Meanwhile, the ACLU and Equality PA have granted the school district a short extension to respond to their demand letter.
[3/28/13 UPDATE: The school board has reversed course and will allow the gay-straight alliance to form.]
At the request of the American Family Association (AFA) of Pennsylvania, the anti-gay group Liberty Counsel has apparently contacted the school district in Chambersburg, Pennsylvania, regarding the district’s refusal to allow students to form a gay-straight alliance (GSA). As I reported the other day, the American Civil Liberties Union and Equality Pennsylvania sent a demand letter to the district, explaining the benefits of GSAs and warning that the organizations will take legal action on behalf of the students trying to form the GSA if the school board does not reverse course and allow them to do so.
According to an AFA “alert” posted on its website today,
[Liberty Counsel has] offered the district three options. However, at this time, the best option appears to be to change the board policy concerning clubs, requiring a signed parental permission form for any student to participate in any school club — no exceptions. Liberty Counsel has provided them with a sample policy.
(It’s unclear what Liberty Counsel believes the other two options are.)
In addition to reporting on Liberty Counsel’s involvement, the “alert” offers some confusing and misleading thoughts on the Chambersburg matter and the school’s obligations under the federal Equal Access Act. (For more background on the Act, see my earlier post.) On the one hand, the AFA appears to argue that the Equal Access Act does not require equal recognition of the GSA; the AFA’s alert points to language in the Act stating that “[n]othing in this [law] shall be construed to limit the authority of the school … to protect the well-being of students.” The AFA says that “[v]alidating a dangerous lifestyle such as homosexuality does not protect the well-being of students.”
The AFA fails to mention, however, that its reading of the Equal Access Act has not prevailed in the many court cases involving GSAs. Courts have not, for example, adopted the AFA’s nasty “lifestyle” stereotype. And as I explained in my earlier post, courts across the country (with one, uninfluential exception) have found that the Equal Access Act protects students’ right to form GSAs (provided that the school is otherwise covered by the Act, as most schools are). It’s a bit misleading for the AFA to offer up an interpretation of the Equal Access Act without mentioning that virtually no court has adopted it.
In any event, the AFA seems to be aware that its interpretation of the Act wouldn’t hold up in court. As noted above, the AFA does not really believe that the best option for the Chambersburg school district is to ban the GSA. Instead, the AFA alert says the district should “change the board policy concerning clubs, requiring a signed parental permission form for any student to participate in any school club — no exceptions.”
Incidentally, a permission-slip policy might be legal, but it’s bad policy. Students who most need the GSA—those facing an anti-LGBT environment at home—would likely be unable to join. Of course, the AFA would be pleased with that result. But those who favor a permission-slip policy should also consider that such a policy may not be easy to maintain. To be legal, it must be evenhandedly applied in all cases. If any student group is ever granted an official or unofficial exemption, then the policy becomes an illegal form of discrimination under the Equal Access Act (and the First Amendment), and the district could be taken to court. And you can be sure that the ACLU would monitor the district to ensure that it doesn’t create unfair exemptions for other groups or single out the GSA for stricter enforcement of purportedly neutral rules.
It remains to be seen what the district will do. The ACLU and Equality Pennsylvania initially demanded that the district respond to their demand letter by today, March 15. They’ve now extended the deadline to next Wednesday. The school district requested an extension until sometime in April, but the ACLU and Equality PA refused to wait that long.
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