[3/28/13 UPDATE: The school district has reversed course and will allow the gay-straight alliance.]
Equality Pennsylvania and the American Civil Liberties Union of Pennsylvania have sent a demand letter to the Superintendent and School Board President of the Chambersburg Area School District in Pennsylvania, warning the school officials that the organizations will take legal action unless the school district allows students to form a gay-straight alliance (GSA). The district’s school board recently voted 5-4 to deny students’ request to form the club.
It is always frustrating to see schools engage in anti-LGBT censorship and discrimination. When it comes to GSAs, it’s also a bit surprising, given how clearly the law spells out students’ rights and school districts’ obligations.
The federal Equal Access Act (EAA), for example, provides that if a public secondary school accepts federal funding (as virtually all do) and allows extracurricular clubs to form, the school may not discriminate against any particular club based on the ideas or viewpoints that the club espouses or advocates. In other words, if a school covered by the EAA allows any extracurricular clubs, it can’t single out any particular club for less favorable treatment just because it disagrees with the club’s ideas. First Amendment cases establish similar principles that schools must respect. (Click here for a recent post discussing the laws in more detail.)
Is there any doubt that these laws apply to protect student-led GSAs? No, there isn’t. That’s part of what makes it so baffling that some school officials, like those in Chambersburg, continue to think they can get away with discrimination and censorship.
Victory for Gay-Straight Alliances in Case After Case
Students across the country have prevailed in case after case when they’ve sued to protect their right to form a GSA or to secure a GSA’s equal access to school facilities and school recognition. In some cases, schools have wasted enormous resources by refusing to recognize their students’ rights. The Osseo Area School District in Minnesota, for example, twice brought a case to a federal appeals court, hoping that the court would reverse earlier lower-court decisions mandating equal recognition of a student GSA; the district lost both appeals. (It’s especially unclear why the district brought the second of those appeals, given that the first appeal, which presented essentially the same issues, resulted in such a resounding defeat for the school.) In Okeechobee County, Florida, school officials made a costly decision to engage in a lengthy court battle against students seeking to form a GSA. Not only did the students and GSA prevail in that case, but the court ordered the school board to pay the plaintiffs $326,000 in attorneys’ fees. Elsewhere in Florida, students seeking to form a GSA free from discrimination have prevailed in lawsuits against the school boards of Marion County and Nassau County. Courts have also recognized students’ right to form a GSA in federal cases out of Georgia, Indiana, Kentucky, upstate New York, Orange County, California, and Utah.
I’m aware of only one real court victory for a school board on this issue, but the school’s victory was narrow and the court’s decision has not proven influential. The federal court in that case allowed a Lubbock, Texas, school to refuse recognition of a GSA in part because the GSA’s website contained direct links to sites that the school (and judge) found sexually inappropriate. Those unusual circumstances haven’t arisen in other cases, and at least two federal courts considering the rights of GSAs have declined to follow the Texas court’s reasoning. Indeed, in the nine years since the Lubbock case was decided, not a single court has followed the Texas court’s approach.
The Demand Letter May Do the Trick
Given this legal landscape, the Chambersburg Area School District may very well respond to the demand letter by allowing the GSA, even though it has so far refused to do so. This wouldn’t be unusual. In many cases, school boards and districts that initially refused to allow a GSA quite wisely (and quickly!) changed course after Lambda Legal, the American Civil Liberties Union, or a similar organization sent a demand letter on behalf of students. These sorts of letters, like the letter to the Chambersburg officials, typically note the benefits of GSAs and warn of the legal consequences of discrimination and censorship; they also usually threaten immediate legal action if the school does not comply with the demands. In recent years, demand letters have played a successful role in securing respect for students’ right to form a GSA in school districts in Arizona, Florida (in both Lake County and Pensacola), New Mexico, Texas, and elsewhere. Sometimes a school will hold off on allowing a GSA until a suit is actually filed: In West Bend, Wisconsin, for example, the school board allowed a GSA to form only after the ACLU filed a lawsuit in 2011.
Let’s hope that the the Chambersburg officials stop wasting everyone’s time and start respecting the rights and safety of all of their students immediately.
For more information on GSAs and students’ legal right to form them, check out this PDF resource from Lambda Legal or this webpage from the American Civil Liberties Union. For information on the benefits of GSAs, read this research brief from the Gay, Lesbian & Straight Education Network. The federal Department of Education has also advised school districts with respect to the benefits of GSAs and school districts’ obligations under the Equal Access Act: a “Dear Colleague” letter from the Department is available here, with more detailed Department guidance for school districts available in this Word document.
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