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Students trying to form clubs have free speech, law on their side

Inside the First Amendment

By Charles Haynes
Senior scholar, First Amendment Center

02.02.03

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Free speech for me — but not for thee.

That’s the message we’re hearing from a growing number of school districts around the country where administrators appear to be working overtime to ban student groups they don’t like — or fear might spark controversy in the community.

Banning unpopular speech isn’t a “left vs. right” issue. Opposition to free speech can come from both ends of the ideological spectrum. Two lawsuits filed last month illustrate the problem.

School officials in Colorado’s Boulder Valley School District (a fairly liberal area of the state) are charged with refusing to allow students to form a Bible club — even though the high school already has a Gay-Straight Alliance, Peace Jam, Amnesty International and many other student groups.

Meanwhile in decidedly more conservative Klein, Texas, the school district is being sued for denying high school students the right to form a Gay-Straight Alliance — even though there are many existing extracurricular groups, including one for Christian athletes.

Fortunately, support for the First Amendment also comes from both the right and the left. The American Center for Law and Justice, founded by Pat Robertson, is representing the Colorado students while the American Civil Liberties Union has taken up the cause of the students in Texas.

Of course, this would be a much better free-speech story if it were the ACLJ defending the rights of the Gay-Straight Alliance and the ACLU fighting for the Bible club. But never mind — at least they’re both fighting for the First Amendment.

The students should easily win both of these cases if the school districts are foolish enough to actually go to trial. Why? Because the right of students in public secondary schools to form clubs with a wide variety of religious and political viewpoints has already been established by the Equal Access Act — passed by Congress in 1984 and ruled constitutional by the Supreme Court in 1990.

Under the act, public secondary schools don’t have to permit any student-initiated extracurricular clubs. But if the school allows one or more “non-curriculum-related student clubs,” then it may not deny equal access to “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.”

School officials in Boulder Valley claim that the Equal Access Act isn’t triggered by denying the Bible club because all existing clubs in the high school are “curriculum-related.” They argue that the Gay-Straight Alliance, for example, is permitted because sexual orientation is covered in health education and diversity classes.

But the courts are unlikely to agree. When it upheld the constitutionality of the law, the Supreme Court explicitly defined what is and isn’t a curriculum-related club. The Court noted that “a French club would directly relate to the curriculum if a school taught French in a regularly offered course or planned to teach the subject in the near future.” The Court went on to warn that a school district cannot defeat the intent of the law by defining “curriculum-related” in a way that results in giving only those clubs approved by the school an opportunity to meet.

If Amnesty International is curriculum-related (because human rights issues are discussed in social studies), then the Bible club would be as well (since the Bible is discussed in history classes). But under the Equal Access Act as interpreted by the Supreme Court, both are clearly noncurriculum-related student groups. Thus if the school allows one, it must permit the other.

Administrators at Klein High don’t even try to disguise the fact that the school already has dozens of extracurricular clubs. But they have been dragging their feet for months on the student request to form the Gay-Straight Alliance. It’s very likely that a court will order Klein to either permit the club to meet — or shut down all of the other student extracurricular clubs.

If Klein and Boulder Valley keep the forum open, does that mean the high schools must allow any club that students want to form? No. Public schools are free to prohibit any club activities that are illegal or that would cause substantial disruption of the school. But students can’t be denied equal access simply because their ideas are unpopular. (Comprehensive guidelines on how to interpret the Equal Access Act may be found at www.firstamendmentcenter.org.)

Nineteen years of fighting over student clubs is long enough. This is settled law. It’s time for school districts to stop playing games with equal access and get about the business of doing what the law requires.

The majority in Boulder Valley may not want a Bible club just as the majority in Klein may oppose a Gay-Straight Alliance. But equal access isn’t a popularity contest. And the right to free speech isn’t up for a vote.

Your questions and comments are welcome. Write to:
Charles Haynes
The Freedom Forum First Amendment Center
1101 Wilson Blvd.
Arlington, VA 22209

E-mail: chaynes@freedomforum.org

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