Gillman v. Holmes County School District

In early September 2007, a lesbian student at Ponce de Leon High School in Ponce de Leon, Florida, reported anti-gay harassment from fellow students to the school's principal, David Davis. The student reported that Davis told her being gay was wrong and she should not advertise her sexual orientation. To show support for the student who complained, a group of students began to write "GP," "gay pride," and other pro-gay slogans on their arms, clothing, and book binders. In response to a rumor that Davis had invited an anti-gay preacher to speak at the school, the group of students discussed walking out of the assembly in protest. When the rumored "morality assembly" did occur on September 12, 2007, no students walked out.[1]

In the days following the assembly, Davis called in the students who were displaying pro-gay messages to ask them about their sexual orientations and instruct them not to wear rainbow belts or to write "GP" or "gay pride" on their arms or notebooks. One of the questioned students was plaintiff Heather Gillman's cousin. On Friday, September 21, 2007, and Monday, September 24, 2007, Davis suspended eleven students, including Heather's cousin, for five school days each for their involvement in exhibiting pro-gay messages. As grounds for the suspensions, Davis alleged that the students belonged to a "secret society" or "illegal organization",[2] had threatened to walk out of a school assembly, and had disrupted the school.[3]

To show support for her cousin, eleventh-grade student Heather Gillman wore a rainbow belt and a T-shirt that said "I support gays" to school. When she was not disciplined, she sought clarification from the School Board on its policies regarding pro-gay expression and clothing.[4] The School Board's attorney responded that all pro-gay symbols and slogans were banned because they would "likely be disruptive and interfere with the educational process."[2] He also alleged that such symbols represented membership in an "illegal organization."

Judge Smoak found that the events at Ponce de Leon High School in September 2007 were insufficiently disruptive to justify a ban on the students' free speech and that Davis unlawfully banned the speech at issue because of his own personal viewpoint on the issue of homosexuality. The judge also found that the School Board, despite its claims, was equally at fault in the suppression of free speech, since it was aware of the dispute and failed to conduct a thorough investigation.

The judge permanently enjoined the School Board and "all... persons or entities" associated with it from restraining, prohibiting, or suppressing any student within Holmes County School District from expressing their support for the respect, equal treatment, and acceptance of gays and lesbians.[3] The judge's order also warned the district not to retaliate against students because of the lawsuit.[5] I. Background Plaintiff Heather Gillman, through her mother, Ardena Gillman, has sued Defendant School Board for Holmes County, Florida, alleging that the School Board has deprived her of her right to free speech and political expression and has engaged in viewpoint-based discrimination, in violation of the First and Fourteenth Amendments to the United States Constitution. *1362 Gillman is an eleventh grade student at Ponce de Leon High School, a public school in a rural community in the Florida panhandle serving approximately four hundred students in grades six through twelve. Gillman, who identifies herself as heterosexual, contends that the School Board and the principal of Ponce De Leon, David Davis, unlawfully prohibited her and other students from wearing or displaying T-shirts, armbands, stickers, or buttons containing slogans and symbols which advocate the acceptance of and fair treatment for persons who are homosexual. Banned from the school are rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I'm Straight, But I Vote Pro-Gay,” “I Support Equal Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”

II. Facts This case arose from events involving a homosexual student at Ponce de Leon High School on Friday, September 7, 2007. The twelfth-grade student, Jane Doe, reported to a teacher's aide that she had been taunted by a group of approximately five middle school students because of her sexual orientation. The middle school students allegedly told Jane that “dykes,” such as herself, were “nasty,” “gross,” and “sick.” The teacher's aide reported the incident to Principal David Davis.

At the end of the school day on the following Monday, September 10, 2007, Davis called Jane into his office. Davis asked Jane if she had told the teacher's aide that she identified herself as a lesbian. Jane answered, “Yes.” Davis then asked, “Are you a lesbian?” Jane again answered, “Yes.” Davis counseled Jane that it was not “right” to be homosexual. He then questioned Jane about whether her parents were aware of her sexual orientation. When Jane answered in the negative, Davis asked Jane for her parents' telephone number so that he could call them and inform them of her sexual orientation. FN1 Davis also instructed Jane to “stay away” from the middle school students or that he would suspend her. Jane left Davis's office in tears.

FN1. Testimony at trial revealed that Jane's father threatened to kick Jane out of the house upon learning of his daughter's sexual orientation.

Jane was not present at school the following day because her sister had surgery. However, Davis's rebuke of Jane on the basis of her sexual orientation became known to the student body. A false rumor circulated that Jane was absent from school because Davis had suspended her for being homosexual. Numerous students expressed their support for Jane by writing “GP” or “Gay Pride” on their bodies, wearing T-shirts with messages supportive of gay rights, yelling “Gay Pride” in the hallways, circulating petitions to demonstrate support for gay rights, and creating signs with messages supporting homosexuals.

On Tuesday, September 11, 2007, a rumor circulated among the student body that Davis had invited an anti-gay preacher from a local church to speak at a mandatory assembly on Wednesday, September 12, 2007. A silent bulletin on the video monitors in each classroom stated that a “morality assembly” would be held at the end of the day on Wednesday.

During lunch, on Wednesday, September 12, 2007, a group of Jane's friends discussed the prospect of peacefully walking out of the assembly in protest. Because the preacher did not discuss issues relating to homosexuality at the assembly, *1363 and because Davis instructed students that a walk-out would not be tolerated, no students walked out in protest, and the assembly proceeded without incident.

Following the assembly, Davis began investigating what had come to be known as the “Gay Pride” movement at the school. He interviewed approximately thirty students, interrogated them about their sexual orientations, and questioned them about their involvement in the planned walk-out of the assembly and their activities in relation to the movement. During those meetings, Davis instructed students who were homosexual not to discuss their sexual orientations. He also prohibited students from wearing rainbow belts or writing “Gay Pride” or “GP” on their arms and notebooks. He required students to wash “GP” or “Gay Pride” from their arms and hands and lifted the shirts of female students to verify that no such writings were present on their bodies.

One of the students that Davis questioned was Gillman's cousin, who identifies as homosexual. Davis questioned Gillman's cousin about her sexual orientation. Davis stated that being gay was against the Bible and that it was not right. He expressed his hope that Gillman's cousin would not “go down the road” of being a homosexual. Davis then instructed her not to discuss her sexual orientation with any students at the school, not to say “Gay Pride” or write it on her body or school materials, and not to wear her rainbow-colored belt. Davis warned Gillman's cousin that if she violated his instructions, he would suspend her from school.

On Friday, September 21, 2007, and Monday, September 24, 2007, Davis suspended eleven students, including Gillman's cousin, for five school days each as punishment for their involvement in the “Gay Pride” movement. As grounds for the suspensions, Davis explained that the students belonged to a “secret society” or “illegal organization” forbidden by school board policy; had threatened to walk out of an assembly; and had disrupted the school. Davis told the mother of a student whom he had suspended that he could secretly “send her [daughter] off to a private Christian school down in Tallahassee” or to the juvenile detention center and that “if there was a man in your house, your children were in church, you wouldn't be having any of these gay issues.”

On Wednesday, September 26, 2007, Gillman wore a rainbow belt and a handmade shirt with the slogan “I Support Gays” to school as an expression of support for her cousin, her acceptance of homosexuals, and her belief that homosexuals should be afforded equal and fair treatment. On Thursday and Friday of that week, Gillman wore a rainbow belt to school to express the same beliefs. Gillman's conduct did not cause any disruption at the school or other negative reactions, and she was not reprimanded or punished.

In light of Davis's prohibition of messages relating to the support and acceptance of homosexuals, Gillman sought clarification from the School Board about its own position on the matter. On November 2, 2007, Gillman and her cousin (who had previously been suspended by Davis), through legal counsel, sent a letter to the attorney for the School Board. The letter requested guidance on which phrases and symbols students could display at school without being disciplined. Specifically, Gillman sought permission from the School Board to display rainbows, pink triangles, and the following slogans: “Equal, Not Special Rights,” “Gay? Fine By Me,” “Gay Pride” or “GP,” “I Support My Gay Friends,” “I Support Gays,” “God Loves Me Just the Way I Am,” “I'm Straight, But I Vote Pro-Gay,” “I Support Equal *1364 Marriage Rights,” “Pro-Gay Marriage,” “Sexual Orientation is Not a Choice. Religion, However, Is.”

By letter dated November 12, 2007, the School Board responded that none of the phrases, symbols, or images contained in the letter dated November 2, 2007, could be displayed by students at Ponce de Leon High School. The School Board justified its censorship on the ground that the expressions indicated membership in an “illegal organization” prohibited by School Board policy and were disruptive to the educational process. The letter cited students' plan to walk out of the school assembly on September 12, as an example of the disruptive effect of the messages.

In her complaint (Doc. 1), filed January 31, 2008, Gillman contended that she desires to display the symbols and messages contained in the letter dated November 2. She has, however, abstained from doing so based on her fear that she will be disciplined for violating the verbal and written instructions of Davis and the Holmes County School Board prohibiting students from displaying the symbols and messages.

III. Procedure Named as defendants in the complaint were the School Board for Holmes County, Florida, and David Davis, in his official capacity as principal of Ponce de Leon High School. Gillman alleged that Defendants' conduct in prohibiting students from wearing clothing and displaying writings and symbols which advocate the acceptance of and fair treatment for persons who are homosexual (1) deprived her of her right to free speech and political expression and (2) constituted viewpoint-based discrimination, in violation of the First and Fourteenth Amendments to the United States Constitution. Gillman requested the following relief:

(1) Entry of an order declaring that Defendants violated Gillman's rights under the First and Fourteenth Amendments to the United States Constitution;

(2) Entry of an order preliminarily and then permanently enjoining Defendants from restraining, prohibiting, or suppressing the speech and expression at issue;

(3) Entry of an order enjoining the enforcement of Defendants' policies relating to “illegal organizations” or “secret societies” as they pertain to the speech and expression at issue in this case;

(4) Entry of an order directing Defendants to remedy their past restraints of the speech and expression at issue, including, but not limited to, notifying the officials and student body at Ponce de Leon High School in writing that students are permitted to engage in speech and expression which support the equal treatment and acceptance of homosexuals;

(5) Entry of an order enjoining Defendants from retaliating against Gillman or any other student for (a) bringing this lawsuit or (b) their past or future speech and expressions supporting the equal treatment and acceptance of homosexuals;

(6) Entry of judgment in favor of Gillman and against the School Board for nominal damages of $1.00;

(7) An award of reasonable attorneys' fees and costs incurred in connection with this action under 42 U.S.C. § 1988; and

(8) The retention of jurisdiction of this case by this Court to enforce the terms of its orders.

On February 11, 2008, Gillman filed a motion for preliminary injunction (Doc. 7). The motion was denied as moot, per the parties' stipulation to consolidate the motion with a bench trial on the merits of the complaint. On February 21, 2008, Defendants filed a motion to dismiss David Davis, in his official capacity (Doc. 22). Per the parties' stipulation, the complaint *1365 against David Davis, in his official capacity, was dismissed with prejudice on March 10, 2008 (Doc. 30). On April 28, 2008, Gillman filed a motion for partial summary judgment on her free speech claim, and the School Board filed a motion for partial summary judgment on Gillman's claim for viewpoint-based discrimination. Both motions were denied on May 1, 2008.

A bench trial was held on May 12 and 13, 2008. Following the presentation of evidence, I entered an oral order granting all relief requested by Gillman. On May 15, 2008, Judgment was entered in favor of Gillman and against the School Board in the amount of $1.00 (Doc. 15). On June 25, 2008, following a mediation, the parties filed a stipulation for entry of judgment as to attorneys' fees and costs (Doc. 87). Pursuant to the stipulation, judgment was entered in favor of Gillman and against the School Board for attorneys' fees and costs in the amount of $325,000.00 (Doc. 89).

• Henkle v. Gregory

• Associated Press: "Federal judge raps Fla. principal for treatment of gay students," July 29, 2008, accessed February 19, 2010
• Associated Press: "Fla. town backs ex-principal in campaign against gay students," August 22, 2008, accessed February 19, 2010
• WJHG: "Federal Judge Rules in Favor of Gay Rights Expression," May 13, 2008, accessed February 19, 2010

• Text of Gillman v. Holmes County School District, 567 F. Supp. 2d 1359 (N.D. Fla. 2008) is available from:  CourtListener  Google Scholar  Leagle