Lawsuit claiming Nebraska high school violated First Amendment dismissed

Oct. 16, 2023, 8:56 p.m. ·

gavel resting on a wooden block
DOJ said there were flaws the ACLU's report on Omaha Immigration Court. ACLU observed more than 500 cases from April to August 2023. (Archived photo)

updated: Tuesday, Oct. 17, 2023 at 2:12 p.m. Central Time

A student journalists’ claim that his First Amendment rights had been violated by Grand Island Northwest Public Schools has been dismissed in court.

A federal judge dismissed the case on Monday and wrote that the plaintiffs didn’t have legal standing to file the original lawsuit.

The student newspaper, called the Viking Saga, was shut down by the school district in June 2022. That occurred three days after students published articles about the history of homophobia and the origins of LGBTQ Pride Month.

Superintendent of Grand Island Northwest called the move to stop publishing the paper an administrative decision, according to a Grand Island Independent story on Aug. 24, 2023.

The Viking Saga was reinstated last school year in an online format. The school district stated that it would allow publication of a digital version of the 54-year-old student paper.

The student journalist, Marcus Pennell, a transgender male, graduated from Grand Island Northwest High School in May 2022.

He had been represented in the lawsuit by the American Civil Liberties Union with the support of the Nebraska High School Press Association.

ACLU lawyer Rose Godinez asked the school district to implement policies to protect LGBTQ students and their viewpoints.

Pennell claimed that the school district discriminated against him, alleging school officials would not allow him to use his preferred name and gender pronouns in the byline next to his articles.

Judge John Gerrard wrote Pennell couldn’t claim he was harmed by actions taken by the school district because the paper was shut down after the student graduated.

At the end of his opinion, Gerrard had a caution for school officials, writing they would be, “wise to remember that policies and decisions to restrict speech in student newspapers… 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.’”

Godinez wrote in a statement to Nebraska Public Media on Tuesday that, “Students wrote about LGBTQ+ topics, then the school shut down their paper. It is as simple as that. We respectfully disagree with the judge's finding that our clients don’t have standing to bring this case and vindicate their rights. However, we appreciate the order emphasizing that this decision is solely related to standing rather than school officials' conduct. Likewise, we welcome its general warning to school administrators on restricting speech in student newspapers. For now, we plan to take time to discuss this order with our clients. Nothing about this turn of events changes our commitment to ensuring that LGBTQ+ students can learn free of discriminatory retaliation in our schools.”