Recent headlines have brought the issue of Gay Straight Alliances, often called GSAs, to the public’s attention. This time it is the Rankin County School District that is apparently limiting students’ ability to form a club. According to a Clarion Ledger News article, the school has created a policy that would require students to get parental permission to join an LGBT related club. It appears from the article that the school policy would only be for that particular club.
GSA clubs generally focus on combating anti-gay harassment and discrimination and on educating the school community about these issues. Federal law requires that schools treat such organizations the same as any other non-curricular club at your schools. Where schools have refused to allow gay/straight alliances to form or otherwise denied these groups equal treatment, courts have held them to be in violation of the law.
In a recent report by the Gay Lesbian and Straight Education Network (“GLSEN”) GLSEN’s Chief Research & Strategy Officer, Dr. Joseph G. Kosciw said, “Our research tells us that policymakers and education leaders in these 29 states must do more to create safer and more affirming schools for LGBT students. Training and empowering educators to create supportive environments, supporting Gay-Straight Alliances and increasing access to accurate and positive information about LGBT people, history and events and inclusive policies can improve school climate for all students.”
The federal Equal Access Act, requires that a public high school which allows any student group whose purpose is not directly related to the school's curriculum to meet on school grounds during lunch or before or after school, then it can't deny other student groups the same access to the school because of the content of their proposed discussions. Schools may select clubs based on what administrators or school board members think students should or should not discuss.
In one Equal Access Act ruling the court said: "The Board Members may be uncomfortable about students discussing sexual orientation and how all students need to accept each other, whether gay or straight. . . . [But] Defendants cannot censor the students' speech to avoid discussions on campus that cause them discomfort or represent an unpopular viewpoint. In order to comply with the Equal Access Act, ... and the members of the Gay-Straight Alliance must be permitted access to the school campus in the same way that the District provides access to all clubs, including the Christian Club and the Red Cross/Key Club. The judge went on to emphasize that the GSA provides an important forum for students who are concerned about sexual orientation. Recognizing the impact of discrimination on gay youth, the judge wrote: “This injunction is not just about student pursuit of ideas and tolerance for diverse viewpoints. As any concerned parent would understand, this case may involve the protection of life itself.”
GLESEN’s research shows that there is a continued atmosphere of violence and harassment for LGBT students. According to their 2014 National School Climate Survey on America’s Middle and High more than half of LGBT youth continue to report unsafe or even dangerous school climates - See more at: http://glsen.org/article/glsen-releases-new-national-school-climate-survey#sthash.OFDKpoOP.dpuf
One key way that schools can foster a safe atmosphere for LGBT students is by supporting GSAs in their schools. But, even where schools do not support GSAs, if they have any school clubs, they cannot prohibit students from forming a GSA and must treat the GSA as all other school clubs are treated.
President Ronald Reagan signed the Equal Access Act into law in 1984 to support religious groups who wanted to ensure that students could form Christian clubs in public schools. The authors of the law understood that if this right was granted to students who wanted to start religious clubs, then it must be extended to all students.
Numerous schools have tried, unsuccessfully, to block GSA clubs. According to the Clarion Ledger article the school system wishes to limit the club because they do not support or want it. The Equal Access Act The Equal Access Act specifically provides that a school cannot deny equal access to student activities because of the “religious, political, philosophical, or other content of the speech at such meetings.” 20 U.S.C. § 4071(a). Since any moral objections the school may have to a GSA are based on the religious, political, or philosophical views of its members, such an objection isn’t recognized by the Act. Simply put, the school cannot ban a GSA based on issues of morality if the GSA doesn't interfere with the orderly conduct of educational activities in the school. And, the courts have been unfriendly to arguments that schools have put forth that a GSA by itself would be disruptive. A court in Kentucky ruled that even extensive disruption in the community and in school (thousand-person rallies, a boycott by half the student body) isn’t enough to justify shutting down a GSA where the GSA members themselves are not causing the commotion.
Likewise, a school cannot ban a club because they do not wish to been seen as endorsing the club. Observing that “the proposition that schools do not endorse everything they fail to censor is not complicated,” the Supreme Court has held that secondary school students are mature enough to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis. Rankin County School Board Attorney Fred Harrell expressed concern that an LGBT club might violate education standards and principles adopted by the school district such as abstinence-only sexual education. Courts have also rejected the argument that GSA’s are in conflict with school abstinence education policies.
Schools cannot subject GSA’s to any conditions that do not apply to all other non-curricular clubs. Requiring a faculty advisor for the GSA but not for other groups, or placing different requirements on a GSA’s posters, leaflets, and announcements than it places on other groups, are examples of differential treatment that's unlawful.
Information in this blog post is for informational purposes only and does not constitute legal advice.
Straights and Gays for Equality v. Osseo Area Schools-District No. 279, 540 F.3d 911 (8th Cir. 2008). In addition, delaying acting on the GSA's application for approval can itself be disparate treatment that violates the Equal Access Act.  See Straights and Gays for Equality v. Osseo Area Schools-District No. 279, 540 F.3d 911 (8thCir. 2008); Gay-Straight Alliance of Yulee High Sch. v. Sch. Bd of Nassau County, --- F.Supp.2d ----, 2009 WL 635966 (M.D. Fla., March 11, 2009); Gonzalez v. Sch. Bd. of Okeechobee County, 571 F.Supp.2d 1257 (S.D.Fla. 2008); White County High Sch. Peers Rising in Diverse Educ. v. White County Sch. Dist., No. 2:06-CV-29WCO, 2006 WL 1991990 (N.D. Ga. July 14, 2006); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, 258 F. Supp. 2d 667 (E.D. Ky. 2003); Franklin Cent. Gay/Straight Alliance v. Franklin Township Cmty. Sch. Corp., No. IP01-1518 C-M/S, 2002 WL 32097530 (S.D. Ind. Aug. 30, 2002); Colin v. Orange Unified Sch Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000); East High Gay/Straight Alliance v. Bd. of Educ. of Salt Lake City Sch. Dist., 81 F. Supp. 2d 1166 (D. Utah 1999). Bd. Of Educ. of Westside Community Schools v. Mergens, 496 U.S. 226, 250 (1990). Gonzalez v. Sch. Bd. of Okeechobee County, 571 F.Supp.2d 1257 (S.D.Fla. 2008). Boyd County High School Gay/Straight Alliance, 258 F. Supp. 2d 667.
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