Amicus Brief: Parents Defending Education v. Olentangy Local School District Board of Education

The Olentangy Local School District (Columbus, Ohio area) maintains three overlapping speech policies that punish students for expressing sincerely held beliefs about sex and gender and force them to affirm beliefs they do not hold. By the district’s own admission, the three policies require students to use classmates’ “preferred pronouns” and to otherwise refer to peers based on their gender identity rather than their biological sex. The policies likewise prohibit students from using language that is “based upon [another’s] transgender identity” and that others find “insulting,” “dehumanizing,” “unwanted,” “discomfort[ing]” or “offensive.” These speech restrictions apply both on and off campus—even to social media statements posted from a student’s bedroom. Parents Defending Education filed a complaint for declaratory and injunctive relief alleging violation of students’ First Amendment rights and parents’ Fourteenth Amendment rights. The district court found that PDE had standing but ruled for the school district on the merits.

On appeal before the Sixth Circuit, MI joined the Foundation for Individual Rights and Expression on an amicus brief supporting the parents and defending student speech. We focused on the broad right to engage in nondisruptive speech that students enjoy under Tinker v. Des Moines (1969) and the prohibition on compelled speech in West Virginia v. Barnette (1943). Nor can schools issue speech codes to prevent harassment under the standards the Supreme Court set out in Davis v. Monroe County Board of Education (1999), which defines harassment as pervasive conduct, not speech.

A divided Sixth Circuit panel nonetheless affirmed the prohibition on speech using biologically accurate pronouns, over a dissent by Judge Alice Batchelder. PDE filed a petition for review by the whole court (“en banc”) and MI has now joined the Independent Women’s Law Center and Burke Law Group on a short brief supporting that petition. We make the same points about Tinker and Barnette, and add a discussion of how the school board’s policies harm girls and women in particular.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

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