United States District Court. This case arises from the Consent Decree entered into by the parties in the Boyd County High School GSA litigation, which requires the Board of Education to conduct mandatory anti-harassment training for all middle and high school students, faculty, and staff. As part of its settlement of the GSA litigation, the Board also amended its policies to make explicit that harassment or discrimination based upon actual or perceived gender identity or sexual orientation is not permitted.

In February 2005, the Alliance Defense Fund (ADF), a national conservative Christian legal organization, filed a lawsuit on behalf of several students and parents who allege that Boyd County’s anti-harassment policies and mandatory student trainings violate their First Amendment rights. Specifically, ADF objected to the fact that the anti-harassment policies, and portions of the training video, seem to prohibit students from making statements critical of homosexuality. ADF also has argued that the anti-harassment training violates the religious freedom and parental rights of the plaintiffs because the training forces students to listen to ideas about sexual orientation that are contradicted by their religious beliefs.

The ACLU of Kentucky, in conjunction with the national ACLU Lesbian and Gay Rights Project, has intervened on behalf of students who were parties to the original Consent Decree, as well as the parent of a current Boyd County student who wants to preserve the anti-harassment trainings and policies, which she believes are essential to ensure a safe educational environment for all students.

The ACLU shares some of ADF’s concerns about the language of the Board’s harassment policies, which were drafted without any input from the ACLU. ADF filed a motion for a preliminary injunction that seeks to prevent Boyd County from enforcing parts of its anti-harassment policy and asks the Court to rule that students and parents have a right to opt out of the anti-harassment training.

The ACLU has filed a response that reflects our commitment to both the First Amendment’s guarantees of free speech and religious freedom, as well as the Fourteenth Amendment’s guarantee of equal protection of the law for all students, irrespective of sexual orientation or gender identity. Specifically, the ACLU has agreed with ADF that certain elements of the Board’s policies chill constitutionally protected speech, including anti-gay speech, in violation of the First Amendment. However, the ACLU has joined the Board of Education in disputing ADF’s contention that students and parents have the right to “opt out” of elements of the curriculum with which they may disagree on religious grounds.

While the ACLU defends the rights of parents to direct their children’s education by sending them to religious schools, the Constitution also prohibits public schools from tailoring the curriculum to a particular religion.

Some of these issues may be resolved through mediation, but other pieces may need to be resolved by the court.