According to an article from website Wired, public High Schools in the Tennessee area are filtering out access to sites like the Human Rights Campaign, the Gay & Lesbian Alliance Against Defamation (GLAAD), and the Lesbian Straight Education Network, amongst many more, whilst allowing sites purporting to cure gays through their filter. Is this a clear breach of the First Amendment as one campaign group is claiming?
The debate over what is taught in public schools as regards to sexuality has always been a contentious one. One side argues that High School children should be taught frankly about all forms of sexuality when it comes to both heterosexual and LGBT relationships, whilst others, with a somewhat valid argument, might say that there is no place for sexuality in schools, be it homosexual or heterosexual, beyond the bounds of biology.
There are merits to both arguments and issues raised in the adoption of both as well. However, the American Civil Liberties Union (ACLU), the group who raised this issue about Knox County Schools, Metro Nashville and Tennessee Public schools censoring LGBT sites, are saying that, far from this being a problem about teaching sexuality, the schools are actively censoring against helpful recourses for adolescents who, through their own initiative, wish to find out about LGBT issues or find support, but, at the same time, those schools are allowing “reparative therapy” campaigns such as the Exodus program, through their internet filters, and, in so doing, the ACLU claim the schools are violating the First Amendment and acting in a clearly discriminatory manner.
The school districts have passed the buck, saying that it is the internet filtering company who, under the Children’s Internet Protection Act, are responsible for defining and then filtering “harmful” websites, whilst the company owning the internet filtering software, the Education Network of America (ENA) have said that blocking and unblocking websites is a ball firmly in the schools court, and that the ENA duly block or allow sites that are given to them for review by the schools, though, according to the ACLU, the ENA software provided to schools blocks LGBT themed websites by default (it categorizes LGBT adult sites under the pornography category and therefore the two are quite distinct).
On its website the ACLU claim that up to 107 Tennessee schools may be “illegally preventing students from accessing online information about lesbian, gay, bisexual and transgender issues”.
“Students at Knox County and Metro Nashville schools are being denied access to content that is protected speech under the First Amendment as well as the Tennessee state constitution,” Staff Attorney Tricia Herzfield of the ACLU for the Tennessee district said.
The ACLU claim that it would not be so bad had the Tennessee school districts in question used a blanket approach to all things relating to LGBT issues on the internet, but as it is, they are offering up information on “gay-cures” that many health professionals find at best unsound, and at worst perhaps even dangerous.
The filter also restricts websites for same-sex marriage, even for faith based sites who find same-sex marriage acceptable, but does not block sites such as the American Family Association who actively campaign against same-sex marriage. This, the ACLU say, yet again gives students only one side of the story, and in so doing may harm a child’s education, and furthermore potentially violates the duty that the school districts have to offer school children, especially of High School age, a chance at an informed education.
Of course, there are those of a differing view-point. The First Amendment states:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
One interpretation of the First Amendment against this issue could be that schools are free to filter as they please until a federal mandate expressly telling them not to filter against LGBT websites is issued, and that this is not a violation of the First Amendment at all because schools are not attributable to Congress (though they do, obviously, receive funding from Federal sources).
However, the Fourteenth Amendment, Section 1, states:
No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States.
The filtering law in Tennessee (Tenn. Code § 49-1-221) requires that schools implement software to filter and restrict access to sites that are “obscene or harmful” to minors. It seems a bit of a stretch that, in a High School, sites such as the Human Rights Campaign and GLAAD are restricted. One might argue that they should not be readily promoted, but to actively screen them seems spurious. Even if it isn’t a violation of the First Amendment as the ACLU are alleging in this letter to the Tennessee school districts in question, and, indeed, are threatening to sue over, it does seem that this filtering policy is, at the very least, arbitrary and discriminatory when coupled with the Fourteenth Amendment’s mandate.
Finally, to clarify the kind of material being blocked, the ACLU has a comment from a student at one of the school districts in question, Andrew Emmit of Central High School in Knoxville, aged 17: “When I found out about this web filtering software, I wasn’t looking for anything sexual or inappropriate – I was looking for information about scholarships for LGBT students, and I couldn’t get to it because of this.”
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