Federal judge dismisses Denver parent’s lawsuit seeking to put ‘straight pride’ flag in classrooms

https://www.coloradopolitics.com/courts/federal-judge-dismisses-denver-parents-lawsuit-seeking-straight-pride-flag-display/article_2c351eb4-7ee3-11ef-a4c4-3f644b322a60.html

The display of LGBTQ pride flags at the plaintiff’s children’s school is government speech not regulated by the First Amendment

• Michael Karlik michael.karlik@coloradopolitics.com
 
• Sep 30, 2024 Updated Oct 1, 2024

Denver Public Schools

A federal judge on Thursday dismissed a lawsuit from a Denver Public Schools parent who sought to force the district to honor his request to display “straight pride” flags in his children’s classrooms.

Nathan Feldman brought suit on behalf of himself and his two children, alleging discrimination and a violation of the First Amendment stemming from DPS declining to add a straight pride flag in his children’s classrooms alongside displays of LGBTQ pride flags.

In a June 26 order, U.S. District Court Judge Regina M. Rodriguez determined the pride flags amounted to the government’s own speech, which the First Amendment does not regulate. Therefore, a decision by DPS not to display a flag did not violate Feldman’s rights.

 

“DPS policy reflects careful consideration about what views can be expressed and that any expressions must reflect DPS’s policy of equality and inclusion. Accordingly, the Court finds that DPS has maintained control over the flag displays,” wrote Rodriguez, an appointee of President Joe Biden.

Feldman filed suit after school administrators allegedly allowed “non-binary and non-cisgender students to have flags displayed that represent their genders but not allowing Plaintiffs to have flags displayed that represent their genders.” He asked for damages of at least $3 million and for an order allowing him to display the straight pride flag.

DPS, in moving to dismiss the lawsuit, noted Feldman’s allegations were contradictory, as he simultaneously asserted “each” classroom at Slavens School had a pride flag and that “not all teachers displayed these flags.” Nonetheless, the district argued the display of flags constituted government speech, as DPS policy endorsed the use of LGBTQ pride flags as “symbols consistent with the District’s equity-based curriculum.”

“Plaintiffs assert that passing a resolution recognizing LGBTQIA+ students or staff without providing equal recognition to those who don’t so identify is an actionable distinction. Not so,” wrote the district’s attorneys.

Feldman responded that individual teachers at his children’s school made the decision to display pride flags. Therefore, DPS was not in control of the displays and they did not constitute the government’s own speech.

In August, U.S. Magistrate Judge Scott T. Varholak recommended that Feldman’s claims be dismissed. He cited a 2022 U.S. Supreme Court decision involving Boston’s practice of allowing private entities to fly flags outside city hall. The court did not find such circumstances amounted to speech by the government.

 

However, wrote then-Justice Stephen G. Breyer, “when the government speaks for itself, the First Amendment does not demand airtime for all views.”

“Here, DPS selected the Pride Flag, and not Plaintiffs’ Flag, as representing the message that DPS wished to convey,” Varholak wrote in deeming the flag displays governmental expression. “Conversely, there is no allegation that DPS had a history of accepting for display other flags submitted by the public.”

As for Feldman’s sex discrimination and equal protection claims, Varholak noted that unless there are allegations of unequal treatment, there is no legal claim based on the absence of a flag representing cisgender, heterosexual students.

“Plaintiffs plainly disagree with DPS’s selected messaging, and phrase this disagreement in constitutional terms,” he concluded, “but ultimately fail to allege any injury except exposure to a flag that they do not feel represented by.”

Feldman objected to portions of Varholak’s analysis, but Rodriguez, the district judge, concluded Feldman was either raising new arguments for the first time or had failed to show why Varholak was mistaken.

To the claim that displaying a flag is discriminatory when it repesents a different group’s sexual orientation or gender identity, “Plaintiffs offer no legal support for their argument,” she wrote, “and the Court finds none.” 

Attorneys for both parties did not immediately respond to a request for comment.

The case is Feldman et al. v. Denver Public Schools et al.