The prohibition of a song about rainbows in the Waukesha School District has incited liberal outrage as activists hurl accusations of First Amendment rights violations and threaten the district with federal lawsuits. The song is harmless, but their indignation over its removal won’t be.
On March 21, an angry teacher tweeted about how her school nixed "Rainbowland" by Miley Cyrus from the first grade concert lineup, asking her followers, “When will it end?” The school principal and a central district administrator based their evaluation on a district policy that creates guidelines for discussing controversial topics in the classroom, and justified the removal of the song due to concerns of age appropriateness and the social and personal impacts it could have on students. The tame contents of the song might be enough to disprove all cause for concern, but the teacher and community activists have taken it much further, immediately blowing the whistle on LGBTQ discrimination and calling for the removal of the offending policy altogether.
Their presentation of this policy is completely inaccurate, and their actions against it show their true intention: to remove barriers to student indoctrination.
The offending policy, titled “Controversial Issues in the Classroom,” identifies controversial topics as anything with opposing viewpoints that may be subject to intense public argument, that would likely garner support and opposition from the community, or that has political, social and personal impacts on the students or community. A letter from the district superintendent called for the removal of various signs and flags from classrooms — from pride flags to thin blue line flags — and prohibited staff from wearing clothes or accessories with potentially contentious images or text.
The policy recognizes that controversial issues have a time and place in the classroom, and even allows teachers to share their personal opinion after student discussion has concluded. Yet a parent activist group called the Alliance for Education is considering filing a federal civil lawsuit against the district administration for violating First Amendment rights. They cite Tinker v. Des Moines (1969) which states, “It can hardly be argued that either students or teachers shed their constitutional rights to freedom of speech or expression at the schoolhouse gate.” This argument wouldn’t hold up in court, however, as multiple court cases have established that government employees — including public school teachers — have limited First Amendment rights that can be restricted.
In Pickering v. Board of Education (1968) and Connick v. Myers (1983) the Supreme Court established a two-part test that weighs whether the speech addressed a matter of public concern, and whether it outweighed the government’s interest, which promoting effective and efficient public service is “paramount.” The court also ruled in Garcetti v. Ceballos (2006) that free speech for public officials is only protected if it is expressed as a private citizen. The Waukesha School Board is well within its authority to keep and enforce the “Controversial Issues” policy, and an attempt to strike it down as a First Amendment violation would require opponents to prove that certain viewpoints are being discriminated against.
The American Civil Liberties Union (ACLU) intend to do just that and has submitted an open records request in search of proof that would enable them to file a discrimination lawsuit. However, the anecdotal stories they describe in their request letter are unlikely to yield relevant results. For example, community members claim that some schools allow locker signs for Students for Life but not the Gay Straight Alliance, and some students are allowed to pass around political but not diversity, equity and inclusion materials. Even if such claims are proven, this policy would not be the cause. It only applies to the speech and actions of staff. There is no student equivalent policy that limits their speech beyond major disruption or breaking the law.
They also claim that there have been more cases of harassment and bullying of LGBTQ students since the enforcement of this policy. District data reveals no evidence of this, but if it is true then this policy would still not be the reason for it. Increased instances of harassment and bullying would raise concerns over how the anti-harassment and bullying policies are enforced, not policies about what signs are prohibited in classrooms.
Activists are not foaming at the mouth over the exclusion of catchy rainbow songs in grade school music productions. Neither are they apparently concerned with the safety of their students, as abolishing this policy would do little to address any instance of discrimination. Instead, these actions are a scare tactic to pressure the School Board into removing a barrier that prevents teachers from pushing their own political agendas.
The district should not give in.
