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Are 'No Promo Homo' Rules Like Anoka-Hennepin's Unconstitutional?

BY ARI EZRA WALDMAN

 A "no promo homo" rule is a local or state policy that prevents teachers or school administrators from doing pretty much anything -- lessons, school activities, informal instruction -- that could be seen as painting homosexuality in a positive light. Sometimes, these laws are justified on religious or moral grounds, with advocates being honest about their view that homosexuality is inconsistent with their religious views and they do not want their children being taught that homosexuality is okay.

Anoka Other times, these rules are written in neutral terms, banning any mention of homosexuality (positive or negative). This, of course, is not really neutral at all: denying the existence of sexual orientation, whether in history or as a contributing factor in identity-based peer-to-peer abuse, is just as harmful as banning a positive portrayal of gays. Many advocates have argued that these so-called neutral "no promo homo" policies are what First Amendment scholars call "content-based restrictions on speech" -- a prohibition on talking about a particular topic. My mother imposes a content-based restriction on political speech at the dinner table and I used to ban all lawyer shop talk at my dinners, but while my mother and I are free to do that, a half-century of Supreme Court precedent generally agrees that the state cannot.

Is that the end of the story? Are these "no promo homo" laws and so-called neutrality policies simply unconstitutional? If so, why are they so common?

The lawyers among us -- and those soon-to-be newly minted lawyers currently taking the bar exam (good luck!) -- might already have an answer, and I encourage you to offer your thoughts on the constitutionality of these laws in the comments section! But stay with me.

You might be surprised, AFTER THE JUMP...

There are three kinds of policies schools can adopt regarding the teaching of homosexuality. Schools can write gay-tolerant or pro-gay curricula, where students are taught about all views on homosexuality but are affirmatively encouraged to tolerate and accept their gay and lesbian peers. On the opposite side of the spectrum are explicit "no promo homo" policies that include anti-gay instruction. This is like a failed 1992 Oregon ballot measure that would have required public schools to "recognize[] homosexuality, pedophilia, sadism and masochism as abnormal, wrong, unnatural and perverse and ... to be discouraged and avoided." These rules can also be less egregious, like Arizona's 1995 AIDS instruction rule, which permitted instruction on HIV/AIDS, but prohibited any school from including "instruction which: Promotes a homosexual lifestyle. Portrays homosexuality as a positive alternate lifestyle. Suggests that some methods of sex are safe methods of homosexual sex." And, then there are supposedly neutral policies of the don't-ask-don't-tell variety, where a state mandates that "any reference to ... homosexuality ... be eliminated from the curriculum," or where a state bans teachers from mentioning the word gay in lessons, student interaction or in informal instruction. The Anoka-Hennepin school district in Minnesota has this kind of policy.

Anokehennepin There is reason to believe that these policies are unconstitutional under current First Amendment law even though we do not have a definitive ruling on the subject. Recently, a federal district judge in Alabama struck down a state law which forbade any college or university from using public money to "promote[] a lifestyle or actions prohibited by the sodomy or sexual misconduct laws" as a first amendment violation. Federal courts have also struck down state laws that would have allowed schools to fire teachers for advocating pro-gay policies in public (National Gay Task Force v. Board of Education of Oklahoma City). Also, in a plurality opinion in Board of Education v. Pico, Justice Brennan argued that students have a constitutional "right to know" accurate information about sexuality. That interpretation is unsettled, but Justice Burger's dissent in Pico suggests that if schools undertake sex education in the first place, they have to present it accurately. But, what is "accurate"? A number of state courts have found that it is entirely appropriate to advocate, say, abstinence as something teenagers should adopt in their daily lives, while not including any reference to homosexuality.

In any event, while the issue is unsettled, we can make a clear and persuasive case that even supposedly neutral "no promo homo" policies are unconstitutional content-based restrictions on speech. The First Amendment does not allow states to ban certain types of picketing but not others (Police Department of Chicago v. Mosley) or certain types of hate speech but not others (R.A.V. v. St. Paul). Policies that ban an entire topic of discussion are similar -- they single out one type of content for censorship.

But, when it comes to schools and sex, the story is never that clear. Many educators and policymakers have an aversion to any discussion of sex in public schools and, for better or for worse, many people feel that discussion of gay people is bound up with a discussion of their sexuality or, at least, the sexual differences between gays and straights. Bill Eskridge, a scholar of gay rights, and others have made this point before --  gay students and gay teachers in public schools not only face discrimination and abuse for being gay, but they are victimized by a public culture that believes schools should be anesthetized bastions free from sex, in general. "No promo homo" laws, then, reflect both anti-gay bias and anti-sex bias. And, even at their height, our student rights cases have acknowledged that the purpose behind public education is not only to expose students to ideas, but to protect them from bad ideas. Those "bad" ideas include drug use (Morse v. Frederick), lewdness (Fraser) and adult topics like pregnancy and sex (Kuhlmeier). Those cases limit what a student can say in school, challenging the notion from Pico that students have a right of access to all accurate information when it comes to sex.

The conversation is far from over. "No promo homo" laws should be challenged in court, but try as we might, victory is no slam dunk.

***

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues.

Follow Ari on Twitter at @ariezrawaldman.

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Comments

  1. As long as people, in the name of religious freedom, insist on clinging to a pre-historic tribal worldview, it will be hard to convince them we have any right at all to exist, much less be "tolerated." "Live and let live" doesn't seem to be an option with those folks. I see amazing progress over my long life, but it seems we have so far to go. I try not to get discouraged, but the backlashes from California and (now) New York, the anti-gay laws on the books in Tennessee and elsewhere are so very disappointing. Thanks, Mr. Waldman, for your usual clear and instructive article.

    Posted by: Abel | Jul 27, 2011 1:28:41 PM


  2. The NCLR/SPLC challenge to the "no promo homo" policy of the Anoka-Hennepin School District actually makes sex and sexual orientation discrimination arguments (on the basis of the Equal Protection Clause, federal statutory protections for sex discrimination, and Minnesota statutory protections for sexual orientation discrimination), not First Amendment ones. I think that changes the analysis somewhat.

    Posted by: Fodolodo | Jul 27, 2011 1:40:30 PM


  3. Those arguments are topics for another post. For now, I wanted to address the speech issues.

    Posted by: Ari Ezra Waldman | Jul 27, 2011 1:44:29 PM


  4. So where are the law suits on First Amendment grounds? Sure, no slam dunk. But let's find out.

    Posted by: Zlick | Jul 27, 2011 1:49:51 PM


  5. So bizarre to see my alma matter all over the news. Yep, went to Anoka, and yes, it screwed me up for a long, long time.

    Posted by: CHRIS | Jul 27, 2011 2:21:34 PM


  6. Interesting issue. Will community "standards" or community "sensibilities" be a factor in debating this 1st Ammendment issue? What may be suitable for the Philadelphia Pennsylvania School District may not be considered suitable for Philadelphia Mississippi.

    Posted by: Derrick from Philly | Jul 27, 2011 2:29:20 PM


  7. A school district that has a no bullying policy has a duty to enforce it, no matter what.

    However, in this case, another school policy requires neutrality when it comes to GLBTQ issues. Teachers in this district have been instructed (ordered) not to discuss or acknowledge GLBTQ issues, at all.

    Therefore, teachers do not discuss or acknowledge bullying of GLBTQ or GLBTQ perceived students.

    While I agree that this case is no slam dunk, the need to protect all students and precedent appears to be in our favor, IMHO

    Posted by: Fred | Jul 27, 2011 2:33:26 PM


  8. Ari, I think the issue here is not free speech but equal protection.

    A no-promo-homo rule doesn't really raise the question, "when can an individual teacher's free-speech rights be infringed?" The issue here isn't about what teachers can and can't say when they are speaking on their own behalf. When they're acting in their classroom roles, teachers are agents of the state. And so the issue would really seem to be, "what are the limits on government speech?" Right?

    And surely if a state legislature (or board of education, or whatever) can decide whether to teach sex ed or not -- or whether to teach US history or not, and so forth -- then it can also choose what parts of a sex ed curriculum and which facts from our history to teach...

    ...unless such a practice amounts to an equal protection violation. By, say, systematically denying gay and lesbian students some benefit (feelings of inclusion? pride in group history?) their peers receive, without serving any rational governmental interest.

    Posted by: Brandon | Jul 27, 2011 2:47:42 PM


  9. @brandon: i think you're right in most respects. but, that these policies implicate equal protection concerns -- where i think you're absolutely right! -- does not mean that they do not implicate free speech concerns -- where i think your first sentence, which implies exclusivity, goes off the mark. i plan on addressing the equal protection arguments in another post. but, no promo homo policies implicate free speech in a number of ways: teachers should have the freedom to identify as gay, which so-called neutrality laws that are broad enough would seem to ban (see Alabama); students have the right to access accurate sex ed content, which is not really an issue of equal protection, but rather access to speech (see Pico); a school district should be permitted to expose its students to speech that aims to foster tolerance and acceptance, something that content-based restrictions on speech in the no promo homo policies would not allow (see substance of original post).

    so, while i think we should make the equal protection arguments, as you suggest, there is no reason why those arguments have to exclude free speech arguments.

    Posted by: Ari | Jul 27, 2011 3:01:51 PM


  10. Doesn't "no promo homo" mean "no free homo"?

    Posted by: Jason | Jul 27, 2011 4:13:23 PM


  11. If people can talk about heterosexuality, I don't see why people can't talk about homosexuality. To ban one but not the other is a clear act of discrimination. Anoka High School should be sued for breaching gay students' rights to information about their sexuality.

    Posted by: jason | Jul 27, 2011 5:53:08 PM


  12. Hey Ari...thanks for the shout-out and keep those fingers crossed!

    Love,
    A complete stranger and July 2011 CA Bar Examinee

    Posted by: Alex | Jul 27, 2011 10:44:43 PM


  13. Also, isn't there an Equal Protections Clause argument to be made here? Sexual orientation classifications only receive a rational basis review, but I'll defer to your judgment on this. I certainly agree with your analysis re: the 1st Amendment, but I'd posit that we can go even further when citing constitutional law to support our side.

    Posted by: Alex | Jul 27, 2011 10:56:13 PM


  14. Annddd I see you've already addressed my point...sorry, and thanks for the post.

    Posted by: Alex | Jul 27, 2011 10:58:12 PM


  15. @Alex: good luck! im sure you did great! and, yes, youre right about the equal protection argument. look forward to another post! thanks for your comment!

    Posted by: Ari Ezra Waldman | Jul 27, 2011 11:06:13 PM


  16. Thanks for sharing .........

    Posted by: non voice projects | Jul 28, 2011 5:24:00 AM


  17. "Sometimes, these laws are justified on religious or moral grounds"

    The quote above is not true, has never been true, and never will be true, reject all religious manipulations and lies now!

    Posted by: contragenic | Jul 28, 2011 11:10:32 AM


  18. In the USA, you are guaranteed an education by Federal Law. Bullying is a distraction that you can fight through the US courts, sometimes for millions. Gay kids are 4x more likely to commit suicide. Don't be a victim, fight back, visit SueYourSchool.com for more information and even how to get a book for free if you are a student in crisis!

    Posted by: Sue Your School | Jul 28, 2011 7:51:18 PM


  19. Great post! Looking forward to more.

    Posted by: Jillian Weiss | Aug 9, 2011 7:30:37 AM


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