The American Civil Liberties Union and its Tennessee branch sued two Tennessee school districts in federal court May 19, claiming that the districts are unconstitutionally blocking students from accessing online information about lesbian, gay, bisexual, and transgender (LGBT) issues.

Metropolitan Nashville Public Schools, Knox County Schools, and as many as 105 other school districts in Tennessee use internet filtering software provided by Education Networks of America (ENA), which operates a statewide network connecting the state’s schools, to block web sites containing pro-LGBT speech–but not web sites touting "reparative therapy" and "ex-gay" ministries, the ACLU says.

The "LGBT" filter is not used to block web sites containing pornography, which are filtered under a different category–but it does block the sites of many well-known LGBT organizations, including Parents, Families, And Friends of Lesbians and Gays (PFLAG), the Gay Lesbian Straight Education Network (GLSEN), and the Human Rights Campaign (HRC).

"Allowing access to web sites that present one side of an issue while blocking sites that present the other side is illegal viewpoint discrimination," said Catherine Crump, a staff attorney with the ACLU First Amendment Working Group and lead attorney on the case.

"This discriminatory censorship does nothing to make students safe from material that may actually be harmful, but only hurts them by making it impossible to access important educational material."

Last month, the ACLU issued a warning to Tennessee public schools, saying that if they did not allow access to LGBT web sites, the group would file a lawsuit. (See "ACLU to schools: Stop blocking gay sites.")

According to the ACLU, no Tennessee public school has yet to comply with its request.

"We didn’t want to wait any longer to take action," Crump told eSchool News, "because we want this settled before the 2009-10 school year, before more students go through the same treatment."

The school districts block the internet filtering category designated "LGBT," which includes sites that "provide information regarding, support, promote, or cater to one’s sexual orientation or gender identity." They do not, however, block sites that condemn homosexuality or promote "reparative therapy," a practice purporting to "cure" LGBT people–a practice the ACLU says is denounced as dangerous and harmful to young people by such groups as the American Psychological Association and the American Medical Association.

The ACLU sued Metro Nashville and Knox County schools in the U.S. District Court for the Middle District of Tennessee. The group filed its lawsuit on behalf of two high school students in Nashville, one student in Knoxville, and a high school librarian in Knoxville who is the advisor of the school’s Gay-Straight Alliance (GSA). 

In an interview with eSchool News, Crump said Knox County never replied to the ACLU’s warning, and Metro Nashville "did acknowledge our warning, but declined to formally put in writing that they would stop banning LGBT web sites."

Knox County declined to comment on the lawsuit, saying it does not discuss matters of open litigation. Metro Nashville had not returned messages left by an eSchool News reporter as of press time.

However, Metro Nashville’s response letter from May 6 is posted on the ACLU’s web site.

In its May 6 letter to the ACLU, Metro Nashville ("MNPS") says it "continues to explore the ramifications of your request. Unblocking this particular category of web sites is not a simple task. There are many issues to consider. We are in discussions with ENA … as to available technology and possible extra costs to MNPS. MNPS has not reached a final decision on your request. MNPS remains committed to reaching a resolution in the near future."

Crump said the ACLU would drop its lawsuit if the districts stop filtering what it calls constitutionally protected speech.

"Students need to be able to access information about their legal rights or what to do if they’re being harassed at school," said Keila Franks, a 17-year-old student at Hume-Fogg High School in Nashville and a plaintiff in the case. "It’s completely unfair for schools to keep students in the dark about such important issues and treat web sites that just offer information like they’re something dirty."

The lawsuit charges that blocking LGBT sites violates students’ First Amendment rights by only allowing access to sites that present an anti-gay point of view, while blocking access to sites that support LGBT rights.

According to the plaintiffs, the filtering hinders the ability of GSAs and their members to facilitate club activities and keeps students from accessing important information about scholarships for LGBT students or doing research for school-related assignments.

The ACLU first learned about the filtering from Andrew Emitt, a Knoxville high school student who discovered the problem while trying to search for LGBT scholarships. Internet filtering software is mandated in public schools by Tennessee law, which requires schools to implement software to restrict information that is obscene or harmful to minors. However, the "LGBT" category does not include material that is sexually gratuitous and already included in the "pornography" filtering category, the ACLU says.

"While schools may have an interest in using filters to block material that could be harmful to minors, blocking access to information about LGBT issues while allowing anti-gay information is unlawful and potentially dangerous," said Tricia Herzfeld, a staff attorney with the ACLU of Tennessee. "There is no place for this kind of unconstitutional censorship in our public schools."

Bryanna Shelton, a plaintiff from Fulton High School in Knox County, and a gay student, said her school told her that the sites were banned because they had nudity and inappropriate content.

"There’s no nudity, there’s nothing wrong … there’s nothing like that," said Shelton.

Bryanna’s mother, Angie Wright, said she’s shocked the school would do something like this.

"It’s disturbing as a parent, because I don’t want my child’s liberties being disqualified just because she’s gay."

Eric Breisach, an attorney with Womble Carlyle Sandridge and Rice PLLC, said the lawsuit highlights the difficulty of balancing First Amendment considerations with technological limitations.

“Selectively limiting web site access can be considered the modern-day version of book banning from school libraries—only vastly more complicated,” said Breisach, a communications lawyer who is not connected to the case. “Public school districts typically have had considerable discretion with respect to developing curriculum that instills community values; however, voluntary inquiry in a school library can defy such control. Public school districts generally cannot ban books from school libraries simply because they do not like the ideas contained in those books.”

What’s more, Breisach added, if the filtering blocks only one viewpoint, but allows access to sites expressing the opposing viewpoint, “the limitation is likely to be even more suspect.”

Crump said that if Knox County and Metro Nashville don’t stop blocking LGBT sites before the trial, the ACLU hopes the court will rule that the filtering violates the First Amendment.

"As for the 150 other districts that still block educational LGBT sites, we hope that by winning this lawsuit, it will encourage the other districts to comply with our warning and stop blocking these sites," she added.

Links:

ACLU LGBT site

Metropolitan Nashville Schools

Knox County Schools

ACLU Warning Letter

MNPS Response Letter (dated May 6)

PFLAG

GLSEN

HRC

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