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.
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.