The Gay Agenda on Trial: Glowacki v. Howell Public School District

Last year, Michigan high school teacher Jay McDowell kicked a student out of his classroom, for what the teacher described as disruptive behavior. Normally, the rest of the world would never have heard of this event; kids get kicked out of classrooms for being disruptive every day, and very rarely does it make headlines. McDowell, however, kicked a kid out of his classroom after the student, Daniel Glowacki, made statements to the effect that he found gay rights offensive, and that he would not accept gay individuals.

This was immediately seized upon as evidence of the homosexual agenda in action, with opponents of McDowell touting it as proof that “gay rights” are trampling religious freedoms across the land. McDowell’s defenders, on the other hand, described his decision to remove the student as appropriate, believing that the student’s behavior was disruptive and hostile to other students. The school board initially chose to suspend McDowell for one day without pay as a result of the incident, but later reversed its decision.

The matter had died away after that. Until last Friday, when the student’s mother, represented by the Thomas More Legal Center, a “public interest law firm dedicated to the defense and promotion of the religious freedom of Christians”, filed suit against McDowell and the school district over the incident, alleging that her sons’ Constitutional rights were violated. A copy of the complaint can be found here.

The purpose of the suit isn’t the plaintiff’s material gain, but rather a chance to get a court order prohibiting public schools from restricting students’ rights to make anti-gay statements while at school. Richard Thompson, president of the Thomas More Law Center, had stated that the purpose of the litigation is to defend “religious opposition to homosexuality”:

“This case points out the outrageous way in which homosexual activists have turned our public schools into indoctrination centers,” said Thompson. He said by utilizing the tyranny of political correctness, homosexual activists “are seeking to eradicate all religious and moral opposition to their agenda.”

Despite the media coverage surrounding the case, however, the plaintiff in Glowacki v. Howell Public School District is not actually asserting any claims based directly upon freedom of religion. Rather than invoking the Free Exercise Clause, the plaintiff is instead alleging (1) that the defendants deprived students of their First Amendment rights to free speech by punishing Glowacki for expressing his refusal to accept homosexuality, and (2) that the Defendants violated the Equal Protection Clause of the Fourteenth Amendment “[b]y favoring speech that approves of and promotes homosexuality over Plaintiffs’ religious speech.” (The EPC claim is based on an infringement of Glowacki’s fundamental Free Speech rights rather than his group membership, as “people who have a religious viewpoint critical of homosexuality” is not a class that can invoke the court’s heightened scrutiny.)

The reason Glowacki’s case is a free speech case and not a free exercise case is obvious: his claims are far more compelling when brought under the rubric of free speech than they are when presented as religious freedom claims. In places, the Complaint does in fact invoke the specter of religious freedom as support of his claim for relief, but they are the weakest portions of Glowacki’s pleading. In short, Glowacki’s case, to the extent that it is based on religious freedoms, is that, as a Catholic, he has “a duty and obligation to defend [his] faith in public, including a duty to speak the truth about homosexuality” (Complaint, at para. 46) — that ‘truth’ being that “homosexual acts [are] acts of grave depravity, [and] that homosexual acts are intrinsically disordered” (Complaint, at para. 45).

But this is not a “duty and obligation” that the Constitution recognizes. There is no special Constitutional protection for a religious belief that “compels” you to affirm your disapproval of your fellow classmates every time the subject of their identity is mentioned. For instance, someone who claimed his religious beliefs compelled him to believe that Jews deserved to be exterminated would not thereby acquire a right to announce such a belief every time the subject of the Holocaust came up in class.

And so Glowacki focuses on free speech, not free exercise. But although Glowacki’s free speech claims are legitimate under the facts he has alleged, his Complaint is still pretty appalling in many respects. For instance, it describes the school district’s anti-bullying campaign as “a day in which activists exploit the tragic suicidal deaths of homosexual teenagers to promote acceptance of homosexuality in the public schools.” (Complaint, at 26). It also refers to the “pro-gay agenda” seven times, and comes off sounding rather paranoid in the process. Worse still, it repeatedly describes the suicides of kids who were bullied due to their perceived sexual orientation as “teenagers who committed suicide because they were homosexual. ” (Id., at 39). The Complaint continues to win itself no favors when it alleges that “the purpose of the ‘anti-bullying day'” is “to shift the blame for the destructive lifestyle of homosexuals to those who believe it is wrong and immoral”. In other words: gay students deserve to be harassed, and any harassment they receive due to their sexual orientation is their own fault for being gay.

But as unpalatable as the Complaint is, assuming everything it says as true, Glowacki likely does have a case. That is a pretty big assumption to start from, however; although both Glowacki and McDowell do seem to agree on some of the central facts in the dispute, the parties are diametrically opposed as to what the general tone of the exchange was, or what the intentions of the parties were. And here, the tone of the exchange is everything.

Rather than breaking new legal territory, I expect this will ultimately be a heavily fact-based case. Comparing the claims of the two sides, however, gives an indication as to where this suit is headed:

Plaintiff Glowacki’s Story:

47. On October 20, 2010, during his sixth hour economic class in which Plaintiff D.K.G. was a student, Defendant McDowell explained to the students that it was the national “anti-bullying” day and that the students were going to watch a movie about teenagers who committed suicide because they were homosexual.
48. At the beginning of the instruction and in front of the entire class, Defendant McDowell confronted a female student who was wearing a Confederate flag belt buckle. Defendant McDowell directed the student to remove the article of clothing because he considered it offensive. The female student had worn this belt and buckle to class on several prior occasions without receiving a reprimand.
49. In light of Defendant McDowell’s opening remarks to the student about “antibullying” day and tolerance, Plaintiff D.K.G. raised his hand and asked Defendant McDowell why it was permissible to display a rainbow flag, which is offensive to some people, but not a Confederate flag, which Defendant McDowell found offensive.
50. Offended by the question, Defendant McDowell curtly responded by stating that the rainbow flag represents the gay community, but the Confederate flag “represents killing people and hanging and skinning people alive,” or words to that effect.
51. Defendant McDowell then asked Plaintiff D.K.G. whether he “supported” or “accepted gays,” or words to that effect. Plaintiff D.K.G. responded by stating that his religion does not accept homosexuality and that he could not condone that behavior. Angered by the response, Defendant McDowell told Plaintiff D.K.G. that his religion was “wrong,” or words to that effect, and ordered Plaintiff D.K.G. to leave his classroom under threat of suspension.
52. After ordering Plaintiff D.K.G. to leave the classroom, Defendant McDowell asked the remainder of the class whether anyone else did not accept homosexuality. A student raised his hand, and Defendant McDowell ordered him out of the classroom as well.

Defendant McDowell’s Story:

At the beginning of my 6th hour students asked what the “Tyler’s Army” t-shirts were about. This led to the beginning of a discussion about anti-bullying. It was a discussion about not bullying anyone due to race, ethnicity, gender, sexual orientation, or social status. One female student entered the class wearing a Confederate Flag belt buckle. This student knows that I have not allowed Confederate Flags in my class. She sits in the front row. I asked her to remove the belt buckle and she did so without incident. At this point, a male student raised his hand and asked why she had to remove the belt buckle. I explained that the Confederate Flag is often seen as a symbol of discrimination. The student then said “well Gays get to fly their rainbow flag.” This was a disruption to the classroom environment. I explained the rainbow flag is not a part of the discussion and that it hasn’t been associated with lynchings, mob violence, or discrimination in the way that the Confederate Flag has been. The student then said, “I don’t accept Gays.” Obviously this was an inappropriate thing to blurt out in class and had no place in the discussion. I told him he could not say that in class that it was inappropriate. He asked, “Why? I don’t accept Gays. It is against my religion. I am Catholic.” I said that was fine it was against his religion but that that statement was inappropriate to say in class. I became concerned at this time as there were students in the class that his comment would affect in an adverse way. There were at least ten students in the class wearing purple on that day. I related the situation to discrimination against African-Americans. I explained to the class that just as you can’t say, “I don’t accept blacks” in class you can’t say “I don’t accept Gays” in class. You can have whatever religious beliefs you want but there are statements that are inappropriate to say in class. I suspended him from class that day and wrote up a referral for unacceptable behavior. Another male student walked in at that moment and said loudly, “well I don’t accept Gays either can I leave.” I said, “yes get out.” Both students were insubordinate in class and caused a disruption of the class.

The accounts do overlap, but the differences between them are determinative. Under Glowacki’s version of the facts, he wins. Under McDowell’s version, he was in the right. So whose story is true?

It is not clear one way or another, at this stage of the proceedings. However — and while I am aware that my biases are now shining through bright and clear here — I have severe doubts about Glowacki’s ability to prove his version of events. Glowacki’s story just doesn’t pass the smell test: a kid that that speaks up to defend a classmate’s prerogative to display the Confederate flag in class is not a kid that then will follow up by opposing gay rights by demurely stating that “he could not condone that behavior.” In fact, the Complaint completely dodges away from identifying the actual language used by Glowacki in the exchange, leaving the student’s own words vague and unspecified. But note that the Complaint portray McDowell’s words as if they were direct quotes — only to then hide behind the disclaimer that McDowell’s statement might actually have just been “words to that effect,” rather than the actual words used. Meanwhile, the Complaint only paraphrases Glowacki’s own statements, thereby framing him in as inoffensive a manner as possible.

Although I do think it seems likely that McDowell overreacted in dismissing Glowacki from the classroom, my bet is that Glowacki was in fact being disruptive at the time, and was not merely expressing his religious views in a respectful fashion. It was Glowacki, remember, that initiated the exchange when he, unprompted, decided to equate a gay rights symbol with the Confederate flag. As a native Georgian, I am well aware that individual perceptions of the stars and bars can and do vary, but even the most charitable part of me is very skeptical that there is an innocent justification for a kid from Michigan to be defending the right to display the Confederate flag. Moreover, Confederate flags were not a neutral symbol to this student body — a year prior, a group of students at Howell had used school computers to create a racist facebook group that used a confederate flag as its icon:

The group’s Web page displayed an image of the Confederate flag along with this message:

“If you hate a certain type of anybody black, white, pink, yellow or polka dot (you) should join. This shows you are a rebel and proud of it.”

Given this background, I’d say Glowacki’s got an uphill battle in proving that his statements were as innocent and non-disruptive as he claims.

And the precise words Glowacki used — and the tone in which he said them — matters here, a lot. For instance, several unsubstantiated reports about the incident have stated that other students in the class reported Glowacki saying “those faggots” during the course of the exchange. The reports state that these statements were made only to classmates, however. But if, for example, McDowell had actually heard a student make statements to that effect, then the case would be open and shut. McDowell would have been on firm ground in removing Glowacki from the classroom, as schools are permitted to suppress vulgar and obscene speech, which “those faggots” would very arguably fall under. See Bethel School District v. Fraser (1986).

But assuming vulgar language was not used, the most obviously applicable precedent to this case is the Supreme Court’s decision in Morse v. Frederick (2007), a.k.a. the “bong hits 4 jesus” case. In Morse, the school was found to have a compelling interest in suppressing student speech that promoted illegal drug use. In Glowacki, the school could argue instead that its compelling interest was in suppressing speech that promotes bullying — a particular pertinent interest, given the recent attention bullying and teen suicide have received in the media in the past few years.

And discouraging bullying based on sexual orientation has already been found to be not just a compelling interest for school officials, but rather an affirmative obligation. In Flores v. Morgan Hill (2003), the 9th Circuit found that school officials were liable for failing to make any attempt to prevent persistent bullying of students that were perceived by their peers to be gay — and moreover, those school officials were not entitled to qualified immunity. Glowacki’s legal arguments, if correct, would therefore put public schools between a rock and a hard place; they would be required to protect students not only from the anti-gay animus of their classmates, but would also be required to protect students’ rights to express anti-gay animus in class.

Due to the similarities in the school official’s interests in both cases, Morse would seem to be highly determinative when it comes to Glowacki’s case. Re-wording Alito’s concurrence in Morse to change the compelling interest from discouraging drug use to discouraging bullying, you get a straight-forward defense of McDowell’s actions:

[D]ue to the special features of the school environment, school officials must have greater authority to intervene before speech [that declares gays to be “unacceptable”] leads to violence [and bullying]. And, in most cases, Tinker‘s “substantial disruption” standard permits school officials to step in before actual violence erupts.

Speech advocating [the ostracizing and disapproval of gay students] poses a threat to student safety that is just as serious, if not always as immediately obvious…. I therefore conclude that the public schools may ban speech advocating [anti-gay animus, in a disruptive fashion]. But I regard such regulation as standing at the far reaches of what the First Amendment permits

This is not to say that any speech that is pro-drug or anti-gay can be suppressed under the Morse framework; a paper advocating legalization of marijuana or arguing that Catholicism does not condone non-procreative sex could not be prohibited due to safety concerns.

This is why Glowacki v. McDowell will ultimately be decided on the facts, not the law. If Glowacki was being belligerent and hostile when he declared that gay rights were offensive to him, McDowell was justified in eventually removing him from the classroom under Morse when he continued to state that “I do not accept gays.” If instead Glowacki’s expression of religious belief was made in a non-disruptive manner, and particularly if his statement was made in response to a direct question from the teacher soliciting his views, then Glowacki should prevail.

So facts are everything, here. But luckily, as this all took place in a classroom, there should at least be quite a few eye-witnesses available to testify. I hope the Thomas More Law Center is looking forward to deposing a couple dozen teenagers — I bet that will be just loads of fun.

-Susan

5 thoughts on “The Gay Agenda on Trial: Glowacki v. Howell Public School District

  1. The militant anti-gay ignorance you note in the Complaint is a tip-off to the main reason the Thomas More Law Center’s attorneys are representing the Glowackis. For your reading pleasure, go look at TMLC’s 909 tax returns. The “Center” is publicly supported, and the two lead attorneys are generously compensated — in fact, apparently far more than they usually are awarded by the courts in any given year. And, they are trumpeting their representation of the Glowackis all over the place and often in very close proximity to where the clickable “Donate” button is found.

    I see a chance that a Motion to Dismiss would be granted. I have filed and published a Complaint with the Attorney Grievance Commission because the language defamatory of all homosexuals in the Glowacki pleading subverts the dignity of the Court and appears to violate the Code of Conduct and the Rules of Civil Procedure.

    McDowell is accountable for enforcing the terms of the school’s anti-bullying code; Any violation of that code is by definition a disruption in the classroom. Glowacki by his own admission violated that anti-bullying code. It should not be ignored that nobody in the classroom was creating a hostile environment for Glowacki. Nobody said “I do not accept ignorant throwback Catholics.” The phrase “I don’t accept gays” appears to violate many points of the school’s anti-bullying policy. Tone does not matter, necessarily, because no matter what tone that phrase is issued with, it is toxic to the learning environment. In a school community where there is evident bullying non-acceptance of gays, one must assume for legal purposes that there could be students in any given classroom that know within themselves that they are gay but are being intimidated into staying in the closet. I mention that because, a victim need not come forward with a complaint for the anti-gay slur to be in violation of the school’s anti-bullying policy. Anti-gay bigots believe they are entitled to gay bash with impunity in all circumstances – but the school’s anti-bullying policies.forbid that activity. Under the policy, harassment directed at a group is covered and disallowed. A situation need not escalate to violence for a violation of the policy to occur and to constitute a disturbance. The school modified its policy on Confederate flag display after this incident but at the time, apparently all display of the Confederate flag was verboten.

    Tangentially, I personally do not believe that the Confederate flag is ever a symbol of anything other than white supremacy. You might occasionally find blacks using it in the same way you might find blacks using the n word. But, remember; Union troops had to patrol the south to enforce emancipation. The conditions for black human beings at that time there were atrocious and the continued use of the Confederate flag throughout the era of racial apartheid, with blacks considered separate and inferior, was a symbol of white supremacy. And why would it be that society tolerates the organization Sons of Confederate Veterans, but there is no group Sons of Confederate Slaves? Despite the advances in civil rights and enlightenment, there is still a generally reigning attitude on the part of whites against blacks “The suffering our ancestors inflicted on your ancestors must not be mentioned and if you mention it we will do every thing to lash out and you and put you back in your place.”

    Yet, this lawsuit would not be getting filed had Glowacki said “I don’t accept blacks,” after arguing with the teacher about his having made a student remove her Confederate flag belt buckle. So a good question for society in this is, are we going to permit anti-gay bigots to prevail over their victims, in ways we would not, were the victims members of a minority group that is already better protected than gays? The attorneys’ request for the judge to declare the school’s sexual-orientation-inclusive anti-bullying policy unconstitutional because it inhibits Glowacki’s alleged right to create a hostile environment for gay students is ridiculous. Glowacki violated the anti-bullying policy, and his evidence against the homos he so suspiciously dreads is hearsay, i.e. “God said so.”

  2. December 20, 2011

    State of Michigan
    Attorney Grievance Commission
    535 Griswold, Suite 1700
    Detroit, Michigan 48226

    This is to request that the Attorney Grievance Commission of the State of Michigan investigate the attorneys:

    Robert J. Muise, and,
    Erin Chau

    Of

    THOMAS MORE LAW CENTER
    24 Frank Lloyd Wright Drive
    P.O. Box 393
    Ann Arbor, MI 48106
    Telephone: (734) 827-2001
    STATEMENT OF FACTS
    A Complaint document that Michigan attorneys Muise and Chau have presented to The United States District Court for the Eastern District of Michigan contains language defamatory of homosexuals as a class of people. The case is titled Glowacki v. Howell Public School District.
    The defamatory language in the document subverts the dignity of the Court. Additionally, the defamatory language appears to violate Rule 6.5 of the Rules of Professional Conduct for Michigan attorneys. There is, moreover, an appearance that the defamatory language could be in violation of the Rules of Civil Procedure.
    Plaintiff Sandra Glowacki alleges that her son Daniel Glowacki’s first amendment rights were violated on Spirit Day, October 20, 2010. Spirit Day is a remembrance of gay American teens lost to bullycide. Glowacki allegedly made a disruptive protest of teacher Jay McDowell’s Spirit Day-themed class presentation. Though McDowell is not alleged to have said anything specific about Glowacki’s religious beliefs, Glowacki alleges an unconditional right to disrupt public school lessons with religious thought, especially where religious thought is condemnatory of all homosexual persons.
    Attorneys Muise and Chau have written into the Complaint document – as though it were a legally valid fact – that all homosexuals lead a “destructive lifestyle.” I ask the Attorney Grievance Commission to note that I am gay, that I am an accomplished novelist and freelance writer, that I have had cover stories on such publications as Opera News and Yacht Vacations magazines, that I have served as an advocate for domestic violence victims, that I am a loving son, brother, nephew, uncle and friend, and that my “lifestyle” may not for legal purposes be described as “destructive.” And, any eventual gay person involved on the Defense side or working inside the Court is being unjustifiably disparaged and vilified by attorneys’ Muise’s and Chau’s defamatory language.
    Attorneys Muise and Chau include other defamatory speech in their Complaint document. For example, they refer repeatedly to the Howell Michigan Public Schools’ scientifically-informed approach to discussing homosexuality as “indoctrination,” to which – so they assert — anti-gay Catholic dogma is educationally superior.
    A few words are in order as to why it is urgently important that attorneys Muise and Chau not be permitted to subvert the dignity of the Court with their language defamatory of homosexuals. Public confidence nationwide in Michigan officials’ dedication to fundamental fairness towards LGBT Americans is in doubt – these Thomas More Law Center attorneys are, after all, Officers of the Court. Michigan Assistant Attorney General Andrew Shirvell, for example, was allowed to carry out a stalking and harassment campaign against a gay student; the time it took for the system to stop Shirvell from tormenting his victim is shocking and disturbing. More recently, Troy, Michigan Mayor Janice Daniels expressed open contempt for gay human beings and their rights. And, on the Thomas More Law Center’s Facebook page, under the post the TMLC administrator made about Glowacki v. Howell Public School District, TMLC “fan” Rhein Krigner wrote: “That teacher is not a teacher but a person with their own personal agenda. The class room is no place for people like that and should be fired on the spot. You teach that crap to my kids and I will kick your ass and stuff you back in the closet.”
    ‘Although Krigner’s hateful remark is in violation of Facebook’s site Terms of Use, the administrator(s) of the Thomas More Law Center have allowed Krigner’s unambiguously gay-bashing comment to remain on the page.
    Note in conclusion that the Thomas More Law Center’s namesake Thomas More when Chancellor had people burned at the stake as “heretics,” and that during his time, in some parts of Europe, victims were burned at the stake for sodomy.
    Sincerely,
    Scott Rose

  3. I now am wondering, does this case really turn on whether Glowacki’s or McDowell’s facts are accepted? The school is being sued as well. And the remedy sought, is for the school’s anti-bullying policy to be declared unconstitutional because it infringes on Glowacki’s and other students’ alleged right to gay bash on the grounds of Catholicism, in a public school. But, the school’s anti-bullying policy protects all students equally. In sending Glowacki out of the room for saying “I don’t accept gays,” McDowell was enforcing the school’s anti-bullying policy – just as he most likely would have had a student said “I don’t accept Catholics.” It is settled law that public school students’ free speech rights in school may be limited to avoid disturbances in the learning environment, and recent directives from the DOE pertaining to how schools should deal with situations very similar to this one are based on the precedent law. For the school’s anti-bullying policy to be declared unconstitutional would open a hell’s gate of open expression of ignorance-fueled hatreds in the country’s public schools.

    • Keep in mind, under Glowacki’s version, the teacher point-blank asked him “Do you accept gays?”

      If that is how the subject came up, and if Glowacki respectfully and truthfully answered that his religious beliefs prevented him from doing so, then it would likely be a First Amendment violation for the teacher to respond with disciplinary measures.

      Students shouldn’t be punished for responding truthfully to a question posed by a teacher, if they are not being intentionally disruptive, even if their views might make some uncomfortable. It would be the teacher’s fault for asking the question in the first place, if anything.

  4. Hi Susan: Thanks for your comment. The TMLC lawyers have had conspicuous success waving their version under the noses of anti-gay bigots to stimulate donations to the TMLC. The defendants say they have not yet been served. Meanwhile, for legal purposes the TMLC version is suspect as a contrivance. Glowacki as he speaks to the media and online is very unlike the TMLC version, which has him “stating that his religion does not accept homosexuality and that he could not condone that behavior.” The McDowell version presents Glowacki speaking in the manner he has spoken to the media and online (ie “Well gays get to fly their rainbow flag). And, the TMLC version presents McDowell as a grotesque caricature of a gay rights supporter, whereas McDowell’s version shows him to be a balanced and thoughtful human being. The mocking of acceptance of LGBTers seen in the scare quotes that TMLC attorneys put around “antibullying” in their version, is not matched by any such mocking of support for religious students’ rights in McDowell’s version. That fact suggests that McDowell does in fact have a balanced view of all students’ rights. Anybody can see that the TMLC version was concocted to stimulate maximum immediate donations to the Thomas More Law Center, not the swiftest possible victory in Court. If you were the client, would you want the attorneys making money off the public off your case before the defendants had been served? Does this client understand the difference between being represented pro-bono by a publicly supported firm and being represented on a contingency basis? I do realize that if the case goes ahead, witness’s statements will weigh heavily in the end result. And, as the suit alleges a Catholic’s duty to tell “the truth” about homosexuality, I would be very interested to hear Glowacki under oath on the witness stand explaining why his Catholic understanding is “the truth” on the topic of homosexuality. I know the legal issues don’t hinge on that; I’d just enjoy seeing it happen.

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