January 24, 2020

Superintendent and Board of Trustees

Wimberley Independent School District
951 FM 2325
Wimberley, Texas 78676

C/O Laura S. Fowler

The Fowler Law Firm, PC
8310 North Capital of Texas Highway Suite 150
Austin, Texas 78701
(512) 441-1411
lfowler@thefowlerlawfirm.com

Sent Via E-mail

Re: Level Two Grievance for Retaliation against Parents in Wimberley ISD

Dear Trustees of Wimberley ISD and Superintendent York:

We submit the attached Level Two Grievance on behalf of Bryan Burke to address the
unconstitutional actions that Wimberley ISD has taken against him in attempting to silence his
freedom of speech. We urge the District to take prompt and meaningful action to respect the First
Amendment freedoms of every Wimberley resident and to quickly resolve this dispute.

As we explained in a previous letter on January 3, 2020, Wimberley ISD can easily avoid
significant legal liability at the detriment of Wimberley taxpayers, students, and parents if the
District allows Mr. Burke and other citizens to use the altered LGBTQ logo without repercussion
instead of threatening legal action against them. As a government entity, the District cannot
suppress speech that is shielded by the First Amendment, and federal copyright and trademark
law explicitly allow for commentary and criticism on political and social issues. Parents in
Wimberley ISD transformed the Texans logo to raise concerns about how Wimberley schools
can be safer and more inclusive for LGBTQ students, and the District is constitutionally
obligated to listen to those concerns instead of impermissibly trying to quell parent voices.

To our knowledge, the District has not yet sent any cease and desist letters to Wimberley
residents since we sent you a letter on January 3 asking you to refrain from doing so. However,
the District has also refused to retract the e-mail that Superintendent York sent to parents on
December 18, which threatened legal action against them. As a result, numerous people have
taken down the altered LGBTQ logo from social media for fear of legal retaliation. Others,

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including Mr. Burke, have not removed the altered logo from their accounts, but they still fear
that they will be prosecuted and subject to legal action by the District.

We therefore urge you to immediately retract the December 18 e-mail and assure
Wimberley parents that their freedom of speech will be respected. Copyright and trademark law
do not usurp the First Amendment, and Wimberley ISD must rectify the damage it has already
done in chilling people’s speech, discriminating against a particular point of view, and retaliating
against parents and community members for expressing their opinions and beliefs.

Factual Background

Bryan Burke is the parent of a student at Wimberley High School who is a member of the
LGBTQ community. Mr. Burke and his family first moved to Wimberley, Texas eight years ago
and enrolled their children in Wimberley ISD in order to seek the best possible education for
their kids. Approximately four years ago, Mr. Burke learned that one of his children is LGBTQ.
When listening to his child’s concerns, he learned that many LGBTQ students in Wimberley
experience bullying and discrimination, as they do across the state.1 Mr. Burke therefore became
an advocate for LGBTQ students and currently seeks to make Wimberley High School safer and
more affirming for students of every gender identity, gender expression, and sexual orientation.

Before parents and community members organized the first annual Wimberley LGBTQ
Pride March on September 21, Mr.
Burke sought to show solidarity with
LGBTQ students in Wimberley
schools and to criticize and comment
on the lack of support that these
students currently receive from the
District. Mr. Burke thereby joined
other parents in transforming the
Wimberley Texans logo in multiple
ways, including by changing the red
and white background into the rainbow
pride flag, in order to show support for
LGBTQ students in Wimberley
schools and to express his political and
social views.

On September 25, Mr. Burke

posted the rainbow pride logo on
Facebook with the caption: “I proudly
stand beside those in our community
and schools who have felt
marginalized and often bullied for who
                                                            
1
The vast majority of LGBTQ students in Texas report experiencing anti-LGBTQ remarks and
harassment at school. See 2017 State Snapshot: School Climate in Texas, GLSEN (2017), available at
https://www.glsen.org/sites/default/files/2019-11/Texas_Snapshot_2017_0.pdf.

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they are. We are Wimberley and this is #NoPlaceForHate. #TheGreatestIsLove.”

On December 18, Mr. Burke received an e-mail from Superintendent York, instructing
him to remove this post from social media by Jan. 6 or face “a cease and desist letter from the
WISD attorney.” Before and after Mr. Burke received that e-mail, he made multiple attempts to
resolve this situation informally by speaking before the school board and meeting with
Superintendent York. As of today, Mr. Burke has not received a cease and desist letter and has
not removed his post from Facebook.

Legal Concerns

By threatening legal action against Wimberley ISD parents who have expressed criticism
and commentary on the District’s lack of support for LGBTQ students, school administrators
have violated the First Amendment in multiple ways: by chilling protected speech, by
discriminating against a particular viewpoint, and by engaging in impermissible retaliation
against Wimberley parents. Regardless of whatever copyright or trademark claims the district
puts forward, posting an image of the rainbow flag and Texans logo on Facebook to express
criticism and commentary falls squarely within the ambit of the “fair use” doctrine and
constitutionally protected speech. Wimberley ISD should therefore retract the e-mail that
Superintendent York sent on December 18 and assure all parents and community members that
the District will respect their First Amendment rights.

Posting an image on Facebook to express support for LGBTQ rights and to criticize a
government entity constitutes core political speech on a matter of public concern, which is
afforded the highest rung of protection under the First Amendment.2 It has long been established
that “the government may not regulate speech based on its substantive content or the message it
conveys.”3 Discrimination against a particular viewpoint “is presumed to be unconstitutional,”
because First Amendment protections “must be accorded to the ideas we hate or sooner or later
they will be denied to the ideas we cherish.”4

Courts have made clear that public schools cannot discriminate against certain viewpoints
even under the guise of trademark law. In a recent case, Iowa State University tried to stop a
student group from using its trademarks alongside a cannabis leaf to convey political support for

                                                            
2
See, e.g., Young v. Giles Cty. Bd. of Educ., 181 F. Supp. 3d 459, 464 (M.D. Tenn. 2015)
(invalidating a school ban on LGBT apparel because “[s]tudent expression on LGBT issues is speech on a
purely political topic, which falls clearly within the ambit of the First Amendment's protection”); see also
Gillman ex rel. Gillman v. Sch. Bd. for Holmes Cty., Fla., 567 F. Supp. 2d 1359, 1377 (N.D. Fla. 2008)
(finding that “wearing a t-shirt expressing support for homosexuals or displaying a rainbow-colored
sticker” constitutes protected speech); Catholic War Veterans of U.S., Inc. v. City of New York, 576 F.
Supp. 71, 75 (S.D.N.Y. 1983) (“Peaceful political demonstrations like the Lesbian and Gay Liberation
March are a form of speech and expression that is at the core of the First Amendment”).
3
Rosenberger v. Rector & Visitors of Univ. of Virginia, 515 U.S. 819, 828 (1995).
4
Id.; Communist Party of U.S. v. Subversive Activities Control Bd., 367 U.S. 1, 137 (1961) (Black,
J., dissenting).

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the decriminalization of marijuana.5 The university claimed that it received complaints from
members of the community who thought that the logo caused confusion and led people to
mistakenly believe that the university supported marijuana reform.6 However, the U.S. Court of
Appeals for the Eighth Circuit found the university’s response to be clearly unconstitutional,
since the university had never before enforced its trademark policy in this way and was primarily
responding to community concerns about a particular point of view.7

Wimberley ISD is currently engaging in similarly impermissible viewpoint

discrimination, even if the District’s actions are in response to community concerns about
possible confusion. Federal trademark law “protects only against mistaken purchasing decisions
and not against confusion generally.”8 When someone uses a trademark to convey “ideas,
criticism, comparison, and social commentary,” that use is shielded by the First Amendment.9

Similarly, federal copyright law explicitly allows for the use of copyrighted material to
engage in criticism and commentary through the “fair use” doctrine. By transforming the logo in
multiple ways, Wimberley parents imbued it with new “expression, meaning, or message.”10 The
parents never used the logo for commercial purposes, but simply to engage in criticism and
comment on social and political issues.11 When people post “copyrighted material for criticism
or to spark conversation” for non-commercial purposes, their use of such material is
“presumptively fair” and shielded by federal copyright law and the First Amendment.12 Thus,
even under federal copyright and trademark law, the school district has no plausible basis for
taking legal action against Wimberley parents who altered and posted the logo to engage in
constitutionally protected speech.

Wimberley ISD’s policies currently recognize the fair use doctrine by not requiring
anyone to request written permission from the Superintendent to use a copyright if the use
constitutes “an exception under the ‘fair use’ guidelines maintained by the Superintendent.”13
The District should follow its policies in not requiring anyone to request specific permission
                                                            
5
Gerlich v. Leath, 861 F.3d 697, 701 (8th Cir. 2017).
6
Id. at 702.
7
Id. at 709.
8
Lang v. Ret. Living Publ'g Co., 949 F.2d 576, 583 (2d Cir. 1991).
9
Radiance Found., Inc. v. N.A.A.C.P., 786 F.3d 316, 327 (4th Cir. 2015) (finding that use of
trademarks for criticism and commentary is shielded by the First Amendment, even if it leads to evidence
of actual confusion about an organization’s policy stances or beliefs).
10
17 U.S.C. § 107; Campbell v. Acuff-Rose Music, Inc., 510 U.S. 569, 579 (1994).
11
17 U.S.C. § 107.
12
In re DMCA Subpoena To Reddit, Inc., 383 F. Supp. 3d 900, 906 (N.D. Cal. 2019) (posting
copyrighted material on Reddit was shielded by the fair use doctrine because it was meant to “evoke
conversation” and not for commercial purposes); see also Peterman v. Republican Nat'l Comm., 369 F.
Supp. 3d 1053, 1060 (D. Mont. 2019) (finding that the Republican Party had a right to use photographs
whose copyright was owned by a Democratic campaign because the photos were used for political
messaging and did not affect the market for the original copyrighted material).
13
CY (Local)-A, Wimberley ISD, enacted May 25, 2011, available at
https://pol.tasb.org/Policy/Download/620?filename=CY(LOCAL).pdf

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before altering copyrighted material in ways that fall within the “fair use” doctrine. This does not
mean that the District cannot enforce its intellectual property rights in ways that do not infringe
the First Amendment—such as by requiring businesses to sign licensing agreements and pay
royalties to reproduce District logos for commercial purposes. But when parents and community
members transform a logo for criticism and comment on social and political issues, the District
cannot suppress their constitutionally protected speech.

Conclusion

As a government body, Wimberley ISD cannot discriminate or retaliate against parents,

students, or community members based on the content of their speech. As parents and students
raise criticism and concerns about how to make the school district safer and more affirming for
LGBTQ students, the school district should listen to those concerns instead of silencing them.

We urge you to respect the freedom of speech enshrined in the Constitution by retracting
Superintendent York’s e-mail on December 18 to everyone who received it. We also ask that you
grant permission to Mr. Burke and other parents for this particular use of the logo, even though
such permission is not required by CY (Local). By assuring people that transforming and using
the District’s logo in this way is protected by the First Amendment, Wimberley ISD can assure
parents and community members that they will not be threatened with legal action in the future,
which will undo some of the damage that has already been done in suppressing people’s speech.

We look forward to resolving this grievance and discussing these issues with you at a
Level Two Conference. We also incorporate by reference the previous letter that was sent to you
on January 3 and the facts and arguments contained therein.

Sincerely,    

Brian Klosterboer
Skadden Fellow and Attorney
ACLU of Texas
PO Box 8306
Houston, Texas 77288

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