ASHLAND, Ky. — Following yesterday’s jailing of a county clerk for stating that it is not possible for her to obey an order to issue marriage licenses to homosexuals against God’s law, it is now being noted that the same federal judge also once ordered Kentucky students to be re-educated about homosexuality despite their objections.
In 2003, the American Civil Liberties Union (ACLU)—the same group that filed suit against Rowan County Clerk Kim Davis—sued the Boyd County Board of Education to force it to agree to allow a “gay-straight” alliance club to meet at Boyd County High School. A number of parents had strongly opposed the group following its initial formation, with approximately 70 attending a school council meeting to speak out on the matter.
The school board temporarily suspended the meeting of all student groups due to controversy over the matter, but the Bible and drama clubs allegedly continued to meet despite the ban. Students with the alliance subsequently contacted the ACLU, which filed suit over the matter.
Bunning then ordered Boyd County education officials to allow the alliance to meet on campus, declaring that they must be granted the same privileges as other groups, including using the intercom during school hours.
“Absent a preliminary injunction, plaintiffs will be unable to meet at school, unable to benefit from a forum for discussion with other students who are suffering the effects of harassment based on sexual orientation, and unable to work with other students to foster tolerance among all students,” he wrote.
But Bunning also required the school district to implement training as part of a settlement, which mandated school staff and students to undergo diversity education, “a significant portion of which would be devoted to issues of sexual orientation and gender harassment.”
However, a number of students objected to being forced to watch a video that asserted that it is wrong to oppose homosexuality and that a person’s sexuality cannot be changed. They discovered that they could not opt-out of the training without being penalized, and contacted the legal organization Alliance Defending Freedom (ADF) for assistance.
ADF then sued the Boyd County Board of Education over the matter on behalf of student Timothy Morrison and his parents, who said that the re-education requirement “effectively forces the students to speak in agreement with the school district’s view that homosexuality is a safe and healthy lifestyle that cannot be changed.”
But in 2006, Bunning again ruled that the students must watch the video and could not opt-out because of their Christian identity, stating that the education “rationally related to a legitimate educational goal, namely to maintain a safe environment.” He said that the training wouldn’t mean that students would have to change their religious beliefs, therefore, an opt-out was unnecessary.
“Plaintiffs are not requesting that a student absent from the training be considered an ‘excused’ or that the Board offer an alternate assignment on the issue of diversity. Rather, they seek to opt-out of the training altogether,” Bunning wrote.
“Given the requirements of the consent decree, the Board cannot meet this demand. Moreover, as there is no burden on plaintiffs’ freedom of speech, free exercise or other constitutional right, there is simply no basis for an opt-out,” he said.
Bunning pointed to a First Circuit ruling in making his decision.
“We think it is fundamentally different for the state to say to a parent, ‘You can’t teach your child German or send him to a parochial school,’ than for the parent to say to the state, ‘You can’t teach my child subjects that are morally offensive to me,'” the noted ruling stated.
“If all parents had a fundamental constitutional right to dictate individually what the schools teach their children, the schools would be forced to cater a curriculum for each student whose parents had genuine moral disagreements with the school’s choice of subject matter,” it reasoned.
Bunning’s decision was then appealed to the Sixth Circuit Court of Appeals, which overturned his ruling in October 2007 and sided with Morrison. It stated that the student could seek damages from the school district because the policy and training “chilled” his ability to express his Christian beliefs about homosexuality to his fellow students.
“Although a favorable decision cannot provide Morrison an opportunity to travel back in time and utter the speech he withheld, it can provide him with nominal damages,” the three-judge panel ruled in the 2-1 decision. “Even though these damages amount to little, they serve to vindicate his rights.”
