Stop Bullying Trans People!

Education, First Amendment, Hate Crimes, LGBTQIA+, Political Viewpoint

“4th graders granted choice to write a letter to society, the essays to be bound and distributed to parents.” Sounds like something you’d read about on Edutopia for a lesson on building student agency. Unless a student chooses to write about transgender people in South Carolina.

At Anderson Mill Elementary School in Spartanburg, SC, this story ends with a lawsuit affirming the rights of the school not to “publish” student work deemed inappropriate for the student body.

According to attorney Eric Poston in a brief to the court of appeals, in 2019 “[Student A] wrote about the importance of treating everyone with kindness, including LGBTQ persons like her grandfather. For that reason, Principal Foster refused to publish the essay.”

The complaint alleges that the principal (not the classroom teacher) objected to the writing, claiming that “the original paper would ‘make other parents upset,’ ‘would create a undesirable situation at the school,’ was ‘not acceptable’ and that it was ‘not age-appropriate to discuss transgenders, lesbians and drag queens outside of the home.’”

The principal did eventually change her mind, but by that point the student’s mother, concerned about privacy, no longer wanted the essay published. An amended complaint further alleged intentional and negligent infliction of emotional distress after further aggressive communication among the principal, mother, and student.

The district court dismissed the case, citing Muller by Muller v. Jefferson Lighthouse School which explores how students’ free speech rights may be more restricted in elementary versus high school, and granting qualified immunity to the principal. While it is true that school officials should not have to work in an environment in which threats of lawsuits could potentially limit educational experiences, the 4th grader’s words implore kindness and acceptance. 

Many schools utilize anti-bullying curricula and chant slogans like, “sprinkle kindness like confetti!” But by validating the defendant’s argument that treating transgender people with kindness is not age-appropriate and has no legitimate educational purpose, a message is sent to children that is directly at odds with what adults are telling them otherwise.

Two landmark Supreme Court cases relating to students’ rights at school, Hazelwood School District vs. Kuhlmeier and Tinker vs. Des Moines Independent Community School District, traditionally provide the parameters of how to resolve issues of free speech within the school walls, ultimately granting a school board the right to censor against legitimate pedagogical concerns. The question Hazelwood establishes is whether or not speech restriction is “reasonably related to legitimate pedagogical concerns.” Thinking that a student essay might anger some parents does not strike me as reasonable or legitimate, particularly one in which the student argues against bullying.

The U.S. Court of Appeals for the Fourth Circuit upheld the rights of the school, citing the Hazelwood case granting a school the right to restrict speech which could be viewed as school-sponsored, in this case sending home the class booklet of essays (even though each essay clearly has a student author, so no one reading them would reasonably think the school endorsed the opinions shared in each essay). Judge Thacker writes that the principal had the right to be concerned about the appropriateness of the topic in relation to 4th grade pedagogy, and that decision is not the court’s to determine. Further, the principal is entitled to qualified immunity in part because she objected only to the subject of the essay, not the viewpoint. 

While there is a difference between objecting to content based on viewpoint versus appropriateness of content or subject, in this case they are the same: the content was censored because of a perceived inappropriateness for the age, regardless of the fact that the topic involved a person in the student’s life. This student received the message from her school and the court that part of her and her grandfather’s lives is invalid and inappropriate, which seems to be the standard in South Carolina law.

South Carolina is also making anti-LGBTQ headlines recently on a number of issues (visit this website to learn more about how to support trans youth in SC): 

  • Proposed “South Carolina Vulnerable Child Compassion and Protection Act,” doctors could face felony charges and possible loss of medical license for “performing a number of medical procedures on youth for the purpose of affirming their gender identity.” This article from the State quotes information from the Mayo Clinic that certain treatments can improve mental health and “lower rates of depression, anxiety, substance abuse and suicide attempts.”
    • Any official working in a public or private school is prohibited from 
  • A proposed hate crimes bill has been amended to exclude protections for gay or transgender people (original wording: race, color, creed, religion, sex, gender, age, national origin, ancestry, sexual orientation, or physical or mental disability; new wording: race, color, religion, sex, national origin and physical or mental disability.) AP reports South Carolina is one of only three states in the nation without a hate crimes law. The business community is motivated to pass this legislation in order to attract new companies to the state. 
  • Proposed “Save Women’s Sports Act,” which would prevent transgender youth from participating in girl’s sports in middle and high school public and private schools. The SC “General Assembly finds there are two biological sexes, female and male, and that the sex of a person is objectively determined by genetics and anatomy existing at the time of birth.”

The student at Anderson Mill Elementary School was forced to choose another topic for the essay. Here is the revised work, and I think the irony speaks for itself:

revised essay

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