Current Docket

Free Speech

LGBT

Open Records

Religious Freedom

Voting Rights

Free Speech

Case Name: Cole Goforth v. Robertson County Schools (Not filed)

Defendants: Robertson County Schools, Daniel Whitlow, Director of Schools

Case Status: Closed

Cole Goforth, a Greenbrier High School freshman, and his mother Julie Gordon contacted ACLU of Tennessee after he was sent home from school on April 5, 2010 for wearing a T-shirt that said, “I [Love] Lady Gay Gay.” Cole was told by school officials that he could not even wear a T-shirt in support of marriage equality because doing so and, apparently, wearing any shirt with a pro-gay message on it, was inherently “disruptive.” Goforth had long been subjected to daily anti-gay harassment at school, including threats of physical violence. Goforth was not only unable to get relief from the school, he was told by school employees that he had “brought [harassment] on himself by coming out [as gay].” ACLU of Tennessee immediately began discussions with school officials and quickly dispelled the notion that attempting to use the harassment the student experienced at school as justification for censoring his speech was unfounded and an incorrect application of Tinker. Ultimately, ACLU of Tennessee successfully negotiated with school officials an agreement that they will stop censoring students from wearing shirts expressing pro-gay messages. The school will also provide training on its anti-bullying policy to staff and students to ensure that it is clear that harassment of any student, regardless of sexual orientation, is not acceptable.

Case Name: Robin Read, Michael Read and the Estate of Brandon Read v. Dan Frazier and Lifeweaver, Inc. (No. 2:08-CV-116, United States District Court of Eastern Tennessee, Greeneville, Judge Ronnie Greer)

ACLU-TN Coop. Atty: Vanderbilt Legal Clinic, Michael Bressman (Direct Representation)

Defendants: Dan Frazier, and Lifeweaver Inc.

Case Status: Closed

ACLU-TN represented Dan Frazier, the owner of a website that sells various anti-war and peace themed products, to defend him in a $40 billion class action lawsuit that was brought against him by the families of fallen soldiers. We represented him by asserting, among other things, that his activities are protected first amendment political speech and that the lawsuit amounted to nothing more than a SLAPP (Strategic Lawsuit Against Public Participation) in an effort to silence his political speech.

The t-shirt at issue in this case said “Bush Lied, They Died” superimposed over the top of the names of all soldiers who had died in Iraq. Mr. Frazier made less than $25,000 per year, only a small portion of which came from the sale of these particular t-shirts.

The Arizona legislature tried to criminalize Mr. Frazier’s production of these t-shirts by passing legislation forbidding the use of a soldier’s name for profit. After working successfully with ACLU-AZ, he was able to obtain a strongly worded opinion declaring his actions to be clearly protected core political speech.

The class action was filed in federal court in the Eastern District of Tennessee. ACLU-TN filed a Motion to Dismiss in December 2008. In May 2010, Judge Greer (Eastern District) ruled that plaintiffs did not state a claim for which relief could be granted and dismissed Plaintiffs case in its entirety. The Court held, “[t]he defendants are correct that exercising free speech in criticizing the government is not outrageous…The views expressed by the defendants may be unpopular and even offensive to some people, but they do not rise to the level of legal outrageous conduct.”  The Court further found that Frazier did not use soldiers’ names to endorse or encourage others to buy the shirts, but “to make a political statement, which is an exercise of free speech.”

Case Name: Franks, et. al. v. Metro Board of Public Education, et. al. (No. 3:09-cv-00446, U.S. District Court Middle District TN, Judge William J. Haynes)

ACLU-TN Coop. Atty: Catherine Crump and Chris Hansen, First Amendment Working Group; Christine Sun, ACLU LGBT Project

Defendants: Metro Board of Public Education (Nashville), Dr. Jesse Register, Director of Schools (Nashville), Knoxville Board of Education (Knoxville), Dr. James McIntrye, Director of Schools (Knoxville)

Intervenor Defendant: June Griffin (TN taxpayer)

Case Status: Closed

ACLU-TN, ACLU, and ACLU-LGBT filed suit demanding that two Tennessee public school districts stop illegally preventing students from accessing online information about LGBT issues. Knox County Schools, Metro Nashville Public Schools (and 105 other Tennessee school districts) were using a web filtering software that blocked student access to the websites of many well-known national LGBT organizations, including PFLAG, GLSEN, and HRC. While access to LGBT-positive websites was prevented by the filtering software, students were still able to reach anti-gay sites, including websites that urge LGBT persons to change their sexual orientation or gender identity through so-called “reparative therapy” or “ex-gay” ministries.

After many unsuccessful attempts to resolve this issue without litigation, negotiations fell through and we filed suit in April 2009. Shortly afterwards and without our knowledge, the school districts lifted the filtering category and allowed access to all LGBT informative sites. While we were negotiating a settlement with the School Board Defendants, the court allowed a Tennessee taxpayer, June Griffin, to intervene in the case. Despite the intervention, ACLU-TN was able to enter into a settlement agreement with the School Board Defendants which provides for 1) notice to ACLU-TN if ever they decide to change their policy and modify this blocking scheme and 2) continued jurisdiction with the U.S. District Court for the Middle District of TN to enforce the terms of the agreement. The case against the School Board Defendants was voluntarily dismissed on August 12, 2009.

ACLU-TN filed a motion for summary judgment on August 20 th, 2009 to dispose of any claims that may or may not have survived the dismissal of the suit. Our motion was granted on February 11, 2010 declaring that Ms. Griffin has no standing to intervene in the case and any claims she may have had are moot.

Case Name: Church on Church Street v. Dean, et. al. (not filed)

ACLU-TN Coop. Atty: David Briley, Bone, McAllester, Norton PLLC (Direct Representation)

Defendant: Karl Dean, Mayor, Metropolitan Board of Parks and Recreation

Case Status: Closed

ACLU-TN was contacted by a Belmont University student who ministers to a following of people (students, homeless, etc.) in a public park on Church Street in Nashville. These church services typically drew a crowd of 15-25 people every Sunday morning. After meeting in this particular location for some time, the Church on Church Street was told that they could no longer meet in the park at issue without a permit from the Board of Parks and Recreation.

The Church leader, a Belmont student, applied for a permit but was denied based on a Park Policy 3000.2 which states:

No park facility (including a community center) may be used for a religious activity on a regular or permanent basis during regular operating hours; use will only be granted on an emergency or temporary basis, and only then if sufficient causes is proven such as fire, demolition of building, etc.   Religious activities occurring after regular operating hours, as all other after hour reservations, are subject to availability of staff and payment of appropriate usage fee.

ACLU-TN sent a demand letter to the Board of Parks and Recreation in May 2009 informing them of the unconstitutional nature of such a restriction and that their existing policy and application violated both the Free Exercise and Free Speech clauses of the First Amendment to the U.S. Constitution.

ACLU-TN negotiated with Metro Government to develop language for a new policy to govern repetitive use of the parks and facilities that does not discriminate against religious messages. At the October 2009 meeting, the Board of Parks and Recreation passed a policy which no longer discriminated against religious gatherings and exempts groups of 25 or less from permit requirements for repetitive use.

LGBT

Case Name: Barker v. Chandler (No. W2010-01151-COA-R3-CV Tennessee Court of Appeals for the Western District)

ACLU-TN Coop. Atty: ACLU LGBT Project, Christine Sun, Brian Faughnan and Lucian Pera, Adams and Reese, LLP, Memphis (Direct Representation)

Case Status: Pending

ACLU-TN and the LGBT project represented Angel Chandler, a lesbian mother, in an appeal involving the paramour clause of her custody order in Gibson County, Tennessee.

The central issue in this case was whether forcing a parent to choose between maintaining a relationship with their same sex partner (as they cannot marry in TN) and custody of her child, violated the Equal Protection Clause and the privacy rights of the mother.

The paramour clause restricted our client from having her partner spend the night while she had custody of or visitation with her teenage children.

“Any paramour of either parent to whom a parent is not legally married is not to spend the night in the presence of or in the same residence with any minor child of the parties. The parents shall not use any illegal drugs, consume any alcohol or allow any other person to use any illegal drugs or alcohol in the presence of the minor children.”

In 2008, the Chancery court ruled that a paramour clause must be included in a parenting plan as a matter of law in Tennessee, regardless of whether there is any evidence of harm to the child. This ruling was made pursuant to the Local Court Rules of Gibson County and the surrounding counties of Crockett and Haywood.

We appealed the court’s inclusion of the paramour clause in the parenting plan to the Tennessee Court of Appeals in December 2008. The Court of Appeals ruled in September 2009, that the best interest of the children should trump any inclusion of the paramour clause and remanded the case to the trial court to make a determination of what was in the best interest of the children in this case.

On remand in March 2010, after a full hearing, the Chancery court ruled that the inclusion of the paramour clause was in the children’s best interest-effectively barring Chandler from exercising visitation with her children at her home in North Carolina. ACLU-TN filed an expedited appeal to the Tennessee Court of Appeals in May 2010.

In June 2010, the Court of Appeals reversed the decision of the Chancery court finding that the lower court had abused its discretion. “The record is devoid of any evidence whatsoever to support the finding that a paramour provision is in the best interests of the children,” the court wrote. “In fact, the record contains evidence demonstrating that a paramour provision is contrary to the best interests of the children.”

The case has been remanded to the Chancery court for the entry of a modified parenting plan.

Open Records

Case Name: Alex Friedmann v. Corrections Corporation of America (No. M2008-01998-COA-R3-CV , Tennessee Court of Appeals for the Middle District,)

ACLU-TN Attorney: Tricia Herzfeld, Staff Attorney, ACLU-TN

Case Status: Closed

In 2009, Alex Friedmann on behalf of Prisoner Legal News (PLN) submitted an open records request to Corrections Corporation of America (CCA), a private prison company, to obtain various records regarding settlements that CCA, has entered into with prisoners at its Tennessee facilities. CCA refused to comply with the request asserting that they were not subject to the Open Records Act because they are a private entity and not a governmental body. As a result, Alex Friedmann filed suit to obtain the records. A Tennessee Chancery court ultimately found that CCA was the functional equivalent of a government agency in this circumstance as they were providing a traditional public service and ordered the records produced. CCA appealed.

After obtaining the favorable verdict, PLN moved for an award of attorneys fees as the prevailing party. The Chancery court, however, found that CCA did not act with malice when it refused to produce the records and denied attorneys fees. PLN appealed that ruling.

ACLU-TN filed an Amicus in support of both positions being advocated by PLN: that CCA is the functional equivalent of a government agency and should be treated as such for open records purposed; and that the Chancery court had held plaintiffs to an unfair burden to obtain fees in this case. The following organizations joined on to our Amicus Brief: the Associated Press, the Society of Professional Journalists, the Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, and The Association of Capitol Reporters and Editors.

Ultimately, in June 2009, the Tennessee Court of Appeals ruled that CCA was the functional equivalent of a government entity and subject to Tennessee’s Open Records law and that they had a duty to disclose the requested documents. The Court of Appeals, however, refused to overrule the Chancery court’s findings regarding attorney’s fees.

Religious Freedom

Case Name: Doe, et. al. v. Cheatham County Board of Education, et al. (No. 3:09-cv-01099,U.S. District Court for the Middle District of TN, Judge Robert Echols)

ACLU-TN Coop. Atty: George Barrett & Doug Johnston: Barrett, Johnston & Parsley Joseph Kelly and William Helou, The MG Law Firm. (Direct Representation)

Defendants: Cheatham County Public Schools, Diane Williams, Director of Schools, Tim Ray, Principal of Sycamore High School, Robin Norris, Principal of Cheatham Middle School

Case Status: Closed

In May 2009, ACLU-TN was contacted by Mr. Doe, who was upset that there was rumored to be a planned graduation prayer by the Christian Student Athlete of the Year at this year’s high school graduation ceremony. After having his children exposed to even more religious activities in the days leading up to the graduation ceremony, Mr. Doe called us again asking if it was too late to file for a TRO. In an effort to resolve the case without litigation, we contacted the attorney for the school board to discuss the situation with the graduation that was scheduled to take place in less than 18 hours.  The attorney assured us that the Director of Schools removed that portion from the program and sent out a stern email to all staff telling them that any such prayer was not to take place and that they should report any grumblings about one to her immediately.  On that assurance, we chose not to file the TRO.

Despite these assurances, a graduation prayer took place exactly as planned prior to our involvement. The only change was that the prayer no longer appeared in the program. After having his children exposed to these religious activities, Mr. Doe contacted us to obtain an injunction to disallow graduation prayer specifically and many other religious activities at school, generally at Sycamore High School. In the meantime, ACLU-TN was contacted by another Cheatham County family who was upset about a variety of religious activities in their child’s Cheatham county public school, including the distribution of Bibles to students during class time.

ACLU-TN spent the next six months attempting to negotiate a policy change with the school board, but ultimately was unable to reach an amicable resolution. As such, ACLU-TN filed suit in November 2009 alleging a pattern and practice of religious activities occurring throughout the district on behalf of two current students (one at Sycamore High School and one at Cheatham Middle School), their parents, and two former Sycamore High School students. The complaint alleged a pattern and practice of the promotion and endorsement of religious activity dating back as early as 2001. This pattern and practice included the distribution of Gideon’s bibles in the classrooms, teacher endorsed prayer before football games, and school sponsored prayer at graduation ceremonies. The complaint also alleged the teaching of creationism and intelligent design as well as the display of a cross on the wall in a high school classroom.

ACLU-TN and the school defendants entered into a settlement agreement and agreed to an order of dismissal in March 2010.

Case Name: Doe v. Wilson County Schools (not filed)

ACLU-TN Coop. Atty: Edmund Schmidt, III, Law Offices of David Randolph Smith and Edmund Schmidt, III (Direct Representation)

Defendant: Wilson County Schools, Jim Duncan, Director of Schools Carol Ferrell, Principal, Carroll-Oakland Elementary

Case Status: Closed

In 2009, ACLU-TN was contacted by the parents of a fifth grade student at Carroll-Oakland Elementary school in Wilson County who were disturbed that their child had received a Bible from the Gideons during the school day.

Earlier in the 2009 school year, the Doe’s fifth-grade daughter, Joann, was brought into the school gym just after school had started along with the members of all three of the school’s fifth grade classes. While sitting on the gym’s bleachers, the students were introduced to a group of representatives of the Gideons by Carroll-Oakland’s principal Carol Ferrell, who told the students about the time in her life when she received her first Bible and about the importance of that occasion. After being told by the Gideons representatives about how they distribute Bibles all over the world, Joann Doe’s teacher informed the students that she would be calling up each row of fifth graders to retrieve a Bible, and that taking a Bible was not necessary or mandatory. However, every student came forward to take a Bible from a basket full of Bibles, and Joann Doe said she did so only because of peer pressure from other students and her fear of being ostracized if she chose not to.

ACLU-TN sent a demand letter and a copy of the complaint we intended to file to the school board’s attorney to see if a settlement could be reached without the necessity of litigation. Ultimately we negotiated a settlement agreement with the school board (ratified December 2009) that included an agreement to disallow the distribution of bibles during instructional hours on school property throughout the district and the payment of attorney’s fees.

Voting Rights

Case Name: Terrance Johnson et al v. Bredesen, et. al. (No. 08-6377, 6 th Circuit Court of Appeals)

Atty: Nancy Abudu, Voting Rights Project

Defendants: Phil Bredesen, Governor of Tennessee; Riley Darnell, Secretary of State; Brook Thompson, Director of Elections; Ray Barrett, Admin. of Elections for Davidson County; James Johnson, Admin. of Elections for Shelby County; Kim Buckley, Admin. of Elections for Madison County.

Case Status: Pending

ACLU-TN worked with the Voters Rights Project to challenge Tennessee’s law requiring former felons to pay restitution and child support before being able to have their voting rights restored. We argued that making the payment of financial obligations a condition of voting is an unreasonable burden on the right to vote and is similar to a poll tax. We also raised additional Due Process claims relating to the difficulty one plaintiff, Alex Friedmann, was having in ascertaining whether he even owed the restitution the state was contending he pay in order to regain his voting rights.

Ultimately, Mr. Friedmann’s Due Process claims were resolved and he was able to vote in the November 4 th, 2008 election (the first time he has ever voted in his life). However, the U.S. District Court for the Middle District of Tennessee granted summary judgment to the Defendants. ACLU-TN appealed the District Courts decision to the 6 th Circuit Court of Appeals. All briefing was completed in May 2009. We are awaiting a ruling on the briefs.

Past Dockets

2007-2008