Law & Courts

Federal Appeals Court Upholds School’s Removal of 4th Grader’s Essay on LGBTQ Rights

By Mark Walsh — March 03, 2021 4 min read
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A federal appeals court has upheld the authority of school officials to withhold a 4th grader’s essay in support of LGBTQ rights from a class booklet that was to be sent home to families.

The principal of a South Carolina elementary school told the child’s mother that “it was not age-appropriate to discuss transgenders, lesbians, and drag queens outside of the home,” and that such a topic “would be disagreeable” in the community, court papers say.

The family sued, alleging a First Amendment free speech violation and other claims, but lost in a federal district court and in a ruling this week by a unanimous three-judge panel of the U.S. Court of Appeals for the 4th Circuit, in Richmond, Va.

The appellate court said the case “falls neatly within the … framework” of the U.S. Supreme Court’s 1988 decision in Hazelwood School District v. Kuhlmeier.

In that case, a high school principal had refused to allow the student paper to publish articles on divorce and teenage pregnancy. The high court said that 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.”

A student described herself as a ‘proud advocate’

The controversy occurred during the 2018-19 school year at Anderson Mill Elementary School in Spartanburg County School District No. 6. Students in the 4th grade class were assigned to write an “essay to society” on any topic.

Court papers say the student identified as R.R.S. has a grandfather who is a member of the LGBTQ community and the student viewed herself as a “proud advocate” of LGBTQ rights.

In the essay, the student refers to disapproval of transgender people by some in society.

“People need to think before they speak because one word can hurt someone’s feelings,” the essay says. “We need to fix this because this is getting out of hand!”

Elizabeth Foster, the principal, told R.R.S.’s teacher that the topic was inappropriate. The student then submitted a second essay, on bullying, which passed muster. But R.R.S.’s mother engaged in a series of communications with Foster in which the principal defended the decision to exclude the LGBTQ essay in what the parent described in her suit as “abusive” and “emotionally distressing” terms.

These included the principal’s references to “transgenders, lesbians, and drag queens” and a comment that “due to the type of school this is, the people that work here and the students and families of the students that go here, the topic would be disagreeable,” the parent’s lawsuit says.

After the mother filed her lawsuit, Foster changed course and said both of R.R.S.’s essays would be published in the class booklet. But by that time, the mother was concerned about her daughter’s privacy and both essays were removed, court papers say.

The lawsuit proceeded on the basis that the original decision to exclude the LGBTQ essay was a violation of the First Amendment.

The essay booklet bore the school’s ‘imprimatur’

A federal district court dismissed the mother’s claims against Foster in her individual capacity and against the school district. The 4th Circuit court, in its March 2 decision in Robertson v. Anderson Mill Elementary School, affirmed the district court.

The appeals court said Foster did not violate R.S.S.’s speech rights based on the Hazelwood decision because the class essay booklet was a form of school-sponsored student speech.

“To begin, it was school officials—most notably, R.R.S.’s 4th grade teacher—who decided to compile the 4th grade students’ essays into a booklet and send copies of that booklet home with the students for their families to read,” the appellate court said. “It would be reasonable, then, for the students’ families to view the essay booklet as bearing the imprimatur of Anderson Mill Elementary School and the School District.”

In addition, the court said, “R.R.S. wrote the LGBTQ-themed essay to society pursuant to a school assignment that was supervised by both the 4th grade teacher and Principal Foster. Clearly, the essays were part of the Anderson Mill Elementary School 4th grade curriculum.”

And the principal acted out of legitimate pedagogical concerns because the essay booklet was also going to be placed in the classroom for 4th graders to read and discuss during the school year, the court said.

“While reasonable minds could debate the pedagogical efficacy of shielding 4th graders from topics like sexuality and gender identity, it cannot be denied that maintaining the age-appropriateness of school-sponsored expressive activities is a pedagogical concern that passes muster under Hazelwood,” the court added.

The 4th Circuit court also dismissed the mother’s claim that the principal had discriminated against the student based on the student’s viewpoint. None of the principal’s justifications about the age-appropriateness of the essay or her fear that it would anger families “suggest that the restriction had anything to do with the content of R.R.S.’s essay. On the contrary, these justifications illustrate that Principal Foster was averse to the subject of LGBTQ rights appearing in the essay booklet.”


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