“To tell a 7-year-old boy that he can’t talk about his family not only makes that child feel confused and hurt – it violates his Constitutional right to free speech and equal treatment,” said Ken Choe, a staff attorney from the ACLU Lesbian and Gay Rights Project who is handling the matter.  “At the ACLU we often deal with schools that mistreat treat gay children and children who have gay parents, but this is beyond the pale.”

On a student behavior contract form that Marcus had to fill out and give to his mother about the incident, Marcus wrote that the thing he did wrong was that he “sed bad wurds.” A handwritten note at the top of the form from Marcus’s teacher further explains: “He explained to another child that you are gay and what being gay means.”  On a behavior report form signed by the assistant principal, the teacher wrote, “Marcus decided to explain to another child in his group that his mom is gay.  He told the other child that gay is when a girl likes a girl.  This kind of discussion is not acceptable in my room.  I feel that parents should explain things of this nature to their own children in their own way.” 

“Of course we believe that parents should be the ones who talk with small children about things like sex, but Marcus McLaurin’s school seems to think that he was talking about sex when all he was talking about was his two mothers,” said Joe Cook, Executive Director of the ACLU of Louisiana.  “The fact is that there are children of lesbian and gay parents in schools throughout Louisiana, and those children have the same right as any other children to talk about their families.”

In its letter to the principal of Ernest Gallet Elementary School, the ACLU Lesbian and Gay Rights Project and the ACLU of Louisiana demand that the school remove all mentions of the incident from Marcus’s disciplinary record and refrain from restricting his speech in the future, and offer apologies to Marcus and his mother.  The text of the ACLU’s letter follows this release.

December 1, 2003

BY FACSIMILE AND MAIL

Virginia Bonvillain
Principal
Ernest Gallet Elementary School
2901 East Milton Avenue
Youngsville, LA 70592

Dear Ms. Bonvillain:

            We at the American Civil Liberties Union Foundation and the American Civil Liberties Union of Louisiana represent Sharon Huff, the mother of Marcus McLaurin, a 7-year-old second-grade student at your school.  On November 11, 2003, school officials disciplined Marcus solely because he informed a classmate that his mother is a lesbian.  Their actions violated his constitutional rights to free expression and equal treatment.  Moreover, by communicating to him that it is wrong to speak about his family, they caused him considerable distress.  We seek to work with you to resolve this matter without resort to litigation.

            The Supreme Court has long recognized that students do not “shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.”  Tinker v. Des Moines Indep. Community Sch. Dist., 393 U.S. 503 (1969).  It is clearly established that the expression to which a student is constitutionally entitled includes expression involving issues of sexual orientation.  See, e.g., Henkle v. Gregory, 150 F. Supp. 2d 1067 (D. Nev. 2001) (holding that a school official may not silence a student when he or she speaks out about issues of sexual orientation).

            In addition, the Constitution forbids you from discriminating between students with heterosexual parents and students with lesbian or gay parents.  Such discrimination is a form of sexual orientation discrimination as well as sex discrimination, and disparately penalizes the exercise of the fundamental right to personal autonomy.  See Lawrence v. Texas, 123 S. Ct. 2472 (2003) (holding that lesbian and gay couples have the same right to enter into relationships as heterosexual couples); Romer v. Evans, 517 U.S. 620 (1996) (holding that disfavoring lesbian and gay people is never a legitimate aim of the government).

            The censorship and discrimination in which you have engaged not only disregard the fundamental guarantees of the Constitution but also undermine the educational mission of your school.  Student harassment is one of the most serious concerns facing schools today.  When a student is harassed, his or her ability to learn is jeopardized.  A student who is harassed may perform poorly in class, abandon a school activity, or even suffer physical injury.  The harm is no less when a student is harassed because he or she is, or his or her parents are, lesbian, gay, bisexual, or transgender (LGBT).  Indeed, student harassment based on sexual orientation or gender identity is especially egregious and systemic.  In a recent survey, 42% of LGBT students reported physical harassment because of their, or their parents’, sexual orientation or gender identity.  The severity of the harm of such harassment is recognized by the law.  A school that does not act to stop student harassment based on sexual orientation or gender identity risks liability.  Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9^th Cir. 2003); Nabozny v. Podlesny, 92 F.3d 446 (7^th Cir. 1996).  Given the serious consequences of student harassment based on sexual orientation or gender identity, it is important that a school discourage such harassment by encouraging statements that foster tolerance of and respect for LGBT and LGBT-affiliated peers.  Disciplining Marcus for informing a classmate that his mother is a lesbian does nothing toward this end.  Indeed, by prohibiting Marcus from making such a statement, school officials have done a disservice to the best interests of the school community.

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