School Board’s Misleading Court Filings Call GSA’s Anti-Bullying Efforts “Sexual Advocacy”
The gay-straight alliance saga continues in Florida’s Lake County.
In court papers filed in connection with the second lawsuit brought by the American Civil Liberties Union of Florida (ACLU) against the Lake County School Board, the board continues its deeply hurtful battle to block the formation of a gay-straight alliance (GSA) as an officially recognized student club at a local middle school. The ACLU is correctly arguing that the school board is violating federal law, including the Equal Access Act and the Constitution.
The school district’s latest filings include several misleading, odd, offensive and just plain sloppy arguments, including an outlandish contention that the GSA, if allowed to form, would engage in “sexual” “advocacy.”
I explore some of the board’s infuriating arguments below. But first, briefly, some background:
Two Years of Anti-Gay Obstruction: A Condensed HistoryAs I’ve explored in a series of posts, school officials in Lake County have engaged in various forms of obstruction since early 2012 to block a GSA from forming as an official student club at one of the district’s schools, Carver Middle School. (Fortunately, the district allows GSAs at the high-school level.) Bayli Silberstein, a current high school student who was at Carver until spring 2013, led the effort to form the club starting in early 2012, but she repeatedly faced rejection and delay from school officials, who offered a series of shifting justifications and outrageous comments about their actions. (One board member claimed quite ridiculously in an email to me that the board had “not blocked the GSA.” I wonder if he still stands by that statement. Another board member, in an email to blogger Katy Bourne, openly questioned and disparaged then-14-year-old Bayli’s sexual orientation.)
When Bayli’s impending middle-school graduation left litigation as the only option, the ACLU filed suit on her behalf on May 1, 2013. The very next day, the school district agreed in a federal consent decree to allow the GSA to form and “to operate … on the same terms as any other noncurricular student club.” The court later entered judgment against the district, and the district paid $14,000 in attorneys’ fees and court costs to the ACLU. The GSA was able to form before Bayli graduated.
Upon Bayli’s graduation, however, the federal consent decree expired, and the district renewed its obstruction strategy. Buoyed (or so it believes) by changes to state law that might affect students’ rights under the federal Equal Access Act (see below), the board created a new, vague, and likely unconstitutional policy for middle school clubs. Applying that policy, school officials denied students who remained at Carver Middle School the right to continue the GSA as an official student club. (The denial of official recognition means, among other things, that the club doesn’t have the same rights and benefits as other non-curricular clubs, like access to the yearbook, resources to advertise meetings, and the ability to hold social events at school.) So the ACLU, this time representing a group of students led by 12-year-old Hannah Faughnan, filed a second lawsuit, again asking a federal court to order that the school allow the GSA with all the same rights and privileges as other non-curricular clubs.
Where Do Things Stand Now?
After filing suit, the ACLU filed a motion for a preliminary injunction a few weeks ago. This is a way of asking the court to allow the GSA to operate without discrimination while the litigation runs its course. Lawyers seeking this sort of injunction have to make various showings to justify the preliminary relief; most importantly, they typically need to convince they judge that they are likely to win the case.
The school district, predictably, has opposed the injunction request; it has also asked the judge to dismiss the entire case, claiming that the suit has no legal basis at all. (This is a stretch.) A judge held a hearing on the ACLU’s injunction request on February 10, and could issue a ruling at any time; he might rule simultaneously on the district’s motion to dismiss.
Who Will Win?
The legal arguments clearly favor the ACLU, for reasons I explore below and in other posts (particularly this one: Can and Should Middle Schools Allow Gay-Straight Alliances? (April 2013)). Still, an ACLU (and GSA) victory is not altogether certain, for at least two reasons.
First, the federal Equal Access Act—which is one of the main laws protecting students’ right to form non-curricular clubs without discrimination—only applies to “secondary schools,” and the Act mostly leaves the definition of “secondary school” up to individual states. So whether the Act protects the Carver GSA depends largely on how Florida defines “secondary” education. Though Florida used to define “secondary” education in a way that clearly encompassed middle schools in addition to high schools, members of the Lake County School Board recently and successfully lobbied the state legislature to remove that definition (apparently as part of their effort to block the GSA). State law now contains conflicting statements on the issue.
Based on the latest court filings, it’s clear that the ACLU still has a much stronger argument on this point than the school board; that is, middle schools provide “secondary” education in Florida, despite the changes to state law. Nevertheless, because there is no crystal clear guidance on the issue from state statutes or an appellate authority, a judge could get this wrong. If he does get it wrong, the Equal Access Act will not protect the Carver GSA (unless he changes his mind at a later stage of the litigation or an appellate court reverses him).
Even without the Equal Access Act, though, students have constitutional rights to free speech at school, including the right to form official non-curricular clubs in certain circumstances. Here, again, the ACLU has a compelling legal argument that the law requires the district to allow the GSA and to treat it the same as other non-curricular clubs.
But this is where we run into the second problem making the result hard to predict: A judge may think that middle school students, unlike high school students, don’t have the right to form a GSA. This would be a legal error in my view; indeed, the landmark Supreme Court case recognizing student free speech rights in 1969 (a case known as Tinker) involved students in both high school and middle school. Still, major student speech cases since Tinker have mostly involved high schools, and there’s a risk that the judge might make too much of that fact and decide to restrict middle school students’ speech. To be clear, I’m not arguing that judges should never distinguish between middle and high school students; it might very well be the case that high school students have (and should have) greater constitutional rights. But middle school students still have some substantial free-speech rights (as Tinker unambiguously recognized), and there’s no difference between high school and middle school students that would justify differential treatment in the context of a GSA. Fortunately, the ACLU has submitted powerful arguments on these issues.
(Incidentally, I don’t know much about the specific judge hearing the case, Senior District Judge Wm. Terrell Hodges. He certainly has experience: President Nixon appointed him to the federal bench in 1971.)
The Board’s Misleading, Offensive & Sloppy Legal Filing
Though a close look at every legal issue is beyond this post’s scope, it’s worth highlighting a few ways in which the Lake County School Board has embarrassed itself in its latest filings.
The argument that “[s]exuality” and bullying (!) are too controversial to discuss:
The board argues that it may restrict student speech about “[s]exuality, including homosexuality and bullying based upon sexual identity,” because these are “‘controversial’ topic[s] likely to cause significant disruption in the educational community, particularly in the middle school setting.” In other words, the board believes that student groups that aim to reduce bullying and support victims of bullying are too controversial to be allowed at a middle school if the victims are singled out because of anti-LGBT bias.
This is sickening and frightening (though it’s also perfectly consistent with the board’s prior actions). The school board not only refuses to adequately tackle anti-LGBT bullying, but it insists on thwarting student efforts to help victims as well. Never mind the victims, the school board says; the problem is too “controversial” to even talk about. This utter lack of compassion is terrifying. (By the way, if a bullied student ever sues the school district for ignoring anti-LGBT harassment, the board’s statements here will come back to haunt it. The board is demonstrating precisely the sort of deliberate indifference to anti-LGBT bullying that has cost other districts hundreds of thousands of dollars.)
There are other problems with the board’s argument as well. For example, the Supreme Court established in Tinker that schools can’t restrict speech based on abstract fears that it might be controversial or disruptive: Vague or “undifferentiated fear or apprehension of disturbance,” the Court held, is not enough to overcome the right to freedom of expression.” Notably, the Lake County School Board cites no actual evidence that disruption will take place, much less “significant disruption.”
Finally, it seems quite a stretch to say that “sexuality” is itself “controversial.” Is heterosexuality controversial? Are teachers in Lake County careful never to mention there different-sex spouses for fear that news of their heterosexuality will cause a disruption? Is speech about heterosexuality among students (e.g., conversations about marriages between men and women) censored? Or is this really a case about singling out and discriminating against gay-inclusive speech? We know the answer.
The claim that the GSA will engage in “sexual” “advocacy”:
Objecting again to the content of the GSA’s expression, the school board argues that “[c]ourts have held that school’s [sic] efforts to prevent ‘advocacy’ in classroom activities, religious, political or even commercial (and in this case, sexual), is a legitimate educational purpose, particularly given younger students’ impressionability.” Sexual advocacy? I don’t know what the board means by that, but it has no basis in what the proposed GSA would actually say or do.
The GSA’s mission, as set forth in its club application, is
(1) to create a safe, supportive environment at school for students to discuss experiences, challenges, and successes of LGBT students and their allies
(2) to create and execute strategies to confront and work to end bullying, discrimination, and harassment against all students, including LGBT students [and] (3) to promote critical thinking by discussing how to address bullying and other issues confronting students at Carver Middle School.
Where is the sexual advocacy? It’s not there. (By the way, the GSA’s speech is not, as the board’s filing inexplicably suggests, occurring in the “classroom,” but rather in a non-curricular club.)
As I’ve explained in other posts, moreover, federal courts have repeatedly rejected the notion that GSAs’ speech or other LGBT-supportive expression is “sexual.” In one case in Florida, for example, a federal court rejected a school’s argument that a GSA’s messages were incompatible with the school’s abstinence-only curriculum: The school “has failed,” the court held, “to demonstrate that the GSA’s mission to promote tolerance towards individuals of non-heterosexual identity is inherently inconsistent with the abstinence only message [the school] has adopted. [The school] has not clarified how dialogue promoting tolerance towards non-heterosexual individuals is antithetical to principles of abstinence.” In another federal case in Florida, a court rejected the argument that the presence of middle-school students could justify censorship of LGBT-supportive speech. The pro-LGBT students’ “innocuous expressions of tolerance and acceptance,” the court held, were appropriate for youth of middle-school age.
Failing to read the cases it cites:
Citing the supposedly “controversial” nature of the GSA’s (anti-bullying) speech, the school board relies on the following statement from a 1972 appellate case called Shanley: “If the content of a student’s expression could give rise to a disturbance from those who hold opposing views, then it is certainly within the power of the school administration to regulate the time, place and manner … with even greater latitude of discretion.”
This is an egregiously improper use of Shanley. The Shanley court was merely saying that a school in such circumstances could regulate the “time, place, and manner” of speech—not that the school could altogether censor or even disfavor a particular viewpoint or set of ideas based on discomfort with their expression or unsubstantiated fears of disturbance. In fact, Shanley emphatically held in favor of student free speech rights, stating that “students who would reasonably exercise their freedom of expression should not be restrained or punishable at the threshold of their attempts at expression merely because a small, perhaps vocal or violent, group of students with differing views might or does create a disturbance“ (emphasis added). In other words, when faced with students causing a disruption in response to lawful speech, schools need to punish those engaged in the disruption, not those peacefully expressing themselves.
By relying on Shanley for essentially the opposite proposition, the Lake County School Board misleads the court.
Consistent with other cases, Shanley also emphasized that “there must be demonstrable factors that would give rise to any reasonable forecast by the school administration of ‘substantial and material’ disruption of school activities before expression may be constitutionally restrained” (emphasis added). As the ACLU’s briefs argue, there are no such “demonstrable factors” here. In short, Shanley supports the ACLU’s arguments, not the school board’s. The board’s attorneys either failed to read it or have deliberately misrepresented it.
The suggestion that middle school students don’t know how to express themselves:
In an attempt to portray the Carver Middle School students as too young to handle messages about anti-LGBT bullying, the school board argues that “like elementary students, middle school students are typically in the age range of 11-14, some not even newly teenagers, and the young students are just beginning to acquire the means of expression.” Huh? This is very confusing. First of all, elementary school students are not part of this case. (They are also not “in the age range of 11-14,” as the board weirdly claims.) So let’s not talk about elementary school students. Second, is the board really saying that middle school students “are just beginning to acquire the means of expression”? What? Have board members or their attorneys tried talking to any middle school students? They would quickly learn that children ages 11-14 are quite able to speak, write and express their opinions!
Stayed Tuned (and Related Links)
Stay tuned for updates as the case unfolds. In the meantime, you can scroll down or click here to see a full list of Youth Allies posts about the Lake County controversy. I’ve also listed some related posts by blogger Katy Bourne. And further below, I’ve included links to the court papers in the ACLU’s latest lawsuit.
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Earlier Youth Allies Posts on Lake County:
Posts marked as “popular” are simply those that have tended to attract more readers. A full and up-to-date list of Youth Allies posts on Lake County is also always available here.
- Lake County School District Still Failing to Protect LGBT Students & Their Allies (July 2013) (Popular post)
- Too Young to Be Straight? (May 2013) (Popular post)
- Gay-Straight Alliance Updates: Lake County (Victory!), Polk County (Victory) & Fort Worth (Progress!) (May 2013)
- Lake County School Board Member Questions 14-Year-Old Student’s Sexual Orientation (April 2013) (Popular post)
- After School Board Blocks Gay-Straight Alliance, Board Member Tells LGBT Youth Allies, “The Board Has Not Blocked the GSA.” (April 2013) (Popular post)
Katy Bourne Posts on Lake County:
Katy Bourne is a passionate writer (and jazz singer too!) who has blogged several times about the GSA controversy in Lake County. Her posts: