Emily Baumgarn contacted the ACLU about taking up the case. This caption has been corrected.
MARSHALL — The battle over a flag supporting LBGTQ students at a middle school here rages on amid threats of litigation on both sides.
Advocates for LBGTQ students at Marshall Middle School said they have contacted the ACLU and will consider legal action if district administrators remove a rainbow pride flag that has sparked debate in this southwest Minnesota town since January.
At a previous board meeting, Minneapolis attorney Bill Mohrman said that local church leaders will file a lawsuit in federal district court on First Amendment grounds if the school district does not develop a “viewpoint neutral” policy “to ensure that everybody’s rights to have a say in what symbols go up in a public building they support with their tax dollars are recognized.”
The school district’s attorney Kristi Hastings consulted with the school board about potential litigation during a closed session after the March 2 public form. Asked about the status of any legal action against the district, Hastings said “There was a threat of a lawsuit in an open hearing. I can’t really say anything else.”
With the LGBTQ advocates now also threatening litigation, the debate could soon become part of a recurring American legal battle about whose rights take precedence — a minority group like the city’s small LGBTQ community or the religious majority.
Kelly Holstine, director of educational equity at OutFront Minnesota and the 2018 Minnesota Teacher of the Year, urged Marshall Public School board members at their Monday meeting to support LBGTQ students by keeping the flag up in the cafeteria, alongside 18 other flags representing students’ cultural and national identities for a diversity project.
“The kids are watching right now. They’re watching to see what adults are saying about LBGTQ humans, and that’s impacting how they feel about themselves and each other,” she said after the board meeting.
Holstine cited the U.S. Department of Education Office of Civil Rights, the Minnesota Human Rights Act and the Minnesota Safe and Supportive Schools Act that support LBGTQ+ students’ right to safe educational environments free of discrimination and harassment.
“This flag is showing tangible support towards those humans, and there is no law that supports the claim that people’s First Amendment rights are being harmed by flying [it],” she told the school board. “Non-supporters are using that lawsuit as a threat and an attempt to control, manipulate and coerce you into being afraid.”
“Taking the flag down and demonstrating active discrimination against a protected class could cause a lawsuit that you most likely would not win. Being neutral is not being supportive,” Holstine said.
No one at the Mar. 2 board meeting spoke in opposition to the flag. At a Feb. 18 meeting, a group of Christian pastors and congregation members addressed the school board with concerns about what they considered immoral behavior represented by the flag, citing Bible quotations and demanding that a Gadsden flag and a National Organization for Marriage flag be hung alongside the pride flag.
The Gadsden flag is a Revolutionary War era symbol that has been adopted by some white supremacist groups. The National Organization for Marriage was founded to prohibit same sex marriage in California with a ballot amendment in 2008.
Marshall parent Emily Baumgarn has contacted the ACLU, which she said is monitoring the situation and will be notified if the flag is taken down. Baumgarn attended district schools and plans to send her toddler and infant children there.
“I am nervous for my children to go to a school district where the[re is] opposition to a display created for the sole purpose of acknowledging and welcoming,” she told the board during an open forum.
School board members did comment on the issue, but a Marshall High School student representatives to the school board said the flag should remain.
Junior Spencer Vang said he knew LBGTQ students who were bullied at the school both before and after the flag went up. He said LBGTQ students had been physically and verbally assaulted by classmates ,and that a few teachers had verbally harassed these students as well.
“I support [the flag],” he said. “I don’t think it should be this big of a controversy, so when it hit, I was like wow. The flag helps kids and the children know they’re accepted.”
There was no word from the school board or administrators on when or whether they would develop a policy governing symbols displayed in district schools or when they would determine the rainbow flag’s fate.
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