Lambda Legal has won an important, partial victory for sixteen-year-old Amber Hatcher in a federal case involving the Day of Silence.
The Day of Silence is an annual day-of-action when students across the country take a vow of silence for all or part of the school day to bring attention to the silencing effects of bullying faced by lesbian, gay, bisexual and transgender youth.
Related Link: The Day of Silence is Almost Here
As her legal complaint explains, Amber, an openly lesbian student at DeSoto County High School in Arcadia, Florida, attempted to observe the event last year by remaining silent during the school day (except when addressed directly by a teacher), by passing out information about the reasons for her silence, and by wearing a t-shirt with the message “DOS April 20, 2012: Shhhhhh.” School officials, however, cut her participation short—by calling her to an administrator’s office during her third class and suspending her for the remainder of the day.
Lambda Legal filed suit on Amber’s behalf this year, seeking, among other forms of relief, a judicial declaration that school officials had violated Amber’s constitutional rights by punishing her participation in the Day of Silence last April. Lambda Legal also sought a “preliminary injunction” ordering the school district to respect Amber’s right to participate in the event this year.
This year’s Day of Silence takes place on April 19, 2013.
The Ruling: No Preliminary Injunction, but the First Amendment Claims Survive, and Amber Will Be Able to Observe this Year’s Day of Silence
In two interrelated rulings issued in Amber’s case, a federal judge in the Middle District of Florida recognized the well-established principle that students have a constitutional right under the First Amendment’s Free Speech Clause to engage in non-disruptive protests at school. (Note: It’s also well established that “free speech” can include the freedom not to speak.)
Applying the general principles to Amber’s situation, the judge not only denied a request from the defendants to dismiss Amber’s free-speech claims, but he found a “substantial likelihood” that Amber would ultimately succeed on those claims (at a later stage of the litigation), primarily because of the school’s treatment of her last year.
While the judge declined Amber’s request for a “preliminary injunction” that would order the district to respect her right to observe the Day of Silence this year, the judge’s decision on this point was mostly based on school officials’ assurances that they will now (finally) respect Amber’s rights. The defendants agreed at a court hearing, for example, that they will allow Amber to remain silent on this year’s Day of Silence (except if she is called on in class), and that Amber may speak with other students about the event, wear a t-shirt supporting the event, display posters, and distribute cards or other literature.
In declining to issue the injunction, the judge also noted that the principal and superintendent who were involved in prohibiting Amber’s activities last year no longer work in the school district.
The judge held, in short, that an injunction for this year’s event was unnecessary. (The judge also believed that it would be difficult to come up with precisely the right language for a preliminary injunction in the circumstances of this case, and that language providing sufficiently clear guidance to the district had not been proposed.)
The upshot is that, one, Amber will be able to participate in the Day of Silence this year, even though the court won’t actually issue an order to that effect, and two, Amber can proceed with her First Amendment lawsuit against school officials and the school board based on last year’s violation of her rights.
As part of one of the two rulings, however, the judge dismissed additional claims that Amber had brought, based on the same facts, under the Equal Protection Clause of the Fourteenth Amendment. Though that part of the judge’s decision is both unfortunate and flawed, it doesn’t affect the heart of Amber’s suit, which is based on the First Amendment.
In a statement issued when Lambda Legal filed suit, Amber said,
There are many LGBT kids in my school who have been bullied and harassed and who feel unsafe. I just wanted to stand up for all the kids in my school, gay or straight, who don’t feel like they have a voice to stand up for themselves. I wish my school would help me create an accepting environment for LGBT kids, not single me out for punishment.
We’re glad that the school has changed its position and represented to the Court that Amber and other students will be able to participate in [the] National Day of Silence this year. Amber was forced to literally make a federal case out of the situation in order to ensure that her rights were not trampled again this year. We’re proud of Amber for standing up for herself and for her classmates.
Read the full press release from Lambda Legal about Amber’s case.
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*Photo courtesy of Lambda Legal