39 Trial Lawyer • Spring 2024 closet had close echoes to the experience of another teacher I had represented nearly 20 years before. Wendy Weaver was a longtime high school teacher in Nebo, Utah. After she told a student that she was gay, her school district sent her an ominous letter: The District has received reports that you have made public and expressed to students your homosexual orientation and lifestyle. If these reports are true, we are concerned about the potential disruption in the school community and advise you of the following: • You are not to make any comments, announcements or statements to students, staff members, or parents of students regarding your homosexual orientation or lifestyle. • If students, staff members, or parents of students ask about your sexual orientation or anything concerning the subject, you shall tell them that the subject is private and personal and inappropriate to discuss with them. Just as Gresham-Barlow did to Soell decades later, the Nebo School District admonished Wendy Weaver that her very identity was “private,” forcibly shoving her back into the closet. Only a few weeks later, Weaver’s ex-husband, who also taught at the local high school, received a similar letter. But this one did not advise him that he was forbidden from discussing his own sexual orientation. Rather, he was only forbidden from discussing his ex-wife’s sexual orientation. In federal court in Salt Lake City, Weaver won her motion for summary judgment against the school district. The court had to determine whether the “school’s interests” in restricting Weaver’s speech “outweigh[ed] Weaver’s ‘interests’ in acknowledging her sexual orientation and living her life openly as a lesbian.” Weaver v. Nebo Sch. Dist., 29 F. Supp. 2d 1279, 1285 (D. Utah 1998). The court explained that where no other teacher was prohibited from discussing their sexual orientation, it was clear that “the School District wanted to silence Weaver’s speech because of its expected prohomosexual viewpoint. Such viewpointbased restriction is constitutionally impermissible.” It found a violation of both the First Amendment and the Equal Protection Clause. Id. at 1290. I was happy to be able to cite that decision when I represented Leo Soell against the Gresham-Barlow School District. Soell ultimately won the right to identify themselves accurately and authentically to all the children in the school. The District also had to provide training for all school staff and teachers, gender-neutral bathrooms throughout the school district and compensation for Soell. All without the teacher having to file a claim. Young bravery More recently, I have had the privilege, together with my colleague Caitlin Mitchell, of representing a child, Lior Onaly-Kelsey, who bravely fought for their elementary school to acknowledge their non-binary identity. Yet again, when Onaly-Kelsey and their mother spoke with the principal of Oak Grove Elementary School in Albany, they were told that it could be “unsafe” for the student to go by their correct pronouns. The school claimed that it had no problems with transgender students — in fact, it said that two were attending the school around the same time. But if that was true, neither of those students was out about being transgender. Having a student who openly identified as non-binary, who was visible about that identity and who demanded respect, they said would be “unsafe.” And indeed, it was unsafe for OnalyKelsey. The school ignored numerous reports of bullying against them both by students and teachers. By the time they were in fifth grade, the bullying was so bad they were forced to go to online school and then to transfer out of the district entirely. Onaly-Kelsey came to us in 2019 when they were 11-years-old. We took their case to trial a few months ago. Onaly-Kelsey is now a sophomore in high school and apparently impressed the jury with their determination and selfpossession, testifying movingly about what they went through just to be who they are. The jury found in their favor on all claims. School districts, campuses and school boards continue to be roiled by questions about what speech is acceptable and what should be condemned or punished. As we consider these questions, it is important to remember that a school district’s determination of what should remain “private” or what might be safe or unsafe for children cannot obliterate an individual’s core right to be who they are. As lawyers, we can make a difference for clients from under-represented communities by fighting for their right to express who they are in all contexts, including within fundamental learning environments like the classroom. Jennifer Middleton is an attorney at Johnson Johnson Lucas and Middleton. She represents employees and individuals in discrimination and civil rights claims against employers, schools and governments. Middleton contributes to OTLA Guardians at the Guardians Club level. Her office is located at 975 Oak St., Ste. 1050, Eugene OR 97401. She can be reached at 541683-2506 or jmiddleton@justicelawyers. com. School districts, campuses and school boards continue to be roiled by questions about what speech is acceptable and what should be condemned or punished.
RkJQdWJsaXNoZXIy Nzc3ODM=