Docket number: No. 23-3630 (6th Cir.)
On September 29, HLLI filed an amicus brief in support of Parents Defending Education’s challenge to the unconstitutional speech restrictions in the Olentangy Local School District’s student code of conduct.
At the district court, PDE challenge the speech restrictions which effectively ban “misgendering” other students by using the “wrong” pronoun to address them or speak about them. PDE sought to enjoin the unconstitutional speech restrictions but the district court concluded that it was unlikely to succeed on the merits, thereby refusing to issue them an injunction. PDE appealed that decision.
HLLI amicus brief argues that the district court’s decision mangles the Sixth Circuit’s existing case law, namely its decision in Meriwether v. Hartop, 992 F.3d 492 (6th Cir. 2021). Specifically, the court inverted First Amendment doctrines applying to school students and to public employees, finding the former’s free speech rights more circumscribed than the latter. In reality, it is public employees such as school teachers who knowingly sacrifice some of the free speech rights when accepting employments from the government. Students, however, who are compelled to attend school cannot be said to have made any voluntary sacrifice of their rights. Likewise, the school district’s authority to regulate speech diminishes the further from the class room the speech occurs, whereas the speech restrictions here also targeted off campus speech. For these reasons, HLLI argues the district court order should be reversed and PDE should be awarded an injunction.
On July 29, 2024, the Sixth Circuit affirmed the denial of injunction over a 30-page dissent by Judge Batchelder, who would have found that the restrictions “force students to fundamentally alter the message they wish to send,” and therefore violate the First Amendment. The dissent cited the argument in HLLI’s amicus brief that government employee speech is more circumscribed than student speech. Slip. Op. at 38. The district court failed to apply this balancing test, using instead a more permissive test that applies only to government employees. HLLI agrees with the dissent that requiring “students to affirm beliefs they do not hold… [is] far afield from legitimate pedagogical concerns.”
On August 24, 2024, PDE filed a petition to the Sixth Circuit for en banc rehearing. And, on September 3, 2024, HLLI filed an amicus brief in support of their rehearing petition. The Sixth Circuit granted rehearing before the court en banc. On December 16, 2024, HLLI filed a supplemental amicus in support of PDE at the en banc rehearing.