by Eric Resnick

Cincinnati--Where does the right of lesbian, gay, bisexual and transgender students to be protected from harassment cross the right of religious students to express their views on homosexuality?

That is the nexus of the dispute heard by the U.S. Sixth Circuit Court of Appeals last week.

The case resulted from a federal judge?s 2004 order to the Boyd County, Kentucky public schools to create a policy against harassment of gay and lesbian students, and include it in faculty and staff training.

That ruling resulted from a finding of widespread abuse of gay and lesbian students, including in an English class where one student said, ?take all the fucking faggots out in the back woods and kill them.?

The issue surfaced in Boyd County, across the river from the southern tip of Ohio, after a group of students sued for the right to form a gay-straight alliance at Boyd County High School in Ashland, Ky. in 2002.

That suit was settled in favor of the GSA and the anti-harassment policy, which required attendance at a training session.

The school system was immediately sued by the Alliance Defense Fund of Scottsdale, Arizona, who stated that the policy violated religious students? free speech.

ADF has funded anti-gay litigation throughout the country, including Ohio, where they have paid for State Rep. Tom Brinkman?s attempt to stop Miami University?s domestic partner benefits and an unsuccessful 2004 case against the Cleveland Heights domestic partner registry.

The trial court agreed with students Timothy Morrison, Mary Morrison, Debora Jones, and Brian Nolen. ADF appealed to the three judge panel.

Hearing the case were judges Karen Nelson Moore, a Bill Clinton appointee, former Ohio Supreme Court justice Deborah Cook, who was appointed to the circuit by George W. Bush, and district judge John Adams of the Northern Ohio District sitting by designation. Moore presided.

As an Ohio justice, Cook wrote the unanimous opinion ruling Ohio?s ?importuning? law unconstitutional in 2002, and later that year, was the lone dissenter in In re: Bonfield, which ruled that courts have the authority to accept shared parenting plans of gay and lesbian parents. Cook sided against the parents.

ADF?s senior attorney Joel Oster argued on their behalf. The students were represented by ACLU attorney Sharon McGowan. The school district was represented by Winter R. Huff of Somerset, Kentucky. The school system and the students are on the same side of the issue.

In post-hearing press events, McGowan said, ?We?ve always believed that it?s entirely possible for schools to enact policies that keep gay and lesbian students safe while still respecting the First Amendment rights of students who hold anti-gay beliefs.?

?There?s a huge difference between telling students that they shouldn?t harass or attack others and censorship,? McGowan continued. ?Schools have a constitutional obligation to respect all students? right to be and express themselves.?

Oster said, ?Student speech doesn?t become second-class speech when the government disapproves.?

?Silencing students because of their viewpoint is a blatant violation of their constitutional rights,? continued Oster. ?Defending the constitutionally protected free speech rights of Christians benefits all students.?

The Sixth Circuit includes Ohio, Michigan, Kentucky, and Tennessee. The decision will be binding on courts in the circuit.