Constitutional Law: Parents Defending Education v. Olentangy Local School District Board of Education

Written by Teja Lebaka, Liv Moreno, and Kavon Burley

Edited by Teja Lebaka, Anna Ramesh, and Liv Moreno

What is the case?

Parents Defending Education (PDE) v. Olentangy Local School District Board of Education (2024) addresses several Olentangy policies that are related to student expression. These policies are particularly on topics of gender identity, harassment, and discrimination. PDE is a national organization focused on parental rights in education. They claimed that the Districts policies infringed on student's First Amendment rights to free speech as well as the parents 14th Amendment rights to raise their children according to their belief. Due to this claim they brought a legal challenge against the Olentangy Local School District Board of Education.

There were three policies under dispute. Those include:

1. Electronic Device Policy: This Policy states that students are not allowed to use their personal devices in any way that could be seen as harassing others. This includes any messages or online behavior that might disrupt others or make them feel uncomfortable, especially if it relates to sensitive topics like race, gender, or gender identity, even if the communication happens off-campus.

2. Anti-Harassment Policy (Policy 5517): This policy prevents students from deliberately using the wrong gender pronouns when referring to others. It describes harassment as any behavior that repeatedly bothers someone in a way that affects their ability to learn or creates a negative atmosphere in the school.

3. Code of Conduct: This prohibits the use of hurtful language aimed at people or groups because of their specific traits. It also describes bullying as any repeated and serious actions, whether words or physical behavior, that negatively affect the learning experience for other students.

The PDE argues that school policies aimed at creating a respectful environment free from bullying and harassment could pressure students to hold views about gender that clash with their religious beliefs. They specifically believe that requiring students to use the preferred pronouns of their transgender classmates forces them to speak in a way that goes against their own beliefs about gender being fixed. Additionally, PDE asserts that banning students from sharing certain opinions about gender identity, both in and out of school, is an excessive use of school authority.

In response to these claims, a District Court decided not to block these policies, stating that they are intended to maintain a smooth and respectful school environment and do not violate the students' rights to express their beliefs. PDE then took this decision to the Sixth Circuit Court, which upheld the lower court's ruling, agreeing that the school's policies are justified. They believe that schools have the right to limit speech that could disrupt the educational experience for everyone.

This ongoing case, in which the PDE is asking for a rehearing, raises important questions about student rights, freedom of speech, and how much control schools have over student behavior both inside and outside of school. The Sixth Circuit has generally supported the school district's ability to enforce policies aimed at creating an inclusive environment. However, the pending appeal highlights the tricky balance between protecting students from harassment and allowing them to express themselves freely. The results of future court proceedings could have a big impact on schools across the country, especially regarding how school policies may influence students' lives beyond the classroom. As schools continue to update their policies to handle sensitive social issues, this case is key in determining the limits of student speech in educational settings.

First Amendment Violations/Relevance to Constitutional Law

The PDE case involves a facial challenge to the policy's First Amendment violations. Facial challenges are typically challenges to a law where the plaintiff alleges the law is wholly unconstitutional in its application, thus nullifying it.("A Key Law-Reform Tool in Peril – the End of Facial Challenges? (New York Law Journal)." NYCLU, November 8, 2024. https://www.nyclu.org/commentary/column-key-law-reform-tool-peril-end-facial-challenges-new-york-law-journal.) First Amendment facial challenges are hard for the plaintiffs to win. Courts aim "to provide [] breathing room for free expression," though ruling for the challenger rests on a certain set of assumptions that the law's "unconstitutional applications substantially outweigh its constitutional ones." (Moody v. NetChoice, LLC, 603 U.S. 277 (2024)) Thus, giving rise that the Supreme Court may intervene in this matter.

The constitutional question raised in Parents Defending Education v. Olentangy rests on a school district's ability to prohibit the speech and conduct of students on- and off-campus. These constitutional violations raised in PDE have extensive litigation history from the federal judiciary including the U.S. Supreme Court. During the height of the Vietnam War, a group of students in Des Moines, Iowa held a gathering where they planned a silent protest for a truce in Vietnam. Ultimately the students wore armbands in protest and were suspended as a result. This case went to the district court where they dismissed the constitutional question altogether, [t]he U.S. Court of Appeals for the Eighth Circuit affirmed without a written decision. The Supreme Court took the case on merits and found that the school district violated the student's constitutional protections of freedom of speech, and students don't lose their First Amendment rights when they step onto school property. (Tinker v. Des Moines Independent Community School Dist, 393 U.S. 503 (1969)) School officials must prove that the conduct or speech in question would "materially and substantially interfere," in the operations and function of educational learning. (Id.) This interpretation of the First Amendment provided a legal framework for judges when deciding similar cases. Similar cases like, Barnette, Davis v. Monroe County Board of Education (1999), and Mahanoy modified and solidified the First Amendment doctrine to help guide judges.

The Code of Conduct of this policy involves several First Amendment challenges: compelled speech and "harassment" conduct. Compelled speech by local governments was ruled unconstitutional by the Supreme Court. (West Virginia v. Barnette, 319 U.S. 624 (1943)) In Barnette, the West Virginia Board of Education required public school students and teachers to salute the flag. The children in the families of Jehovah's Witnesses refused this practice, ultimately resolving this issue at the Supreme Court. Similarly, the school district in PDE requires students to use peer's preferred pronouns, rather than those that align with biological sex which fails to account for a student's sincere religious beliefs.

The final challenge by PDE hinges on- or off-campus Personal Communication Devices (PCD) policy that prohibits students from using that device, "in any way that might reasonably create in the mind of another person an impression of being threatened, humiliated, harassed, embarrassed or intimidated" other students. A similar case was brought before the Supreme Court in 2021. Mahanoy Area School District v. B.L. involved an off-campus post from a student who used non-target speech out of frustration. The Supreme Court outlined three factors courts would "distinguish schools' efforts to regulate that speech from their efforts to regulate on-campus speech."(Mahanoy Area School District v. B.L. 594 U.S. (2021)) These factors are: (1) "in relation to off-campus speech," a school "will rarely stand in loco parentis";(2) regulating student's on-campus and off-campus speech… "includes all the speech a student utters …[a] day"; and (3) because school's are "the nurseries of democracy," and "the school itself has an interest in protecting a student's unpopular expression, especially when the expression takes place off campus." The school's interest in regulating off-campus speech would become "diminished."

The PDE v. The Olentangy Local School District Board of Education case is not the first one that the Sixth Circuit Court of Appeals has ruled on concerning the clash of free speech and anti-discrimination policy regarding pronouns and gender. One similar example is Meriwether v. Hartop (2021). Both cases center on the tension between First Amendment rights and school policies regarding gender identity.

In Meriwether, a philosophy professor at Shawnee State University, Nicholas Meriwether, challenged the university's disciplinary action against him for refusing to use a transgender student's preferred pronouns, claiming this policy violated his First Amendment rights to free speech and religious expression. Similarly, in the PDE v. Olentangy Local School District Board of Education, parents are challenging school district policies that prohibit students from using non-preferred pronouns, arguing that this mandate infringes on students' free speech rights on the basis of religious expression. Both cases delve into the balance between anti-discrimination protections aimed at fostering inclusive educational environments and the rights of individuals to express personal beliefs, particularly regarding gender identity issues.

In Meriwether, the Sixth Circuit Court of Appeals ultimately ruled in favor of Professor Meriwether, finding that his First Amendment rights had indeed been infringed upon by the university's actions. This decision underscored the principle that educators in public institutions retain certain rights to free speech and religious expression, even within the confines of their professional roles. The Sixth Circuit, a federal appellate court, was the deciding body in Meriwether's case, and this same court is now considering PDE v. Olentangy Local School District Board of Education. This continuity in decision-makers is significant, as it suggests that the Sixth Circuit's prior reasoning in Meriwether may influence their approach to the PDE case, especially given the overlapping issues of free speech and gender identity policies in educational settings.

The Meriwether ruling by the Sixth Circuit may signal a favorable outcome for the plaintiffs in PDE v. Olentangy, as it established a precedent within the same court that prioritizes First Amendment protections, even when such protections conflict with institutional policies promoting inclusivity. In Meriwether, the court demonstrated a willingness to protect individual speech rights in cases involving gender identity, suggesting that it may lean similarly in cases where policies restrict students' freedom to express views, even if those views are contrary to the school's anti-discrimination goals. If the court follows its previous reasoning, it could rule that the Olentangy School District's pronoun policy unlawfully limits students' First Amendment rights, especially if the policy is viewed as compelling speech that conflicts with students' personal beliefs. However, given the differences between higher education and K-12 settings, the court might also weigh the unique need for a supportive environment for younger students. Yet, Meriwether establishes a clear precedent that the Sixth Circuit may use as a basis to scrutinize any policy that compels speech, which could shape a ruling in favor of PDE and affirm students' rights to freely express their beliefs.

LEGAL TERMS, PRECEDENTS, AND CONCEPTS:

First Amendment and Compelled Speech:

The First Amendment guarantees the right to free speech, which includes the right not to be forced to express beliefs or opinions that one disagrees with. However, in public schools, this right can be limited based on a landmark court case known as Tinker v. Des Moines. This case allows school officials to restrict speech if it is likely to cause major disruptions in the school environment.

Parents' Rights and the Fourteenth Amendment:

The Parents' Defense Council (PDE) argues that some school policies interfere with parents' rights under the Fourteenth Amendment, which gives parents control over how their children are raised and educated.

Understanding the Tinker Standard:

The Tinker standard comes from the 1969 Tinker v. Des Moines case, which decides if schools can limit student speech that might disrupt school activities or violate the rights of other students. A recent court ruling confirmed that school policies aimed at preventing harassment can be justified since they anticipate problems that certain kinds of student expression might cause.

Concerns About Overreaching Policies:

The PDE also argues that some school policies are too broad, meaning they could limit more speech than necessary. However, the Sixth Circuit court found that these policies specifically target behaviors that disrupt the school while still allowing room for students to express their beliefs. For instance, students can choose to use their classmates' first names instead of their preferred pronouns if using those pronouns goes against their personal beliefs.