Can a School Ban All Student Clubs to Avoid Allowing a Gay-Straight Alliance?

Censorship Circle
Lake County school officials might try to ban all extra-curricular clubs

As I’ve noted in a couple recent LGBT Youth News Roundups (from February 18 and February 11), a school board in Lake County, Florida, is considering banning all extra-curricular student clubs in an effort to stop a student gay-straight alliance (GSA) from forming. Some readers may be wondering: Why would the school board ban all clubs? Would that legally make a difference? Can a school district legally ban a gay-straight alliance so long as it bans all other extra-curricular clubs too?

The answer to that last question is theoretically, in most circumstances, yes. But it’s an anti-gay strategy that usually falls apart anyway, as it should.

There are two main laws that protect students’ right to form extra-curricular clubs at school. The first is the Free Speech Clause of the First Amendment to the U.S. Constitution. The other is the federal Equal Access Act (EAA), which Congress enacted in the 1980s. These laws provide very strong protections to gay-straight alliances and other clubs, but there’s a catch: The legal protections generally only kick in if a school chooses to allow extra-curricular clubs in the first place.

[Update: Do the principles discussed in this post apply to middle schools? Generally, yes. For more information on the middle/high school distinction, read: Can and Should Middle Schools Allow Gay-Straight Alliances?]

In other words, under the First Amendment and the EAA, public schools don’t necessarily need to allow extra-curricular clubs, but once they do, they can’t discriminate. Indeed, once a school district decides to allow any extra-curricular club to form, it can’t discriminate against any other club simply because school officials disagree with the ideas or viewpoints expressed by the club. So if the school allows, say, a chess club, or a scuba club, or a pro-choice club, it has to let other extra-curricular clubs form even if the school officials don’t like the idea behind the other club. The only realistic way around this (and it’s not very realistic) is to ban all extra-curricular clubs. But again, if the school allows even a single exemption allowing any extra-curricular club to form, then the ban legally falls apart and the school must allow the GSA (and other clubs) to form.

It’s easy to see how schools that consider banning all extra-curricular clubs run into problems. Students and community members usually hate the idea. They might not all favor allowing a GSA, but they don’t want to see all extra-curricular clubs sacrificed simply to ban one club. Most proposals to ban all extra-curricular groups go nowhere for precisely this reason.

Sometimes schools resort to tactics that are a little more sneaky. They do this by claiming that certain student clubs are actually not extra-curricular but rather are “curriculum-related.” If a club is directly related to some part of the school’s official curriculum—that is, if it’s directly “curriculum-related”—then different legal rules apply: A school is allowed to discriminate among curriculum-related clubs. So if a school only allows curriculum-related clubs to form (for example, a French club related to the French curriculum), then the First Amendment and the EAA won’t protect students’ right to form a GSA.

The problem for schools trying to ban GSAs using this little loophole, however, is that school officials can’t just go around strategically labeling every other club “curriculum-related” and thereby avoid the law’s requirement that GSAs be free from discrimination. Courts have made abundantly clear that schools can avoid the law’s non-discrimination requirement only if the so-called “curriculum-related” clubs are actually related to the curriculum in some meaningful way. (A club might actually be curriculum-related, for example, if students receive credit for participation.) Courts have rejected school districts’ efforts to ban GSAs simply by calling every club except the GSA “curriculum-related.”

So Lake County school officials should be on notice: If they attempt to ban all extra-curricular clubs and allow only “curriculum-related” clubs, they can be sure that the lawyers for the students in the GSA will be carefully looking at all of the permitted clubs to make sure that they truly are curriculum-related. If even one permitted club is actually better characterized as extra-curricular, then the school must allow the GSA to form. Or face a lawsuit.

In an ideal world, the Lake County school officials would allow the GSA to form simply because it’s the right thing to do. But if they don’t come to their senses on what’s right, then hopefully they will at least realize that banning all extra-curricular clubs is a potentially difficult—and usually unpopular—thing to do.

MK

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Youth Allies updates and posts related to the Lake County GSA controversy (updated February 2014):