Across the country, students are forming "Gay-Straight Alliance" (GSA) clubs — organizations designed to bring together LGBT students and straight allies in a safe space to address tough issues like the disproportionate share of harassment and bullying directed at LGBT teens.
And across the country, school boards are shutting them down. In public high schools where non-curricular student clubs abound, rejecting students’ request to form a club to address the needs of LGBT students is not only a bad idea, it’s also illegal.
This resistance to student-created GSAs flies in the face of the federal Equal Access Act. The act, passed in 1984, requires federally funded secondary schools that permit meetings on school premises of any non-curricular student groups during non-instructional time to provide equal access and privileges to all student groups. (See 20 U.S.C. § 4071.) The congressional proponents of the bill envisioned it as a way to protect the rights of Christian student groups that wished to meet and pray at school, but the act outlaws discrimination on the basis of a student group’s political or philosophical viewpoint or content as well as religious discrimination. The act has just three narrow exceptions that preserve a school’s ability to maintain order and discipline, protect the well-being of students and faculty, and ensure that attendance at student group meetings is truly voluntary.
The Equal Access Act analysis is so clear when it comes to GSAs — and the resistance to the formation of GSAs so widespread — that in 2011, the U.S. Department of Education issued an open letter to school administrators about the act’s applicability to GSAs, noting that "school officials may find it helpful to explain to the school community that the Equal Access Act requires public schools to afford equal treatment to all noncurricular student organizations, including GSAs and other groups that focus on issues related to LGBT students, sexual orientation, or gender identity."
Yet today, the American Civil Liberties Union continues to receive reports that school boards are voting to disallow GSA clubs, often with the full knowledge that their actions violate federal law. The ACLU of Pennsylvania has had to step in to protect LGBT students and their allies four times in recent years after various Pennsylvania school districts refused to allow GSAs, in spite of the clear legal mandate of the Equal Access Act.
This familiar scenario played itself out again recently at the Chambersburg Area Senior High School. Students banded together to form a GSA, drafted bylaws and presented them to the school board for official approval, as all school clubs at the high school are required to do if they want to be able to use school facilities for meetings and bake sales, advertise their events on school bulletin boards, and participate in the school’s "Color Day" like other student groups. The school board first tabled the GSA’s request for official approval, citing a problem with the club’s bylaws. The students cured the defect, and renewed their request for official club status at a board meeting on February 27.
The board voted 5-4 to reject the GSA’s application.
The minutes of that board meeting offer no insight into why five board members voted not to allow a GSA at the high school. No one at the meeting spoke out against the formation of a GSA.
And, several community members voiced support for the club. A teacher at the school and proposed faculty adviser to the GSA observed that "students need a place to talk safely" — particularly LGBT teens who don’t have anyone at home or in their lives who understand and support them. A graduate of the high school commented on the disenfranchisement of the LGBT community and urged the board to "stop the indifference. Give them their club." A community member observed that the high school in a neighboring district had a GSA even though it was smaller and less diverse than Chambersburg. "Do not promote ignorance by voting ‘no,’" she urged, adding that "narrow-minded viewpoints seem to be pervasive on this board." A pastor from a nearby town urged the board to approve the club for the good of the students and the good of the school.
The board was also told that LGBT teens are three times more likely than their peers to commit suicide. And it was told that the Pennsylvania School Board Association had acknowledged that federal law requires public schools that allow some students groups to use school facilities and resources to provide equal access to GSAs.
And a majority of the board members still voted no.
On March 12, the ACLU and Equality Pennsylvania sent the Chambersburg Area School Board a letter on behalf of students involved with the GSA explaining the requirements of the Equal Access Act and asking the school board to reverse its decision.
The letter attempted to impress upon the school board the idea that allowing GSAs is good policy from an educational and safety perspective, as well as a legal duty for schools that had already opened its doors to other student groups. As Amber Fogelsonger, student president of the Chambersburg Area Senior High School GSA, put it: Approval of the GSA would "give us the safe haven we and all students — gay or straight — need and deserve." Another student at the school explained that the club could make worlds of difference to her: "As a transgender student, it has been very hard for me to find friends and I have to hide my true self. I hope the GSA club will give me the opportunity to talk to other understanding students about who I am so I can learn how to be myself with everyone at school and make new friends."
As the Chambersburg GSA students waited for the school’s response to the demand letter, it was not at all clear what kind of reaction to expect, or how the board might seek to justify a continued refusal to allow the club.
This scenario has played out several different ways in other school districts that voted to prevent students from forming GSAs. Some school board members have cited concerns that it is inappropriate to allow the open discussion of issues related to sexual orientation in schools. Other school board members have couched their disapproval in apparently neutral terms, such as claiming that GSAs are under the control of an outside group or organization. (They’re not.) Still other school boards have voted to get rid of student clubs altogether rather than grant a GSA any privileges or rights.
Rejecting a student club based on disapproval of the political content of the club’s discussions is, of course, squarely within the ambit of what the Equal Access Act prohibits. But it’s not all the act prohibits. The refusal to allow a GSA can still run afoul of the act even if motivated by seemingly content-neutral reasons, whether or not those reasons are actually pretext for discrimination. The act broadly compels equal access and offers only a short list of reasons a school board can refuse to provide a student club with the rights and privileges enjoyed by other clubs.
On March 27, the Chambersburg school board relented. Well, sort of.
At its regularly scheduled meeting, the board revisited its earlier vote. One of the members who had previously voted against the GSA switched sides, creating a 5-4 vote to approve the GSA. He explained that he and the other board members who had voted initially to reject the club had been motivated by a benign belief that the GSA would be duplicative of the existing "Multicultural Society" at the high school. In other words, the "no" vote meant that one club aimed at issues related to diversity was enough. Never mind that the school board had no problem supporting both a Bible Club and a Fellowship of Christian Athletes at the high school. And never mind that "one diversity club is enough" isn’t a sufficient justification for banning GSAs under the Equal Access Act, and that their counsel reportedly told them so.
Even after uniform expressions of support for a GSA and statements about the need for a GSA from the community, negative press attention throughout the region and the country in reaction to the board’s initial vote to reject the club, and the threat of legal action by the ACLU and Equality Pennsylvania, four school board members still voted "no."
For the "benign," "neutral" reasons offered by the board member who changed his mind? Maybe. They didn’t say. They just said "no."
Voting to preclude students from forming a GSA club at school rarely comports with the Equal Access Act, and it isn’t ever an acceptable response to expressions of concern about the safety and well-being of LGBT students. When it comes to giving student Gay-Straight Alliance clubs equal access to the privileges enjoyed by other student clubs, just saying "no" is both illegal and unwise. •
Molly Tack-Hooper is a staff attorney at the American Civil Liberties Union of Pennsylvania, where she focuses on civil liberties in Central Pennsylvania and on immigrants’ rights.