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Ricky Waite recalls his struggle as a young teenager to accept the fact that he is gay. “Before I came out, anything I ever heard about gays was they were horrible people — child molesters, drug addicts, sex fiends — and I thought, ‘I’m not any of that, so how could I possibly be gay?’ “ A few years later, Waite, now 18, accepts his homosexuality. Now he’s hoping others will accept a club he helped start last year for gays and lesbians at Lubbock High School. So far, they haven’t. Providing students a place where they can discuss their fears and concerns with each other is one reason to have clubs such as the Gay Straight Alliance (GSA), Waite says. But in September 2002 when Waite — a senior at the time — and other students started the GSA (originally called Gay and Proud Youth) asked to post fliers at Lubbock High about the club’s meetings, Lubbock Independent School District (LISD) administrators said no. Waite says he addressed the LISD board of trustees in November 2002 and requested to hold the club’s meetings on the school campus. The students also put their request to the school board in writing, he says. LISD again told the students “no” in December 2002, he says. Not recognized as an official club by the district and not allowed to meet on school property or even post at the high school notice of off-site meetings, GSA continued as a nonschool-sponsored club and met in members’ homes, area coffee shops and even once at the Lubbock Animal Shelter. “It frustrates me,” Waite says. “We explained what the group was about, what we were trying to accomplish, what would go on at the meetings.” Waite graduated in May this year, but GSA’s struggle with the district continued. Even though he is a former student of Lubbock High, Waite still is involved in the 20-member GSA. This year, the students — aided by the New York-based Lambda Legal Defense and Education Fund, a national gay rights organization, and five attorneys with Baron & Budd in Dallas — took the district to court. In July, the GSA and two current students filed Caudillo, et al. v. Lubbock Independent School District, et al. in the U.S. District Court of the Northern District in Lubbock. Past and present LISD administrators, along with the district, are named as defendants in the suit. The students and the administrators/district have filed motions for summary judgment, and responses to those motions are due to be filed with Judge Sam Cummings by Nov. 10. “This suit and this case is about the right of kids to get together and talk,” Lambda Legal staff attorney Brian Chase of Dallas, lead counsel for the students, told a crowd of approximately 150 people who turned out on Oct. 28 for a town hall meeting about the reasons why the students want a GSA. “These kids are incredibly brave,” Chase said during the approximately hour-long meeting held at nearby Texas Tech University School of Law. Among the students who spoke at the gathering was Mirah Curzer, a 16-year-old Lubbock High senior who is not gay but is a member of the GSA and a plaintiff in the suit. “This is everybody’s fight, not just for gay people by gay people about gay things. This is about justice, which matters to everybody,” Curzer, a semi-finalist for a National Merit scholarship, said. Anne Epstein, Curzer’s mother and a physician in Lubbock, says in an interview that it was entirely her daughter’s idea to join the GSA. “This is certainly in accord with everything we have taught her and our values, however,” says Epstein, who attended the meeting with Curzer’s father, Howard, a psychology professor at Texas Tech. Walter Huffman, dean of the Texas Tech law school, says in an interview that he believes it is important for meetings of this type to be held at the school. “These kinds of issues are both important to the community and important to the educational experience of our law students,” Huffman says. “The issues associated with this are primarily legal issues.” Among the sponsors of the meeting was the Lambda Legal chapter at Texas Tech. No one from the school district or its legal team spoke at the meeting. Ann Manning, attorney for the district and a partner in Lubbock’s McWhorter, Cobb and Johnson, declines to be interviewed about the suit while the summary judgment motions are pending. Kevin McHargue, a shareholder in Baron & Budd, says in an interview that Caudillo is one of the most satisfying cases he has worked on as a lawyer. “I admire these students just for their bravery and persistence. They’ve been told ‘no’ so many times, and they just won’t give up,” McHargue says. Chase says Caudillo is the first case to be handled by Lambda Legal’s Dallas office, which opened in the summer of 2002. Waite, who works as a cook in an Italian restaurant, says the students affiliated with the GSA contacted Lambda Legal in January after a supporter suggested that the organization could help. Monty Sullivan, an associate with Baron & Budd, says he had been helping Lambda Legal with other activities when he learned about the suit in Lubbock. Sullivan says Baron & Budd allows its attorneys to do quite a bit of pro bono work and supported the idea of getting involved in Caudillo. Other Baron & Budd associates who are working on the case are Carla M. Burke, Scott L. Frost and Chris J. Panatier. Similar suits have been filed elsewhere in Texas and around the nation. In January, the American Civil Liberties Union Lesbian and Gay Rights Project filed Dukler v. Klein Independent School District on behalf of a student after school officials delayed giving students an answer when they asked to form a GSA at Klein High School, located in the Houston area. The suit, filed in the U.S. District Court for the Southern District in Houston, never went to trial. ACLU cooperating attorney David George, a partner in Houston’s Edwards & George, says the district settled the suit in March and agreed to allow the students to form the GSA. David Feldman, a partner in Feldman & Rogers in Houston, who represented the school district, did not return two phone calls seeking comment before presstime. “There’s no case [over a GSA] that we’ve ever seen [in the nation] that the plaintiffs have ever lost,” George says. In 2000, officials for a California public school system decided to settle Colin v. Orange County Unified School District after the U.S. District Court for the Central District of California granted a preliminary injunction that allowed a GSA to continue meeting at El Modena High School until the suit could be heard, according to the GSA Network Web site. Like the suits against the Klein ISD and the Orange County school district in California, a key issue in Caudillo is whether the LISD’s refusal to allow the GSA to meet on a school campus or even to post fliers about the meetings at the school violates the Equal Access Act, 20 U.S.C. � 4071. Under that law, it is unlawful for any public secondary school that receives federal funds and allows one or more noncurriculum-related groups to meet to deny students a right to conduct a meeting that fits within the scope of the limited open forum on the basis of the religious, political, philosophical or other content of the speech at such meetings. The Caudillo plaintiffs also allege in their original complaint that the defendants’ actions deny the plaintiffs’ rights under the Civil Rights Act of 1871, 42 U.S.C. �� 1983 and 1988, and that the defendants’ discriminatory actions deny the plaintiffs’ rights under the First and 14th Amendments of the U.S. Constitution. Chase says Congress enacted the Equal Access Act in 1984 to ensure that Bible study groups could meet in the schools. The impetus for the law, Chase says, was a 5th U.S. Circuit Court of Appeals decision in another case against the Lubbock ISD. In 1982, the 5th Circuit held in Lubbock Civil Liberties Union v. Lubbock Independent School District that the district’s policy of permitting students to gather at school for religious meetings was unconstitutional. In 1983, the U.S. Supreme Court refused to grant certiorari. LISD and the school officials argue in a brief supporting their motion for summary judgment that the district’s policy is based on exceptions to the Equal Access Act. According to the brief, the act “specifically allows the school district to restrict access for the well-being of students and to maintain order and discipline.” The defendants allege in their brief that the purposes of GAP Youth, the predecessor of GSA, were based on sex and sexual activity. That argument is based in part on information regarding same-sex sexual activity allegedly available through a link on the GAP Youth Web site. NOT RECRUITING Mark Griffin, president of the Lubbock School Board, says in an interview that while the U.S. Supreme Court struck down the Texas sodomy law in Lawrence v. Texas, decided in June, a law still on the books — Texas Penal Code � 21.11(a) — prohibits same-sex sexual conduct by persons 17 or younger. “Based upon the information we had received, they [the GSA] had propounded sexual activities,” Griffin, an attorney for his family’s truck stop enterprises, Rip Griffin Cos., alleges of the GSA. In the district’s opinion, there also have been efforts aimed at “recruitment” of students to the gay life style, he alleges. Waite says students in the GSA don’t encourage sexual conduct or recruit other students. “We don’t go to people and say, ‘How do you feel about this, this, this and this? Well, then, you might be gay.’ They’re looking for us,” he says of the students who join GSA. Griffin also says that allowing the GSA to meet on a school campus would be inconsistent with the district’s abstinence-based sex education policy and would open the door to other groups. “If a heterosexual group wanted to come in and have a safe-sex club, it [the district's policy] would be the same,” he says. Jack Clemmons, LISD’s former superintendent who is a defendant in Caudillo, says in an affidavit filed with the federal court in Lubbock that his decision to deny the students’ request to form a GSA was based on the district’s compelling interest to provide an educational climate free from sexual context. “I would have denied other clubs whose basis was sex. I would have denied a Bestiality Club. I would have denied a Gigolo Club. I would have denied a Prostitute Club,” Clemmons says in the affidavit. Clemmons could not be located for comment. Griffin says that LISD’s arguments with regard to its right to protect the well-being of students presents an issue of first impression. The students argue in their brief responding to the district’s summary judgment motion that every court that has ever addressed the issue has concluded that the Equal Access Act requires public schools to treat GSAs the same as other clubs. In Colin, the federal court expressly considered and rejected the argument that a GSA would lead to sexual activity, the Lubbock students allege in the brief. Sullivan calls LISD’s arguments a “red herring” and alleges that the district is just trying to get around the Equal Access Act. “They’re hiding behind the guise of the abstinence policy and other laws to prohibit students from engaging in meetings that are protected by the federal law and the [U.S.] Constitution,” Sullivan says. “It’s not illegal to talk about sexual activity,” McHargue says. Sullivan says students can talk about many things that, because of their age, they can’t do. Students can’t own handguns but they can discuss gun laws, and while they can’t vote, students can talk about voting, he says. A spokesman for LISD, Skip Watson, says that all clubs in the district are associated with academics and that the district doesn’t have a list of the clubs. However, LISD’s Web site lists the Fellowship of Christian Athletes among the clubs at Coronado High School in Lubbock. Although the FCA isn’t listed on the Web site as one of the clubs at Lubbock High, posters advertising the Christian group’s meetings were hanging at two different locations in Lubbock High when a Texas Lawyer reporter visited the school on Oct. 28. Whether the FCA can be considered as tied to academics depends on how broad a definition is given to that term, Griffin says. Notes Griffin: “Reasonable people can draw varying conclusions.”

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