane was not present at school the following day because her sister had surgery. However, Davis’s rebuke of Jane on the basis of her sexual orientation became known to the student body. A false rumor circulated that Jane was absent from school because Davis had suspended her for being homosexual. Numerous students expressed their support for Jane by writing “GP” or “Gay Pride” on their bodies, wearing t-shirts with messages supportive of gay rights, yelling “Gay Pride” in the hallways, circulating petitions to demonstrate support for gay rights, and creating signs with messages supporting homosexuals.
On Tuesday, September 11, 2007, a rumor circulated among the student body that Davis had invited an anti-gay preacher from a local church to speak at a mandatory assembly on Wednesday, September 12, 2007. A silent bulletin on the video monitors in each classroom stated that a “morality assembly” would be held at the end of the day on Wednesday.
During lunch, on Wednesday, September 12, 2007, a group of Jane’s friends discussed the prospect of peacefully walking out of the assembly in protest. Because the preacher did not discuss issues relating to homosexuality at the assembly, and because Davis instructed students that a walk-out would not be tolerated, no students walked out in protest, and the assembly proceeded without incident.
Following the assembly, Davis began investigating what had come to be known as the “Gay Pride” movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.
One of the students that Davis questioned was Gillman’s cousin, who identifies as homosexual. Davis questioned Gillman’s cousin about her sexual orientation. Davis stated that being gay was against the Bible and that it was not right. He expressed his hope that Gillman’s cousin would not “go down the road” of being a homosexual. Davis then instructed her not to discuss her sexual orientation with any students at the school, not to say “Gay Pride” or write it on her body or school materials, and not to wear her rainbow-colored belt. Davis warned Gillman’s cousin that if she violated his instructions, he would suspend her from school.
On Friday, September 21, 2007, and Monday, September 24, 2007, Davis suspended eleven students, including Gillman’s cousin, for five school days each as punishment for their involvement in the “Gay Pride” movement. As grounds for the suspensions, Davis explained that the students belonged to a “secret society” or “illegal organization” forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school. Davis told the mother of a student whom he had suspended that he could secretly “send her [daughter] off to a private Christian school down in Tallahassee” or to the juvenile detention center and that
“if there was a man in your house, your children were in church, you wouldn’t be
having any of these gay issues.”
On Wednesday, September 26, 2007, Gillman wore a rainbow belt and a handmade shirt with the slogan “I Support Gays” to school as an expression of support for her cousin, her acceptance of homosexuals, and her belief that homosexuals should be afforded equal and fair treatment. On Thursday and Friday of that week, Gillman wore a rainbow belt to school to express the same beliefs. Gillman’s conduct did not cause any disruption at the school or other negative reactions, and she was not reprimanded or punished.
In light of Davis’s prohibition of messages relating to the support and acceptance of homosexuals, Gillman sought clarification from the School Board about its own position on the matter. On November 2, 2007, Gillman and her cousin (who had previously been suspended by Davis), through legal counsel, sent a letter to the attorney for the School Board. The letter requested guidance on which phrases and symbols students could display at school without being disciplined. Specifically, Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”
By letter dated November 12, 2007, the School Board responded that none of the phrases, symbols, or images contained in the letter dated November 2, 2007, could be displayed by students at Ponce de Leon High School. The School Board justified its censorship on the ground that the expressions indicated membership in an “illegal organization” prohibited by School Board policy and were disruptive to the educational process. The letter cited students’ plan to walk out of the school assembly on September 12, as an example of the disruptive effect of the messages. In her complaint (Doc. 1), filed January 31, 2008, Gillman contended that she desires to display the symbols and messages contained in the letter dated November 2. She has, however, abstained from doing so based on her fear that she will be disciplined for violating the verbal and written instructions of Davis and the Holmes County School Board prohibiting students from displaying the symbols and messages.
Where Davis went wrong was when he endeavored to silence the opinions of his dissenters:
Davis testified that merely wearing a t-shirt expressing support for homosexuals or displaying a rainbow-colored sticker amounts to “imposing” a certain view on others who find that view offensive. Davis stated that such speech should not be imposed on children “[j]ust as I would not want religious ideas being imposed upon children who don’t want to hear them.” However, Davis fails to realize the hypocrisy in his own behavior. It was not the students who imposed their views about homosexuality on Davis or other students; rather, it was Davis who silenced and suspended students for expressing their views. When Davis told a mother that he could secretly “send her daughter off to a private Christian school down in Tallahassee” and that “if there was a man in your house, your children were in church, you wouldn’t be having any of these gay issues,” the mother “sat on her hands.”
Although the School Board conceded in its answers to interrogatories and at trial that the messages and symbols at issue are not vulgar, lewd, obscene, plainly offensive, or sexually suggestive, Davis attempted to justify the ban on speech, in
part, by contending that rainbow stickers and the phrases “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I’m Straight, But I Vote Pro-Gay,” and “I Support Equal Marriage Rights,” are sexually suggestive and immediately conjure images in children’s minds of people engaging in sexual acts.
Notwithstanding his obvious mis-characterization of the speech as sexual in nature, other evidence clearly suggests that the ban on speech was not motivated by Davis’s
purported concerns about the sexual connotations of the speech. For example, during September 2007, a female student complained that a male student had dared another male student to offer her five dollars to “get in her pants.” Davis testified that he agreed that the conversation between the students was “far more sexually explicit” than the banned speech. Yet, Davis conceded that he did not warn the students not to discuss “heterosexual issues” at Ponce de Leon (Tr., Doc. 76:210, lines 23-25), nor did he investigate or even speak to the male students about the female student’s complaint. Davis also stated that he would not prohibit a male student from telling a female student that she is “cute” or that he wants to “date her,” but that he would ban “I Vote Pro-Gay.” Nor were school officials concerned about students’ expressions of other political views at Ponce de Leon. While rainbows are banned at Ponce de Leon, Superintendent Griffin testified that swastikas are not. While “Equal, Not Special Rights,” and “God Loves Me Just the Way I Am” are prohibited, Davis and Superintendent Griffin stated that the Confederate flag is not. It is therefore apparent that the ban on speech at Ponce de Leon was motivated, not by school officials’ angst about political expressions at school, but by the hostility of school officials toward the particular message sought to be conveyed. The School Board, however, contends that any viewpoint-based discrimination by Davis cannot properly be imputed to it. That contention is without merit. The School Board is liable for its unconstitutional ban on speech under the theories of ratification, delegation, and deliberate indifference.
The evidence conclusively established that the School Board was acting as Davis’s alter ego in this dispute. Davis testified that he is “intricately connected” with the School Board. He stated that questioning him, “is, in essence, questioning the School Board.” The School Board was aware of the alleged constitutional violations and disregarded them. On September 25, 2007, Heather Gillman, through legal counsel, sent a letter to the School Board. The letter unambiguously informed the School Board in detail about the factual allegations constituting Gillman’s claim that Davis had been discriminating against students on the basis of their sexual orientations and their political views about homosexuality. The letter demanded, in no uncertain terms, a “full investigation of these serious allegations.” The letter also stated that “[w]e anticipate filing suit in federal court.” The School Board, through Superintendent Griffin, responded to the letter by conducting a two-sentence “investigation.” Despite Griffin’s acknowledgment at trial that the allegations in the letter were “very serious,” his complete inquiry into the matter consisted solely of asking Davis if the allegations were true. Davis responded that they were not, and the investigation was closed. Griffin did not interview one teacher, one student, or one parent. Nor did he appoint any member of his administrative staff to investigate.
Based on Griffin’s report to the School Board that Davis had denied all allegations contained in the letter, the School Board wholesale delegated its policy making authority, as such authority related to the speech at issue, to Davis and ratified his ban on speech. The School Board’s conduct was more than negligent; the Board completely abrogated its duties and responsibilities, and it disregarded a known or obvious consequence of its inaction. Bd. of County Comm’rs v. Brown, 520 U.S. 397, 410, 117 S. Ct. 1382, 1391, 137 L. Ed. 2d 626(1997). The School Board did not speak to Davis, any teacher, any other administrator, any student, or any parent. Despite its knowledge and awareness of the alleged constitutional violations, the School Board’s “inquiry” amounted to no investigation at all, rendering the School Board deliberately indifferent. See Ware v. Unified Sch. Dist. No. 492, Butler County, 902 F.2d 815 (10th Cir. 1990) (where school board members “knew about” a possible constitutional violation by the superintendent but failed to make an “independent investigation” or ask the superintendent questions about the reasons for his alleged unlawful decision, “the evidence is sufficient to create a jury question on whether the board acted with deliberate indifference to the plaintiff’s First Amendment rights).
In the end the court concluded the following:
Plaintiff has properly proven all allegations in the complaint. The defendant, School Board for Holmes County, Florida, has (1) violated Plaintiff’s right to free speech and (2) discriminated against her viewpoint, in violation of the First and Fourteenth Amendments to the United States Constitution.
1. The School Board for Holmes, County, Florida, its officers, agents, affiliates, subsidiaries, servants, employees, and all other persons or entities in active concert or privity or participation with them, are permanently enjoined from restraining, prohibiting, or suppressing the Plaintiff or any other student within the Holmes County School District from expressing their support for the respect, equal treatment, and acceptance of gays and lesbians, including, but not limited to, the phrases and symbols which appear in the letter dated November 2, 2007 (Exh. 2);
2. The School Board’s policy about “illegal organizations” and “secret
societies” is vague as applied to the Plaintiff and to the activities and speech which have been proscribed by the School Board. The enforcement of the School Board’s
policies concerning expression related to “illegal organizations” and “secret societies” as applied to the Plaintiff is permanently enjoined;
3. The School Board for Holmes County, Florida, shall take such affirmative steps as are necessary to remedy the past restraints of expression of support for the respect, equal treatment, and acceptance of homosexuals, including, but not limited
to, notifying in writing the Ponce de Leon High School student body, including the
middle school students who attend the school, as well as school officials within the
Holmes County School District, that students are permitted to express their support
for the respect, equal treatment, and acceptance of homosexuals pursuant to reasonable time, place, and manner restrictions that do not materially and substantially disrupt the missions of the schools;
4. The School Board for Holmes County, Florida, its officers, agents, affiliates, subsidiaries, servants, employees, and all other persons or entities in active concert or privity or participation with them, are permanently enjoined from taking retaliatory action against Plaintiff for bringing this lawsuit, or against any students for their participation in this lawsuit, or for their past, present, or future expressions of support for the respect, equal treatment, and acceptance of
5. This Court retains jurisdiction of this case to enforce the terms of its
Please notice when visiting Ponce de Leon High School's website that the Principal is now listed as Mr. Buddy Brown and not David Davis.
My hope in sharing this, which should be a mutual goal by all, is to eliminate instances where radical elements have a voice in public education systems that allows them the ability to silence their opposition and grossly overstep their authority as is the case in this instance. This is a very good example of why we need proper education about diversity in our public schools.