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."