Can and Should Middle Schools Allow Gay-Straight Alliances?

Supreme Court at dusk
The Supreme Court has long recognized high school and middle school students’ right to free speech.

Under the federal Equal Access Act, public high schools must allow students to form gay-straight alliances (GSAs) if the schools receive federal funds and allow any other extracurricular clubs on campus. The First Amendment provides similar protections.

But as students in younger grades increasingly speak out for LGBT equality, a new issue arises: Do public middle school students have a legal right to form GSAs too?

Courts haven’t directly addressed the issue, making it difficult to give a simple answer. Still, for most students, the answer is likely yes. And regardless of what the law provides, middle schools should allow GSAs.

Nevertheless, forming a GSA can be a struggle for middle school students, as fourteen-year-old Bayli Silberstein’s ordeal in Florida shows.

The Gay-Straight Alliance Controversy in Lake County

Bayli, an openly bisexual eighth grader at Carver Middle School in Leesburg, Florida, has been locked in a dispute with her local school board over the formation of a gay-straight alliance. As reported in earlier posts (see here and here), the Lake County School Board has considered various tactics to block, stall, or otherwise undermine Bayli’s proposed GSA.

Click here or scroll to the end of the page for a list of Youth Allies posts related to Lake County (updated February 2014).

This week, it seemed that the Lake County School Board was finally going to do the right thing by enacting a rule that would allow Bayli to form the GSA. Unfortunately, the board decided to stall yet again. It will now “workshop” the proposed rule on middle school clubs before making a final decision.

Safe Middle Schools, GSAs, the Equal Access Act, and the Constitution

To justify the delay, board members referred to a new state law that supposedly creates an ambiguity about whether a middle school counts as a “secondary school.” If a middle school isn’t a “secondary school” under state law, board members seem to reason, then the federal free-speech protections cited by Bayli and her attorneys at the American Civil Liberties Union of Florida don’t apply, and the school doesn’t have to allow the GSA.

The board members’ reasoning and resulting decision are terribly flawed.

1. The hyper-technical focus on the definition of “secondary school” entirely misses the more important issues at stake.

The Orlando Sentinel reports that board members “wanted to take more time to ‘workshop’ the rules in light of” changes to state law. But even assuming, just for the sake of argument, that applicable laws no longer require the district to allow the GSA, there’s nothing in the law that prevents school districts (in Florida or elsewhere) from allowing a middle school GSA if that’s what’s best for students. And that’s clearly what’s best for students here.

Middle school students are particularly vulnerable to bullying and harassment based on actual or perceived sexual orientation and gender identity. A comprehensive study of these issues by the Gay, Lesbian & Straight Education Network (GLSEN) found that “[o]n all of the indicators of school climate, middle school students fared worse than high school students” (emphasis added).

GLSEN has also released a Florida-specific research brief on these issues, warning that “the vast majority of LGBT students in Florida regularly heard homophobic remarks, sexist remarks, and negative remarks about gender expression”; that a majority of students who were assaulted or harassed “never reported it to school staff”; and that “LGBT students in Florida most often did not have access to in-school resources and supports.”

Finally, GLSEN’s research indicates that “GSAs can help to make schools safer for students and may play a role in mitigating the negative impact of bullying and harassment experienced by some LGBT students.” Other research has reached similar conclusions. And the federal Centers for Disease Control & Prevention has relied on research from GLSEN and other sources in recommending that schools encourage gay-straight alliances and similar clubs, which can “help promote health and safety among LGBTQ youth.”

Lake County School Board members need to face up to these facts and figures, rather than obsess over the technicalities of a state law that might (but probably won’t—see below) relieve them of their duty to protect their students by allowing a GSA.

2. The notion that middle school students are too young to talk about sexual orientation or gender identity is absurd.

Some Lake County school members apparently think that middle school students shouldn’t be discussing issues related to sexual orientation or gender identity. But this is, frankly, ridiculous.

First, students (and teachers!) discuss heterosexual orientation all of the time. Every time somebody mentions a different-sex spouse or significant other—whether it be, for example, a teacher’s husband or wife, a classmate’s boyfriend or girlfriend, or a relative’s fiancé—students are hearing about heterosexual orientation. So the idea that schools can shield students from exposure to sexual-orientation issues altogether is preposterous.

In reality, of course, school officials just want to block discussions of same-sex sexual orientation and transgender identity. But it’s outlandish to think that schools can shield students from these issues, which are, of course, all over the news and popular media to which students are routinely exposed. More importantly, countless students are either LGBT themselves or have family members or friends who are LGBT.

As the research mentioned above indicates, moreover, students in Florida regularly face these issues in their crudest and most vicious form—that is, in the form of anti-LGBT slurs and other attacks at school.

In light of all of this, what legitimate basis could a school have for denying students a safe space to address the questions and challenges they inevitably face when it comes to anti-LGBT intolerance, bullying and discrimination?

Florida Map on School Blackboard
Federal courts in Florida have affirmed students’ right to form GSAs.

Those opposing GSAs sometimes contend that the clubs promote or endorse sexual “activity.” As courts have recognized, these arguments rest on a misunderstanding of GSAs, which focus on issues of bullying and tolerance.

In a 2008 federal case in Florida, for instance, a school district suggested that allowing a GSA would be inherently incompatible with the district’s abstinence-only program; the school district also claimed that the GSA would “promote the premature sexualization of students.”

The court, however, rejected these arguments and ruled that students had a right to form a GSA: “[The district] has failed to demonstrate that the GSA’s mission to promote tolerance towards individuals of non-heterosexual identity is inherently inconsistent with the [district’s] abstinence-only message,” the court explained. The court was also “unable to discern how a club whose stated purpose is to promote tolerance towards non-heterosexuals within the student body promotes the premature sexualization of students.”

3. Even if state law is ambiguous, the Equal Access Act may apply to the middle school.

Even if the school doesn’t want to do the right thing here, the law probably requires it to allow the GSA anyway.

It’s true that the Equal Access Act—one of the laws on which Bayli and her ACLU attorneys have relied—only applies to “secondary schools.” The Act defines “secondary school” to include any school “provid[ing] secondary education as determined by State law.”

It also appears that a new Florida law, SB 1076, creates ambiguity about whether Florida middle schools provide “secondary education.” The new law removes one definition of “secondary school” without replacing it with a new one.

But even assuming SB 1076 creates ambiguity on the “secondary education” issue, the ambiguity isn’t as helpful to the anti-GSA school board members as they’d like to believe. In other contexts, courts have interpreted ambiguous legal provisions broadly to protect students’ rights under the Equal Access Act. The Supreme Court itself has adopted a “broad” reading of the Act, relying on “Congress’ intent to provide a low threshold for triggering the Act’s requirements.

In short, even if state law isn’t crystal clear on the “secondary education” question, the Equal Access Act probably still protects the middle school students’ right to form a GSA.

4. The First Amendment still applies.

Regardless of whether the Equal Access Act applies, the First Amendment’s Free Speech Clause prohibits school officials from singling out the GSA for disfavored treatment just because they dislike or disagree with its message. In the 2008 Florida case noted above, for example, the court ruled in favor of students trying to form a GSA, citing both the Equal Access Act and the First Amendment’s Free Speech Clause.

Granted, the long line of cases affirming students’ right to form GSAs dealt with high schools, not middle schools; this includes the 2008 case from Florida. But there can be no real dispute that the First Amendment protects middle school students’ speech as well. In the landmark 1969 Supreme Court case recognizing that the constitutional freedom of speech applied to students, the Court ruled in favor of all three students involved, one of whom was in middle school.

Some courts have suggested that even if middle school students have a right to free speech, the right isn’t as extensive as it is for high school students. That might be true. But there’s no difference between high school students and middle school students that would justify differential treatment of a GSA, which aims to combat problems like bullying and intolerance that affect youth of all ages (and their families).

Importantly, in another federal case in Florida, a court upheld students’ right to wear LGBT-supportive messages on their clothing; the court specifically rejected the argument that the presence of middle school students should allow for more censorship. The pro-LGBT students’ “innocuous expressions of tolerance and acceptance,” the court held, were appropriate for youth of middle school age.

*  *  *

If school officials aren’t going to work aggressively to remedy and prevent anti-LGBT bullying and harassment on their middle school campuses, they can at least let students take the lead on these issues by allowing them to form supportive student clubs like gay-straight alliances. If the school officials don’t even do that, then students like Bayli will likely take them to court. And the students will probably win.

Click here to see (and sign) an ACLU petition in support of Bayli Silberstein.


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*Nothing in this post, or anywhere else on this website, constitutes legal advice. See our Disclaimers for more information.

Youth Allies Posts Related to Lake County’s GSA Controversy (Updated February 13, 2014):