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Schools ban Declaration of Independence quote, opposition to gender identity policies: lawsuits

School district's ban on discussing issues "on which reasonable persons may disagree" would apply to football discussions, ex-administrator argues.

Published: August 22, 2022 4:54pm

Updated: August 23, 2022 1:35pm

Oregon educators took the state's flagship public university and a school district to court for squelching their views on equal treatment under the law and gender ideology.

Portland State University political scientist Bruce Gilley, who survived a discrimination investigation based on his academic work on colonialism, sued a University of Oregon official for blocking him from its official UO Equity account on Twitter.

A federal appeals court prohibited the same activity by then-President Trump when he blocked critics from his personal Twitter account, because he used it for "all manner of official purposes."

UO Division of Equity and Inclusion Communication Manager Tova Stabin often uses its Twitter account to ask readers how they can "interrupt racism" through the lens of "critical theory," according to Gilley's suit.

She wrote June 14: "It sounded like you just said______. Is that really what you meant?” Gilley responded the same day with a quote-retweet from the Declaration of Independence, "all men are created equal." He also tagged the UO Equity account. 

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Stabin quickly blocked his account, which not only prevents him from interacting with her official government tweets but also removed his tweet from the UO Equity account's timeline, according to the suit. Gilley's account was unblocked following the lawsuit, Luke Wachob, communications director for Gilley's lawyers at the Institute for Free Speech (IFS), told Just the News Tuesday.

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Gilley confirmed via public records request that the taxpayer-funded university has no written policy for blocking Twitter users. Whoever administers a given UO account "has the autonomy to manage the accounts and uses professional judgment when deciding to block users," the university said.

UO also confirmed the account blocked two other users who challenged Stabin's viewpoint. They had asked "[h]ow are these groups going to a secondary school if they can’t read, write, and do math?" and called diversity, equity and inclusion departments "Marxist poison [that] should be eliminated from every institution in America."

IFS, which recently secured a six-figure settlement with a Pennsylvania school district that censored viewpoints at board meetings, argued the UO Equity account is a "public forum" and Stabin is a "state actor" subject to First Amendment restraints.

The Office of the Vice President for Equity and Inclusion, which administers her division, gives her "uncabined autonomy" to make "subjective and viewpoint discriminatory blocking decisions" with no notice to users "as to what content posting may result in blocking."

The suit asks for a permanent injunction that would unblock Gilley's account and end viewpoint discrimination by the UO Equity account, including through the "professional judgment" leeway to block. As with the Pennsylvania settlement, IFS is asking for a symbolic $17.91 in damages for Gilley.

A federal judge denied IFS's motion for a temporary restraining order on procedural grounds last week. Wachob told Just the News that "there's been communication between the attorneys for both sides" but UO has not filed a response.

The university didn't respond to Just the News queries. 

"This is the perfect case to establish a precedent that says if you are a public agency you can’t pick and choose who is a member of the public," Gilley, whose latest book argues critics of German colonialism "empowered" Nazis and Communists, told The College Fix.

The Grants Pass School District filed a motion for summary judgment in the lawsuit by former Assistant Principal Rachel Damiano, who left the district in June and now goes by her married name Rachel Sager, and current science teacher Katie Medart. 

A majority of the board fired them a year ago for opposing a proposed gender identity-based bathroom and locker room and compelled use of preferred pronouns. One member flipped his vote months after they sued, reinstating the duo to their jobs.

The board members, who are being sued in their individual capacity for First Amendment retaliation, argue they have "legislative immunity" and no power apart from a majority board vote. 

The district claims the educators' speech led to "nearly 100 complaints" about their advocacy, protests by students and harm to "the working relationship among school staff and students." They would have been fired regardless of their views for "[n]umerous policy violations."

The core of the lawsuit is how and when school districts can regulate the private speech of educators. 

Damiano and Medart recorded and posted a 17-minute video about their "I Resolve" campaign against the proposed policies over spring break, not identifying the district or their positions. 

They also challenged a district policy that allegedly regulates their speech during "down time" on campus — an accusation the district didn't answer when Just the News asked a year ago. Sager told Just the News that the media request recently appeared in their legal discovery.

Pacific Justice Institute lawyer Ray Hacke, who is representing the educators, told Just the News they have fought the district "tooth and nail to get certain documents" over months of discovery. He's rushing to meet the court deadline for opposition to the motion for summary judgment.

The April 2021 policy prohibits employees from discussing "any political or civil issue ... on which reasonable persons may disagree" while on district premises or "acting within the scope of employment." Sager claims the policy would ban teachers from discussing "which college football team is best" during breaks.

Even when off-duty, employees must specify that their statements on "controversial issues" are not the district's. Medart has decided not to speak at all about the I Resolve campaign out of fear the district could punish her for speech "even in her private time," Sager said. 

The district's motion for summary judgment emphasizes the educators promoted their alternative proposals during school days, using their district email accounts, and "used their positions" to unblock the I Resolve website from the internet filter. Their video referred to Medart's transgender student, whose identity was deduced by viewers.

They created actual and potential disruption through their on- and off-campus activities by "advocating to reduce rights of transgender students," which "at least one individual defendant understood was discrimination in violation of federal law." 

These activities were political in nature "during the scope of their employment," the motion argues. The individual defendants deserve qualified immunity because no "reasonable official" would have believed firing them would violate the First Amendment.

The district didn't respond to Just the News queries about its motion for summary judgment and Sager's interpretation of the policy's scope.

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