Constitutional – Exclusion of LGBTQ essay did not violate free speech

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Where an elementary school principal omitted a fourth grader’s essay on LGBTQ equality from a student booklet because the material was not age-appropriate, she did not violate the First Amendment as her decision was reasonably related to legitimate pedagogical concerns and was not viewpoint discrimination.

Background

During the 2018-19 school year, the fourth grade class at Anderson Mill Elementary School in South Carolina was required to write an “essay to society” on any topic. The essays were to be compiled into a booklet to be placed in the fourth grade classroom so that students could read the essays throughout the remainder of the school year. Additionally, copies of the essay booklet were to be sent home with the students for their families to read.

R.R.S., an Anderson Mill Elementary School fourth grade student, wrote the essay to society on the topic of LGBTQ equality. Because Elizabeth Foster, the school’s principal, determined that the subject matter of R.R.S.’s essay was not age-appropriate, she decided the school was not going to include the essay in the fourth grade class’s essay booklet.

R.R.S.’s mother filed suit on behalf of herself and R.R.S., alleging that Foster infringed upon R.R.S.’s First Amendment right to free speech. The district court dismissed appellant’s complaint.

Foster

School officials “do not offend the First Amendment by exercising editorial control over the style and content of student speech in school-sponsored expressive activities so long as their actions are reasonably related to legitimate pedagogical concerns.” Here, the fourth grade class’s essay booklet satisfies both definitions of school-sponsored student speech. The question, then, is whether Foster’s regulation of R.R.S.’s speech was “reasonably related to legitimate pedagogical concerns.” It was, because, as appellant acknowledges in the amended complaint, Foster’s initial refusal to include R.R.S.’s essay in the fourth grade class’s essay booklet was actuated, at least in part, by her concern that the essay’s topic was “not age-appropriate” for fourth graders.

Appellant argues that “the district court provided no adequate explanation for holding that R.R.S.’s essay had no valid legitimate educational purpose.” Under Hazelwood School District v. Kuhlmeier, 484 U.S. 260 (1988), however, school officials may constitutionally restrict school-sponsored student speech—even student speech that serves a “valid legitimate educational purpose”—so long as the restriction is reasonably related to legitimate pedagogical concerns. Therefore, appellant’s argument about any purported educational purpose served by R.R.S.’s LGBTQ-themed essay is irrelevant.

Appellant also argues that Foster’s initial refusal to include the LGBTQ-themed essay in the fourth grade class’s essay booklet was impermissible “viewpoint-based discrimination.” Neither the Supreme Court nor this court has decided whether restrictions on school-sponsored student speech must be viewpoint neutral under Hazelwood, and other circuits are split on this question.

Even assuming, without deciding, that school officials’ restrictions on school-sponsored student speech must be viewpoint neutral, appellant has not plausibly alleged that Foster’s restriction on R.R.S.’s speech violated that principle. None of the justifications that appellant attributes to Foster’s initial refusal to include R.R.S.’s LGBTQ-themed essay in the fourth grade class’s essay booklet—i.e., her concern about the age-appropriateness of the essay and her fear that the essay’s subject matter would anger the families of fourth grade students—suggest that the restriction had anything to do with the content of R.R.S.’s essay. On the contrary, these justifications illustrate that Foster was averse to the subject of LGBTQ rights appearing in the essay booklet.

School district

Appellant also claims the district court erred by dismissing her constitutional claim against the school district on its own. The court disagrees.

To state a viable constitutional claim against the school district, appellant must establish that Foster infringed upon R.R.S.’s First Amendment rights. Appellant thus had every incentive to argue this point fully, as establishing a violation of R.R.S.’s constitutional rights is also required to state a viable constitutional claim against Foster in her individual capacity. As a result, advance notice of the district court’s intent to dismiss her constitutional claim against the school district would not have altered this reality.

Affirmed.

Robertson v. Anderson Mill Elementary School (Lawyers Weekly No. 001-042-21, 15 pp.) (Stephanie Thacker, J.) Case No. 19-2157. March 2, 2021. From D.S.C. (Timothy M. Cain, J.) Eric Chalmers Poston for Appellant. Jasmine Rogers Drain and Thomas Kennedy Barlow for Appellees.