United States District Court

This matter originated as a case in which the ACLU represented students who wished to form a Gay-Straight Alliance group at their school.  Although the school originally denied their request, the school's Site Based Decision Making Council allowed the students to form a GSA after the ACLU of Kentucky intervened.  The Boyd Co. Board of Education, however, overruled the SBDM's decision and as a result, the ACLU of Ky. sued on behalf of the students in cooperation with the national ACLU LGBT Project.

U.S. District Judge David Bunning issued a preliminary injunction that ordered that the GSA be recognized and given equal status with other student organizations.  The parties eventually reached an agreement whereby the Board agreed to recognize the GSA, to treat them as any other student organization, and to implement a district-wide anti-harassment and tolerance program that would be mandatory for all middle and high school students, faculty and staff.  Despite the ACLU's offer of assistance in writing the anti-harassment program, the Boyd Co. Board of Education elected to develop the program without ACLU involvement.

The Board's anti-harassment program resulted in a lawsuit by the Alliance Defense Fund.  In its challenge, ADF argued that: (a) the content of the training program violated the First Amendment, in that the program prohibited individuals from expressing disagreement or criticisms of homosexuality, and (b) the mandatory attendance provision of the program violated the right to the free exercise of religion because the content of the training contradicted its clients' religious beliefs.  The ACLU agreed with ADF's first argument that the training program violated the free speech rights of some students but disagreed with the contention that mandatory attendance at the training would violate the students' rights to the free exercise of religion.  Judge Bunning avoided issuing a ruling on the free speech issue because the parties agreed to re-write those portions of the program which infringed upon free speech.  Judge Bunning did decide, however, that the mandatory attendance requirement of the program did not violate the free exercise of religion clause of the First Amendment.

ADF appealed and on July 25, 2007, the Sixth Circuit Court of Appeals considered whether Judge Bunning's erred in failing to consider the constitutionality of the original anti-harassment program.  The ACLU sided with ADF in arguing that the fact that the plaintiff self-censored his anti-homosexual views constituted a sufficient injury to require the judge to consider the constitutionality of the program despite the fact that it was no longer in effect.

On October 26, 2007, a three-judge panel of the Sixth Circuit Court of Appeals agreed with the ACLU and found that the District Judge should have examined the constitutionality of the original program.  In an unusual twist, however, one of the two judges who initially agreed with the ACLU reversed himself and on April 9, 2008, the same three-judge panel reached the opposite conclusion and ordered that the case be dismissed (finding that because the original anti-harassment program is no longer in use, the case should be dismissed).  On April 22, 2008, both the ACLU and ADF filed motions requesting that the entire Sixth Circuit Court of Appeals (currently 14 judges) reconsider the ruling.