Parents, Families, and Friends of Lesbians and Gays, Inc. et al v. Camdenton R-III School District et al

Filing 9

SUGGESTIONS in support re 6 MOTION for preliminary injunction filed by Ann Elizabeth Blackwell on behalf of Plaintiffs Campus Pride, Inc., Dignity, Inc., Matthew Shepard Foundation, Parents, Families, and Friends of Lesbians and Gays, Inc.. (Attachments: # 1 Exhibit A, # 2 Exhibit A-1, # 3 Exhibit A-2, # 4 Exhibit A-3, # 5 Exhibit A-4, # 6 Exhibit A-5, # 7 Exhibit B, # 8 Exhibit C, # 9 Exhibit D, # 10 Exhibit E, # 11 Exhibit F)(Related document(s) 6 ) (Blackwell, Ann)

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ACLU ol Eastern Missouri 454 Whittier Street St. Louis, MissourI 63108 314.652.3114 314,652.3112 (fax) www, OFFICeRS AND DIReCTORS Month Chaseth May 24,2011 P resident Percy Green Thomas Hade Vice Presidents Terry Blooinbetg Treanrar Dron Smith Secretary STAFF Brenda Jones Bnecutive Director Anthony E. Itutbert Legal Director Grant R. Dnty Stall Atto racy John Chasnorf Program DIrector Virki White Developsastst Director Debbie Reid licecutive Assistant Scott EsnaItuA Development /,.sociflte Rodditt Hod son Program Ass eciate Tim Hadfield Superintendent Catndenton R-llI School District P.O. Box 1409 Camdenton, Missouri 65020 By First Class Mail and Facsimile to (573) 346-9211 Dear Mr. Hadfleld, has received As part of its "Don't Filter Me" initiative, the ACLU that their school district's complaints from students across the country censor websites filtering software has been configured to improperly transgender advocating the fair treatment of lesbian, gay, bisexual, and of LGBT people. We ("LGBT") persons or reflecting the viewpoints that is have found that filtering software frequently includes a filter materials that designed specifically to block access to LGBT-related explicit or pornographic. would not otherwise be blocked as sexually School District We have received complaints that Camdenton R-III resources blocks access to educational LGBT websites and other request supporting LGBT students. In response to a public records district's filtering from the ACLU, your school district confirmed that the Silence, The Trevor software blocks access to websites for Day of Network Project, GSA Network, and Gay, Lesbian, Straight Education websites ("G-LSEN") because they have been categorized as "sexuality" (attached). by the district's filtering software. See Exhibit A public records Based on the information provided in response to the filtering software, the school request, it appears that, as part of its own the company district uses the database of website categories provided by Blacklist is a "IJRL Blacklist." The "sexuality" category created by URL concerning LGBT severely flawed tool that censors virtually any content the First people or representing LGBT viewpoints, in violation of ACLU and Amendment and the Equal Access Act. On behalf of the Page Letter to Superintendent Hadfiekh May 24, 2011 you to this problem and the ACLU of Eastern Missouri, we are writing to alert immediately. request that the filter for "sexuality" be removed press in order to raise awareness We are also sharing a copy of this letter with the the "sexuality" filter, your about this issue. We hope that by promptly disabling other school districts to make school district will set a positive example and prompt their own filtering software. sure that similar filters have not been activated on I. Factual Background About The "Sexuality" Filter. programmers of web filtering In order to determine which websites to block, the different categories. Instead of software mustuse databases that group websites into can choose between several creating the database from scratch, programmers See different databases maintained by third parties. (providing a list of databases to choose / http:/ from). company called created by a It appears that your filtering system uses a database Blacklist was not compiled by "URL Blacklist." The database maintained by TJRL to serve the educational needs of educational professionals or specifically designed aggregation of other free "blacklists" students. Rather, the database is primarily an warns that "{tlhe blacklist does available on theInternet. URL Blacklist specifically due to the bulk of the entries contain sites which are wrongly categorised which is http://uxlblacki5t.00mt?5ec=0me. In being collected using automatic scripts." not only contain sites that are addition, URL Blacklist states that "{t]he blacklist does categories that can be used as white considered 'bad' but it also contains many other is 'bad' -- these are just lists of or grey lists. Being listed does not infer that the site sites." Id. called "adult" and "porn," which Like most databases, URL Blacklist has categories These filters are viewpoint neutral identify sexually explicit or pornographic content. depict heterosexual or homosexual and block websites regardless of whether they and "porn" filters fulfills the district's activity. We believe that enabling the "adult" pursuant to the Children's Internet obligations to block sexi'lly explicit content Protection Act ("CIPA"). "sexuality," which is not But URL Blacklist has an additional category called CIPA. The "sexuality" filter viewpoint neutral and is not necessary to comply with whether the content is sexually blocks all LGBT-related content, regardless of to comply with CIPA because if a explicit. This additional filter is not necessary or pornographic, then the URL website containing LGBT material is also "adult" as "sexuality" and as "adult" or Blacklist software categorizes the website both filter while still filtering out "porn." As a result, schools can remove the "sexuality" or pornographic under URL LGBT-related content that is categorized as "adult" 2 of 7 Pa,e 3 of 7 Letter to Snperiitendent Hadfield, May 24, 2011 Blacklist's other generally applicable categories. At the same time, the "sexuality" filter blocks an enormous range of websites that are not sexually explicit or pornographic in any way. Below are some examples that reflect how the "sexuality" ifiter effectively erases LGBT people and LGBT viewpoints from the Internet. Sites blocked by the "sexuality" filter include: reference materials on sexual orientation from the American Psychiatric Association and the American Academy of Pediatrics; anti-bullying resources from GSA Network and GLSEN; reference information concerning the military's Don't Ask Don't Tell Policy; health resources from the Center for Disease Control and the National Institute of Health; webpages from the American Library Association and the New York Public library concerning LGBT literature; websites for advocacy and legal organizations such as for Love Makes a Family, Freedom to Marry, the No H8T Campaign, Parents and Friends of Lesbians and Gays, Lambda Legal, and the ACLU's LGBT & AIDS Project. As I am sure you will agree, there is no pedagogical reason why any of these websites should be blocked. II. The Sexuality Filter Violates The First Amendment. Your students have a First Amendment right to access the LGBT-related information. that is being needlessly blocked by the "sexuality" filter. "[j]ust as access to ideas makes it possible for citizens generally to exercise their rights of free speech and press in a meaningful manner, such access prepares students for active nd effective participation in the pluralistic, often contentious society in which they will soon be adult members." Bd of .Educ. v. Pico, 457 U.S. 853, 868 (1982) (plurality) (internal quotation marks and citations omitted); see also Fricke v. Lynch, 491 F. Supp. 381, 385 (D.R.I. 1980) (holding that First Amendment protects non-sexual expression of a student's gay sexual orientation). The First Amendment does not require the school district to provide students with internet access, but once the school provides such access it may not selectively censor access to websites in a manner that discriminates against particular viewpoints. cc[Jl]he First Amendment forbids the government to regulate speech in ways that favor some viewpoints or ideas at the expense of others." Lambc Chapel v. Cfr. Moriches Union Free Sch. Dirt., 508 U.S. 384, 394 (1993) (internal quotation marks and citation omitted). When a school "permits the discussion of a topic from [one] perspective, it may not shut out speech that discusses the same topic from a [different] perspective." Child Evangelism Fellowship of N.J. Inc. v. Stafford Tp. School jC7 Page 4 Letter to Superintendent Hadfield, Ma 24, 2011 Dirt., 386 F.3d 514, 528 (3d Cit. 2004) (Alito,J.). The "sexuality" filter is engages in unconstitutional viewpoint discrimination. fair Although the "sexuality" filter blocks any access to materials advocating for the treatment of LGBT people, the filter does not block sites that condemn through so-called homosexuality, urge LGBT to try to change their sexual orientation the "reparative therapy," or oppose legal protections for LGBT people. For example, and filter does not apply to the websites for the Family Research Council, Parent Association for Research & Friends of Ex Gays, People Can Change, National Fund. Therapy of Homosexuality, Exodus International, or the Alliance Defense of Indeed, many otherwise permissible topics are blocked by the filter solely because GOP but does their LGBT viewpoint. The filter does not block the website for the Catholic Church but block GOProud. The filter does not block the website for the to access the does block the website for Dignity USA. The filter even allows students blocks them Supreme Court's decision in Bowers v. Hardwick (an anti-gay decision) but Texas (overturning from accessing the Court's more recent opinion h-i Lawrence Bowers). filtering The First Amendment requires Carndenton R-III School District to use a or ideas software that does not "regulate speech in ways that favor some viewpoints The "sexuality" filter does at the expense of others." Lamb's Chapel, 508 U.S. at 394. not satisfy these constitutional standards. III. The Sexuality Filter Violates The Equal Access Act. filter also In addition to violating students' First Amendment rights, the "sexuality" student who are seeking to form gayviolates the Equal Access Act because it denies straight alliances ("GSAs") equal access to school resources that are generally Mergens, 496 U.S. at available to other non-curricular clubs. See 20 U.S.C. ยง 4071 et seq.; Gonale v. Bd. of 247; SAGE v. Osseo Area Schools Dirt., 471 E3d 908 (8th Cit. 2006); Act mandates that, Educ., 571 F. Supp. 2d 1257 (S.D. Fla. 2008). The Equal Access permits even when a public secondary school that received federal financial assistance permit all other nonone non-curricular group to use school resources, it must U.S. at 237, curriculat student groups to do so, too, on equal terms. See Mergens, 496 public address boards, 247 (requiring equal access to school newspaper, bulletin of Educ., 258 E system, and club fair); Bqyd County High $ch. Gaji Strazght Alliance v. Bd. Act by denying GSA Supp. 2d 667 (ED. Ky. 2003) (school violated Equal Access clubs equal access to school bulletin board and intercom). provide The Equal Access Act requires the Camdenton R-III School District to resources -- that GSAs with equal access to all school resources -- including online 471 F.3d at 912 (LGBTare made available to other non-curricular clubs. See SAGE, as related group must have "equal access to the same avenues of communication Letter to Superintendent Hadfield, Maj 24, 2011 Page other noncurriculum related groups") (emphasis in original). The websites for GSA Network, GLSEN, and Day of Silence provide students with advice about how to establish a GSA at their school, suggestions for running an effective club, ideas regarding club activities, sample GSA club by-laws, and tips on how to work with teachers and administrators to address bullying and harassment in schools, But because the "sexuality" filter blocks access to those websites, students who seek to form GSAs in the Caxndenton R-III School District cannot access those online resources. By contrast, students seeking to establish or develop activities for other non-curricular clubs such as the Key Club are able to access their clubs' web sites through the schools' computers. III. Additional Considerations Allowing students equal access to LGBT-related websites is not just a legal duty; it also makes sense from a safety perspective, particularly in light of the epidemic of LGBT youth suicides and bullying. Prohibiting access to LGBT websites is especially problematic because many students do not have computers or Internet access at home and can access the Internet only at school. As one court put it, "as any concerned parent would understand, this case {holding that members of the GayStraight Alliance must be permitted access to the school's resources in the same way as other dubs], may involve the protection of life itself." Co/in v. Orange Unified Sob. Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000). We wish to emphasize that unbiocking individual LGBT-related websites upon request is not an appropriate solution to this problem. It is unfair and burdensome to force students to seek special permission every time they wish to access a website that reflects LGBT-related viewpoints when, in contrast, students may freely access other viewpoints without seeking such permission. Such unequal burdens violate the Equal Access Act and the First Amendment. Moreover, in the particular context of LGBT-related websites, requiring students to make individualized requests is especially harmful and counterproductive because it would force some LGBT students to risk "outing" themselves by requesting that a website be unblocked. There is no reason why the burden should be placed on a vulnerable population to affirmatively request that school administrators unblock websites for LGBTresources that they already have a legal right to access. W Conclusion In alerting you to this problem, we do not mean to accuse the school district of acting with anirnus toward LGBT students. Our experience in the "Don't Filter Me" initiative has shown that the majority of school districts are simply trying to educate their students while complying with their legal obligation to block pornographic content pursuant to CIPA. But, regardless of the subjective motivations of school officials, the configuration of the district's filtering software censors virtually all 5 of 7 Le#er to Skpe'intendent Hadfield, Mqy 24,2011 Pa 6 of 7 LGBT-related speech and severely discriminates against viewpoints advocating for equal treatment of LGBT people. Carndenton R-III School District must configure its software in a manner that complies both with CIPA and with the First Amendment and Equal Access Act. There are two different ways that Camdenton R-III School District can bring its filtering software in compliance with its legal obligations. First, the school could simply stop filtering websites categorized as "sexuality" As noted above, once the sexuality filter is removed, the vast majority of sexually explicit or pornographic websites would continue to be blocked by the "adult" and "porn" flitets. To be sure, there is always a risk that an inappropriate website may slip through even the most comprehensive filtering system. In the unlikely event that a student accesses an inappropriate website, the school can step in to block the website at that time. Second, the school could use a different database as part of its web-filtering software that does not engage in illegal viewpoint discrimination. Other databases, do not categorize websites in a manner that singles out nonpornographic LGBT materials for special treatment. See http:/ (providing a list of databases to choose from). Whichever long-term solution Camdenton R-III School District adopts, the current status quo of blocking all "sexuality" websites is unacceptable. Please contact us by May 31, 2011, to indicate whether you intend deactivate the "sexuality" filter and restore students' access to the websites for GSA Network, GLSEN, Day of Silence, The Trevor Project and similar LGBT-related resources. If you continue to censor these websites, you could be subject to legal liability and the expense of litigation, as the boards of education and superintendents of two Tennessee school districts that used a similar type of filtering software recently discovered. Ultimately, after being sued by the ACLU, both Tennessee school districts agreed to enter into a settlement agreement enforceable by the federal district court to stop blocking access of online information about lesbian, gay, bisexual, and transgender issues. See Franks v. Metro. Bd. of Pib. Educ., No. 3:09- 00446 (M.D. Teem. 2009). Letter to Superintendent Hadfie/d, May 24, 2011 Sincerely, Anthony E. Rothert Legal Director Pa,ge 7 of 7

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