Nebraska Judge Dismisses Transgender Graduate's Suit Over Shutdown of School Paper

A federal judge in Nebraska has dismissed a lawsuit brought against a school district that shut down a high school newspaper after it published several articles on LGBTQ+ topics.

U.S. District Judge John Gerrard did not rule on the claims against the district, but he said the student and the organization that filed the suit did not have legal standing, as they could not show how they were harmed by the district’s action.

Marcus Pennell, a transgender boy and contributor to the paper at Grand Island Northwest High School, and the Nebraska High School Press Association filed suit in March against Grand Island Northwest Public Schools, alleging violation of the First Amendment to the U.S. Constitution, which guarantees freedom of the press. They also alleged discrimination based on views published in the paper. They were represented by the American Civil Liberties Union of Nebraska.

The district shut down the Viking Saga student newspaper in the summer of 2022 after the publication of the LGBTQ-inclusive edition in June of that year, marking the end of the school year. Pennell had written an article for the edition on Florida’s “don’t say gay” law, which bans instruction on sexual orientation and gender identity in public schools.

Pennell graduated in May 2022, but he said he intended to maintain a relationship with the newspaper, contributing articles and mentoring students. But Gerrard wrote, “As a graduate, Pennell does not have a legally protected interest in the school’s course offerings, including the newspaper course.” Only current students and parents have standing to challenge schools’ policies, the judge said. Pennell’s standing “may have come down to just a matter of days,” Gerrard noted.

Also, Gerrard said, the school ran the paper not as a “public forum” but as a “supervised learning experience.” The school board and superintendent have authority over the curriculum of learning experiences, he wrote. He did caution, however, that “school administrators would be wise to remember that policies and decisions to restrict speech in student newspapers, even those operating as nonpublic forums, may run afoul of the First Amendment if they reflect ‘an effort to suppress expression merely because the public officials oppose a speaker’s view.’”

School board members had called the LGBTQ-inclusive issue a “revenge tactic” because students had not been allowed to use their chosen names and pronouns. Pennell said he had to use his deadname.

The high school has now revived the publication in digital form.

Rose Godinez, legal director for the Nebraska ACLU, told the Nebraska Examiner she disagreed with Gerrard’s ruling. The case, she said, came down to this: “Students wrote about LGBTQ+ topics, then the school shut down their paper.”

“However, we appreciate the order emphasizing that this decision is solely related to standing rather than school officials’ conduct,” she added. “Likewise, we welcome its general warning to school administrators on restricting speech in student newspapers.”

The ACLU could file an amended suit or appeal Gerrard’s ruling. The lawyers are discussing various options with their clients, Godinez said.

“Nothing about this turn of events changes our commitment to ensuring that LGBTQ+ students can learn free of discriminatory retaliation in our schools,” she said.

Pictured: Marcus Pennell