Laws Supporting Discussions and Groups
If Your Child is Prevented from Talking about Gay and Lesbian Issues
People who oppose the discussion of lesbian, gay, bisexual and transgender issues in the classroom often argue that such discussions are inherently sexual in nature and, therefore, inappropriate in a school setting. But in the December 1999, U.S. District Judge Bruce Jenkins powerfully rejected that argument. In a ruling on a student club formed to discuss these issues in a curricular context, Jenkins wrote:
"It would be naïve at best to assume that expression of such views necessarily would involve the advocacy or even the description of particular sexual behavior or practices. Concerns about discussion of human sexuality in the public school setting have little bearing upon a discussion of the role of gay and lesbian persons in the Holocaust, or the orientation of various historical or literary figures and its impact upon their lives and work." (East High Gay/Straight Alliance v. Board of Education, No.2:98CV193J)
The U.S. Supreme Court also has repeatedly made clear its commitment to protect the constitutional right to free speech in school. That means that while school officials have the right to control disruptive, harassing or intimidating speech, there also are broad protections of students' rights to discuss issues some within the school community may prefer they not discuss, such as homosexuality.
Among some recent examples:
- The U.S. Supreme Court ruled that students in a New Hampshire school could wear armbands protesting school policies against "promoting homosexuality." The students won by referring to a 1969 Supreme Court case, Tinker v. Des Moines Independent Community School District, 393 U.S. 503, in which the court ruled that a decision to suspend students for wearing anti-Vietnam war armbands was a violation of their free speech rights.
- A federal judge in Utah ruled in the 2000 case, East High School Prism Club v. Seidel, that discussions of gay issues, history and lives cannot be deemed inherently unrelated to school curriculum. Judge Tena Campbell also ruled that, generally speaking, school administrators were restricted in their ability to limit what students read or talk about in the classroom.
- The First Amendment has also been invoked to ensure the right of gay students to bring same-sex dates to the prom. For example, in the 1980 case Fricke v. Lynch, a federal court in Rhode Island held that a male student's decision to bring a male date to the prom was a form of "symbolic speech," and that he had to be allowed to participate in student activities on the same basis as his peers.
If Your Child is Prohibited from Joining a Gay-Straight Alliance
Gay-straight alliances often provide a vital forum and safe haven for gay, lesbian and straight students dealing with homophobia or simply seeking a place to talk about the ways in which gay issues affect their lives. In some schools, however, students seeking to create these groups face resistance from administrators who are unwilling to grant them the same status as other student groups. But there is a law that may help those who are blocked from creating such a place to talk.
The Equal Access Act. The Equal Access Act of 1984 states that "it shall be unlawful for any public secondary school to deny equal access or fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical or other content of the speech at such meetings."
This law applies to public secondary schools that meet two criteria:
- They receive federal financial assistance, which would include most public schools
- They have what Congress has termed "a limited open forum."
Technically, a limited open forum exists when the school allows any "non-curricular" student clubs to meet on campus. But the issue of "curricular" vs. "non-curricular" student clubs can be a complicated one.
For example, rather than allowing gay-straight alliances as required under the Equal Access Act, at least one school has banned all non-curricular clubs. Schools that go to such extremes, however, cannot then selectively designate which clubs are "curricular" and "non-curricular" in order to reinstate less controversial groups.
Case in point: In Salt Lake City, East High School students sued their school district for taking just such a step. They redefined their club's mission to relate more directly to the school curriculum and in April 2000, a federal judge ruled that their club was sufficiently related to courses at the school to be defined as curricular, and that the district must allow the students to meet as a recognized club. (For more information, read the Lambda Legal's article on "Defending Gay/ Straight Alliances.")
Salt Lake City notwithstanding, however, most schools have allowed gay-straight alliances, even if they are opposed to them, once they understand that the Equal Access Act would prevent them from banning one.
Going Beyond Gay-Straight Alliances to Make Schools Safe for Lesbian, Gay, Bisexual, and Transgender Students is a report on the benefits of gay-straight alliances in schools, published by The Institute for Gay and Lesbian Strategic Studies.
