Lawsuit raises questions of free speech, inclusion in Marshall

Updated: June 28, 12:01 p.m. | Posted: June 18, 6:46 p.m.

A group of residents in the western Minnesota city of Marshall are suing the local school district in response to an incident last year that centered on a student’s opposition to a Pride flag.

A group of religious leaders and parents called Marshall Concerned Citizens filed the lawsuit in April, alleging that the school district violated a student’s free speech rights by confiscating the student’s petition to remove an LGBTQ Pride flag from an inclusivity display in a middle school cafeteria.

The flag was part of a January 2020 display representing students’ diverse backgrounds, as part of an inclusivity project created by principal Mary Kay Thomas.

The Concerned Citizens group is arguing that, by disciplining the student for circulating the petition to remove the Pride flag, the district violated the student’s right to free speech.

“We’re seeking a broad ruling statewide,” said Erick Kaardal, an attorney who is representing the plaintiffs in the case, as a member of the Thomas More Society, a conservative Catholic nonprofit law firm. “Minnesota’s public schools regarding non-curriculum material need to be viewpoint neutral and need to have administrative procedures to avoid unbridled administrative discretion.”

Trevor Helmer, an attorney representing the Marshall school district, declined to comment on the case, but said in an emailed statement that the school district believes it was in the right.

“The district has at all times complied with the laws applicable to schools and takes the constitutional rights of its students seriously,” Helmers said in an emailed statement.

The Marshall community has been embroiled in the controversy since early last year. People showed up in droves to a series of school board meetings after the incident, some echoing the plaintiffs’ argument about wanting the district to adopt “viewpoint neutral” policies.

Other community members — including parents of students who are part of the LGBTQ community — said at the meetings that they felt the lawsuit is an attempt to discriminate against their children.

“This lawsuit is permission from these folks to be exclusionary toward LGBTQ+ folks,” Julie Walker, who identifies as queer and has children in the district who are members of the schools’ LGBTQ community, said in April. “And you can dress it up however you want to. But, at its core, that is the issue here.”

Neither the parent of the student named in the lawsuit nor the leader of Marshall Concerned Citizens group responded to a request for comment.

Last June, the school board issued a resolution saying that the district alone would have the authority to determine whether flags could be flown in the cafeteria.

“The district has the right to determine the academic curriculum for its students,” the resolution said. “The district is fully compliant with state and federal laws and does not need a policy on what governmental speech it will make or the flags or signs that it chooses to display in its schools, contrary to claims being made in the community.”

‘A microcosm’

Legal experts say school administrators have broad discretion within the law when it comes to being able to display flags or symbols in school buildings. Supreme Court cases have determined that, while students do have constitutional rights in school, schools also have the ability to determine what constitutes acceptable speech in the school environment.

Some legal experts say that this type of lawsuit, which challenges a school’s ability to set the standards of accepted speech, is becoming more common. Similar cases are popping up across the country, said David Schultz, a law professor at the University of Minnesota. These lawsuits, he said, can serve as a mirror to the larger cultural debates happening in society.

“This case really gives us a microcosm of the basic debates that our society is fighting over about the limits of free speech rights, about equal protection, about the obligations of the government, to include respect for diverse viewpoints, as well as for equal protection for everybody,” Schultz said.

In some cases, he said, members of marginalized groups seek protection from discrimination outlined in the Equal Protection Clause. In others, he said, groups that oppose LGBTQ rights bring cases focused on free speech or religious rights. Schultz said it’s likely that similar cases might become more frequent and common.

“When we’re looking at a situation where the Supreme Court looks like it has a conservative majority, especially a majority that seems very sympathetic to freedom of religion arguments, they may be viewing this as a great opportunity to bring cases like this,” Schultz said.

The Marshall case, Schultz said, highlights the balance that the courts are grappling with — when basic rights are being viewed as political issues surrounding free speech or freedom of religion.

According to court documents, no hearing dates have been set for the Marshall schools case. The Concerned Citizens group is seeking a jury trial.

Correction (June 28, 2021): An earlier version of this story misidentified the principal of the Marshall Middle School. Her name is Mary Kay Thomas. The story has been updated.