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)

ACLU ol Eastern Missouri
454 Whittier Street
St. Louis, MissourI 63108
314.652.3114
314,652.3112 (fax)

www,aciss-em.org
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 [phone]

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
/www.squidguard.org/bJaCkl15t5tmi

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"

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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. § 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

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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:/ fwwwsquidguard.org/blacklists.httnl (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

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