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Gay-Straight Alliances and Free Speech in K-12 Schools:

I've often noted cases in which government-run K-12 schools discriminated against private religious student speech, for instance by excluding distribution of religiously themed leaflets where distribution of other ideologically themed material was allowed. Nearly all the cases in which this issue has been litigated have (entirely rightly, in my view) come out in favor of a right to equal treatment, both under the First Amendment and, as to exclusion of religious clubs, under the federal Equal Access Act. The chief exceptions have involved religious speech in the context of school curricular activities, whether the speech, even if chosen by students or parents, becomes part of the school's own speech; there it does make sense that the school may choose what goes into its own speech and what is left out.

But I should also note that the Equal Access Act has come in handy for another kind of club that is often discriminated against — Gay-Straight Alliances. Gay-Straight Alliance of Okeechobee High School v. School Bd., 2007 WL 1031701 (S.D. Fla. Apr. 6), is a recent example: The principal refused to grant recognition to a Gay-Straight Alliance club that some students were trying to form. But the school "permit[s] numerous non-curricular clubs to meet on school grounds during non-instructional time and to use school facilities" — and under the Equal Access Act, allowing such noncurricular clubs creates a "limited open forum," and covered schools are barred from

deny[ing] equal access or a fair opportunity to, or discriminat[ing] against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.

The principal's justification?

Defendant argues that it can refuse to officially recognize the OHS GSA because it is a "sex-based club" and courts have held that a school can restrict sexual material in a public school with children, and allowing such would be contrary to the well-being of students and would disrupt order and discipline on the school premises.... This Court agrees ... that in public schools with students under the age of 18, the school may restrict access to and expression of obscene and explicit sexual material and innuendo. However, this Court is not persuaded that this proposition applies to the present situation.... Defendant offers no evidence to ... show that the OHS GSA would be involved with accessing or sharing with other students obscene or explicit sexual material; rather, this appears to be an assumption or conclusion derived from the name of the club....

Defendant also argues that it can refuse to officially recognize the OHS GSA because allowing any sex-based club official recognition and privileges would interfere with Florida's and the school's abstinence based sex education curriculum, and this would be contrary to the well-being of students and would disrupt order and discipline on school premises.... But Defendant's ... do not offer any clear reason to believe that the OHS GSA would hinder the teaching of the benefits of abstinence at the school. In fact, there is no apparent reason why the OHS GSA might not be an advocate for abstinence in the school.....

Defendant also argues that granting the OHS GSA official recognition and all privileges allowed other clubs, would permit "circumstances under which health and safety problems for students might invite lawsuits [which] are also disruptive to the educational process." ... [T]he Plaintiffs state that the official purposes of OHS GSA are the "promot[ion of] tolerance and equality among students, regardless of sexual orientation and/or gender identities through awareness building and education," "[t]o create a safe respectful learning environment [sic] for all students," and "[t]o work together with administration and other school clubs to end prejudice and harassment in school functions." So the expressed purposes of the OHS GSA are to prevent the very harassment and injury that [an earlier court decision in a different district that came out the other way] was concerned would lead to lawsuits. Also, in this case, Defendant has questioned whether harassment of homosexual students is a pervasive problem at OHS. Def. Resp. at 3 ("When questioned about the specifics of the instances of harassments, none of the students were able to identify any harassing incidents involving them specifically."). Further, the Court questions how many lawsuits are likely to arise against the school because it has followed an order of this Court.

This analysis strikes me as generally quite right; the "expressed purposes ... are to prevent the very harassment and injury" argument is a little glib — that the GSA's purposes are noble doesn't mean that recognizing it won't have bad effects. But under the EAA, the principal can't just exclude a group because of a hypothesis that maybe its presence will lead to harassment of its students.

In any case, the court rightly found that the students had shown a likelihood of success on the merits, and granted a preliminary injunction ordering "that the Defendant shall, so long as it maintains a limited open forum under the EAA, grant official recognition and grant all privileges given to other clubs at the school to the Okeechobee High School Gay-Straight Alliance club."

Oh My Word:
It appears that court ideology can very easily dictate whether something is a "limited public forum" or not. If a Christian group prints up t-shirts saying that homosexuality is sinful behavior worthy of eternal damnation, the public school is apparently correct to bar the shirts on the nebulous basis that it might incite violence or perhaps that it hurts students' feelings. The latter is a specious concern designed to rationalize the policy, and the latter is a straightforward moral judgment. T-shirts are not part of a limited public forum?

However, if a public school wants to bar a GSA club on moral grounds or to ensure that children receive proper sexual guidance from the school environment, and on the basis that it is contrary to a sex curriculum, then the school is violating a limited public forum with content-based restrictions?

Any distinctions between T-shirts and clubs in terms of being limited public forums would be rationalizations at best. Some courts are, as Justice Scalia warned, taking sides in the culture wars under the guise of designating something as a limited public forum or not. If anything, I would think that T-shirts are more public speech-related than school-sponsored clubs (which the school should have more, not less, control over).

For the record, I think that both should not be limited public forums, and that public schools, under an original understanding of the First Amendment, have very broad license to craft school environments according to moral goals without much First Amendment restriction.
6.8.2007 2:35pm
Dave N (mail):
People who read my posts know I am fairly conservative though not doctrinaire by any means.

That said, it seems the judge got the ruling right. The law allows all student groups to have equal access in a limited forum and recognition if some groups do: The Bible Club as well as the Chess Club can both be recognized, for example.

If the group was actually advocating something contrary to school policy, that would be a different matter--and the school could revoke or deny recognition.

If "Gay Nazis for Christ" wanted to be recognized as a student group, I think the law requires OHS to recognize it--so long as the group did not advocate premarital sex, fascism, or activites the high school administration procribed for other religious-based student groups.
6.8.2007 2:35pm
Ashley Higgins (mail):
Fine. Let's also then form a Fornication and Cunnilingus Society in every school.
6.8.2007 2:38pm
Dave N (mail):
By the way, I also tend to agree with Oh My Word--and frankly, I think schools should be able to ban "message t-shirts" as long as the regulations are content neutral.

In other words, if the regulation bans "God Hates Fags" then the school should equally bar "Smile, Jeses Loves You," "Atheists Rock," and "Gay Pride"
6.8.2007 2:41pm
Dave N (mail):
Yes, I know how to spell "Jesus" and No, I have not gone over to the Dark Side.
6.8.2007 2:43pm
Jamesaust (mail):
"Let's also then form a Fornication and Cunnilingus Society in every school."

We have. We call it "society." Its just that the vast majority of members in the "club" are part of the heterosexual majority and thus are so "normal" that they don't even recognize that they are themselves a special interest. Majorities are rarely self-aware; they perceive themselves uncritically as The Standard and perceive everyone else as The Exception.
6.8.2007 3:26pm
Clayton E. Cramer (mail) (www):
A consistent application of the rule is all that conservatives want: if the school can ban wearing a T-shirt that disapproves of homosexuality while the school is actively promoting homosexuality, then it certainly has the right to prohibit Gay/Straight Alliance Clubs.

The reasoning of Tinker (1969) may have made the Supreme Court feel good, but it is not consistent with the history of what the First Amendment was intended to protect, leading to the absurdity of these decisions that find some forms of free speech protected and others not. There were way too many of these decisions in the 1960s and 1970s that attempted to apply the Bill of Rights to minors in a manner that was clearly contrary to the historical understanding of what the Bill of Rights protected and did not protect, such as In re Gault (1967).

I won't claim that I find all of the regulations and statutes that were struck down in these decisions to be particularly sensible, but the judges aren't supposed to be superlegislators. Dumb or foolish does not necessarily mean unconstitutional.
6.8.2007 3:30pm
Ramza:
"God Hate Faqs"

and

"The Bible disproves of homosexual acts (followed by listing bible verses)" are too completely different t-shirts. Both may be disproving of homosexuality, but there rhetoric, and their possibility to inflame are extremely different.
6.8.2007 3:33pm
JosephSlater (mail):
So, to be "neutral," if a school allows t-shirts that say "all mankind are brothers," or even "end racism," they also have to allow shirts that say, "God hates niggers"? And if we're thinking of the most recent "God hates fags" case, we also have to remember the student was distributing fliers with the picture of a specific classmate on them, so we could add that to my hypo too.
6.8.2007 3:47pm
Nathan_M (mail):
Dave N, you should be in the ironic t-shirt business. I'd bet a "Jesse Loves You" shirt with a picture of John Stamos would sell very well.
6.8.2007 3:48pm
Dave N (mail):
Nathan M

Thanks for the laugh. You made my day.
6.8.2007 3:56pm
Dave N (mail):
Joseph Slater,

Aa you know, "fighting words" have only limited First Amendment protection, if that--and distributing pictures of a specific student seems to elevate the t-shirt in that context to the status of "fighting words."

Frankly, I have absolutely no problem with a school rule banning t-shirts with ALL messages--good, bad, and indifferent.
6.8.2007 4:03pm
Ramza:

Frankly, I have absolutely no problem with a school rule banning t-shirts with ALL messages--good, bad, and indifferent.

That is a completely different situation all together. The bright-line rule is very clear and it is non-discriminatory. It is when you allow some things in you now have to have a rational why is it okay for this speech but not that speech.
6.8.2007 4:11pm
JosephSlater (mail):
Dave N.:

OK, but not all racist messages constitute "fighting words," in fact, most don't, at least as I understand that principle (I'm not a First Am. scholar). Does a public school really have to allow T-shirts that say, "Blacks are inferior monkeys," or at least do they have to allow them if it allows "we are all brothers" or "stop racism" shirts?
6.8.2007 4:19pm
Ramza:
There is a major difference between ""Homosexuality is shameful/Be ashamed. Our school has embraced what God has condemned," case and this one with the GSA. It is because the t-shirt case was a disruption on school hours, and the GSA by definition on Equal Access Act is on-non school hours. (Equal Access Act forces the club to be on non school hours but they can have access to to meeting spaces, the PA system, school periodicals, bulletin board space and similar items.)

Yes the Equal Access Act requires the club to be non disruptive, but even if it is disruptive the kids may choose to participate or to avoid, while they couldn't avoid the t-shirt.
6.8.2007 4:20pm
Dave N (mail):
I think a school can reasonably regulate t-shirts but I am trying to think of a good rule other than the famous definition of pornography ("I know it when I see it").

I am not a First Amendment absolutist and I think schools need a mechanism to deal with t-shirts that are patently disruptive. I get queasy, however, if the line for "unacceptable" is merely that the school administration doesn't like the message.

I certainly am open to suggestions for what a reasonable test should be.
6.8.2007 4:35pm
JosephSlater (mail):
Dave N.:

That's what I'm struggling with too.
6.8.2007 4:46pm
David M. Nieporent (www):
If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein. If there are any circumstances which permit an exception, they do not now occur to us.
6.8.2007 6:40pm
Clayton E. Cramer (mail) (www):

OK, but not all racist messages constitute "fighting words," in fact, most don't, at least as I understand that principle (I'm not a First Am. scholar). Does a public school really have to allow T-shirts that say, "Blacks are inferior monkeys," or at least do they have to allow them if it allows "we are all brothers" or "stop racism" shirts?
The choices are:

1. Discriminate based on the opinion--which essentially means that schools get to decide which messages are okay and which are not. If so, Poway is properly decided--and so is banning GSA Clubs.

2. Not allow viewpoint discrimination, in which case Poway was wrongly decided, and banning GSA Clubs isn't okay.

3. Take away all discretion from school offficials, and prohibit all messages that aren't directly related to school. But of course, that would be contrary to Tinker (1969), and would prohibit the vast majority of the liberal propagandizing in public schools.

4. Continue down the current hypocritical path whereby liberal judges make decisions like Poway, deciding with absurd arguments that some free speech is protected, but not others, based entirely on what speech the judges like.
6.8.2007 6:48pm
John D (mail):
I think the t-shirt line people are looking for is "Christianity = Fascism." Or really any other such slogan which serves only to denigrate someone else's religion.

The denigration of homosexuality (or anything else) within a Christian context is not a celebration of Christianity. Christianity becomes a surface coating for animus against a group.

Likewise, there is a difference between a Gay/Straight Alliance and an anti-Christian club. There seem to be too many Christians who think that any disagreement is an attack on them.
6.8.2007 6:50pm
ReaderY:
Would the school be required to recognize a Date Rape Club if it promised to limit activities to advocating tolerance and support for the substantial minority of people who engage in the practice. What if they claimed that their members considered the practice part of their identity?
6.8.2007 7:13pm
Colin (mail):
Dave N said, People who read my posts know I am fairly conservative though not doctrinaire by any means.

This is a little off-topic, and I apologize for that, but I left a few snippy comments this week criticizing people for prioritizing knee-jerk conservative partisan rhetoric over the facts. I think it's appropriate for me to note that I pay special attention to your comments, because I have noticed that you're noticeably more objective than most commenters. It makes you especially credible, even though I often disagree with you. Thoughtful comments from across the aisle are one of this site's strongest features, and I appreciate yours.
6.8.2007 8:05pm
Hoosier:
People who read my posts know that I am fairly conservative and completely unbalanced mentally.
6.8.2007 8:25pm
Stanford Matthews (mail) (www):
If the parents of this school's students opposed or supported this club in large enough numbers I suspect the school would feel obligated to call a meeting or simply base their decision on the greater number of parents either in favor or opposed.
If the school admin would have been proactive in taking the public temperature, they might have avoided further difficulties.
6.8.2007 9:27pm
Ramza:

If the parents of this school's students opposed or supported this club in large enough numbers I suspect the school would feel obligated to call a meeting or simply base their decision on the greater number of parents either in favor or opposed.
If the school admin would have been proactive in taking the public temperature, they might have avoided further difficulties.

Can't do that, the Equal Access act specifically says that if the school opens at least one "limited open forum" and receives any form of federal funds, it must then allow all groups to have access.

You can't make it into a popularity contest and say we don't like this group thus we are not allowing it. If you allow a Christian club, all clubs are allowed including gay straight alliances, wiccan clubs, paper airplane clubs, etc. There are some very basic limitations on what you can't do for example the club can't advocate illegal activity, can't be disruptive, and a few other things. You can read the law in the link below

The text of the Act

The only way for the equal access act to not apply is to deny all clubs the use of school facilities after hours, or not receive federal funds. It is seriously all or nothing.
6.9.2007 1:55am
Public_Defender (mail):
the judges aren't supposed to be superlegislators

Turning down the Gay-Straight Alliance's complaint would have made this judge a "superlegislator." Remember, the federal judge was only enforcing a federal statute.
6.9.2007 6:17am
Randy R. (mail):
"Would the school be required to recognize a Date Rape Club if it promised to limit activities to advocating tolerance and support for the substantial minority of people who engage in the practice. What if they claimed that their members considered the practice part of their identity?"

We would laugh at the claim, since being a rapist is not an identity that one is born with, whereas homosexuality is. Moreover, raping people is nonconsensual sex, as well as illegal , whereas if two men have consensual sex, it's their business.

Understand the diff?

However, you make a good point. Many people who are anti-gay seem to think along these lines:
1) all gay sex is somehow immoral
2) All immoral sex is bad and should be stopped, therefore,
3) All gay sex should be stopped. Or at least be disapproved in our society.

The false premise is No. 1. Sex between two consenting adults is between them, and society has no business telling them they can't have sex. It isn't inherently immoral, although some religions claim it is.

Rape, on the other hand is immoral, and also illegal in all states.
6.11.2007 7:20pm
Randy R. (mail):
Ashley: "Let's also then form a Fornication and Cunnilingus Society in every school."

We already do. It's called the Locker Room.
6.11.2007 7:21pm