Judge dismisses lawsuit alleging Nebraska high school shuttered paper over LGBTQ content

LINCOLN, Neb. (Nebraska Examiner) — A federal judge dismissed a First Amendment lawsuit Monday alleging a Grand Island high school shuttered its student newspaper because its staff covered LGBTQ+ topics.

Senior U.S. District Judge John Gerrard dismissed the lawsuit stating that Marcus Pennell, a graduate of Grand Island Northwest High School, and the Nebraska High School Press Association did not have standing, or specific injury, related to the school’s actions.

In March, the ACLU of Nebraska sued the school and district superintendent on behalf of Pennell and the Nebraska High School Press Association, alleging the school shut down the Viking Saga paper days after going to print in June 2022 because it included multiple articles on LGBTQ issues.

One article by Pennell, who is transgender, addressed the Florida Parental Rights in Education Act, or so-called “Don’t Say Gay” law. 

School officials argued the decision to shut down the paper was unrelated to its content. The paper has since been restarted online with a new adviser.

School board members, in internal emails obtained by the ACLU, addressed the content and described the June 2022 publication as a “revenge tactic” because the school did not allow students to use their preferred pronouns or chosen names in author bylines.

Gerrard stated that Pennell’s graduation in May 2022 was a “critical fact” in determining whether he could prove injury because of school officials’ actions. Pennell’s ability to seek remedy “may have come down to just a matter of days,” Gerrard added.

“Thus, 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,’” Gerrard wrote.

The judge also ruled that Pennell and the Nebraska High School Press Association were not “willing speakers” able to contribute to the paper. Instead, they were “willing listeners” who could not credibly allege they would have spoken if the paper had not been shut down.

Gerrard said the paper’s former adviser, who was not part of the original lawsuit, also could not bring a similar claim.

Rose Godinez, legal director of the Nebraska ACLU, said the ACLU respectfully disagrees with the ruling and said the case is simple: “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,” Godinez said in a statement. “Likewise, we welcome its general warning to school administrators on restricting speech in student newspapers.”

Gerrard’s ruling opens the door for the ACLU to refile the lawsuit with altered claims or appeal the decision. Godinez said the ACLU will discuss the order with its clients. 

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

Grand Island Northwest Public Schools did not immediately respond to a request for comment.

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