It's Ironic That Some School Boards Are Not Educable on the Equal Access Act

Here's a bit of irony.  School Boards are constituted to operate our public schools, to impart learning to our youth.  And yet, in some parts of the country, it appears that School Boards need to go back to school to learn how to read and interpret the English language for themselves.  The federal Equal Access Act provides that so long as a public school allows non-curricular student clubs to operate and be officially recognized, it cannot discriminate based on the subject matter of the clubs with very limited exceptions.  So far, with one exception that is easily dismissed in light of the context, every judge to have considered the issue has concluded that students are entitled to form and obtain official recognition for Gay-Straight Alliances in public high schools so long as the schools allow other non-curricular clubs to function. 

I reported back in February that the ACLU had filed suit against yet another Florida school district in Nassau County, which was refusing to let students at Yulee High School form a Gay-Straight Alliance, and raised the question whether this was an issue of incompetent lawyering by the Board's counsel, or refusal of the Board itself to listen to sound legal advice. Gay-Straight Alliance of Yulee High School v. School Board of Nassau County, 2009 Westlaw 635966 (M.D. Fla., 3/11/2009).

Now, the predictable result.  U.S. District Judge Henry Lee Adams, Jr., today issued a preliminary injunction, which states: "a. Defendant shall, so long as it maintains a limited open forum under the EAA or a limited public forum under the First Amendment, grant official recognition and grant all privileges given other student organizations to the Gay-Straight Alliance of Yulee High School; b. Defendant shall not require the Gay-Straight Alliance of Yulee High School to change its name as a condition to official recognition; c. Defendant shall not interfere without legally justifiable cause as outlined in this order either with Plaintiffs' ability to advocate for tolerance, respect, and equality of gay, lesbian, bisexual, and transgender people or the other goals set forth in the Gay-Straight Alliance's constitution; d.  Defendant shall not retaliate against any student or staff member for their involvement in bringing this claim or for their involvement with the Gay-Straight Alliance; e.  Defendant shall distribute this Preliminary Injunction to all of its teachers and staff within 72 hours."

The school board's arguments in opposition to the request for injunctive relief are pathetic, when viewed in light of the case law.  Every argument they raised has been decisively rejected in published federal court opinions, some in the recent Okeechobee ruling involving another Florida public school district.  Of course, the U.S. Supreme Court hasn't taken up any of these "culture war" cases involving recognition of GSAs yet, but the unanimity of opinion, including opinions by very conservative district court judges in some cases, suggests that the statute is so clear and its application so uncontroversial among judges that the same results would pertain.  And, in light of the unanimity of opinion, the Supreme Court would not likely grant certiorari in such a case.

The only case on which the board could try to hang its hat is the bizarre outlier - Caudillo v. Lubbock Independent School District, 311 F. Supp. 2d 550 (N.D. Tex. 2004), where an incautious group of students put together a website for their proposed organization that contained links to sexually explicit materials, giving the judge a basis for deciding that the school board there had a good justification for refusing to extend recognition to the club.  "There are no concerns about an inappropriate website here," wrote Judge Adams, who also rejected the school board's argument that recognizing the club would undermine the district's abstinence-only sex education policy, an argument that Judge Adams noted had been rejected in Gonzalez v. School Board of Okeechobee County, 571 F.Supp.2d 1257 (S.D. Fla. 2008).  

As to the school board's insistence that the club go into the closet and use the name "Tolerance Club" instead of "Gay-Straight Alliance," the court found that no court has required a GSA to omit the G-word from its name in order to gain official recognition, and that this undermines one of the legitimate goals of the organization.   The court found no support for the school board's argument that letting the GSA use its preferred name would be disruptive, pointing out that in fact at one point the student group was allowed to have some meetings announced at the high school and the announcement produced no difficulties.

Does this really have to be litigated school board by school board?  At some point, shouldn't school board members prove capable of taking sound legal advice, and school board attorneys prove capable of giving it?