An update on the Orange County Gay/Straight Alliance court battle, from PlanetOut:
Tuesday February 08 03:07 AM EST
School Club Wins First Round
SUMMARY: A judge has ruled that having a Gay Straight Alliance meet in an Orange, California high school isn’t just a matter of tolerance for diverse viewpoints - for the students, it’s a matter of life and death.
The Gay Straight Alliance (GSA) won a court order to be able to meet like any of the other 38 student-initiated clubs at El Modena High School in Orange, California. However there are indications that the victory may be short-lived: the Orange Unified School District (OUSD) Board is meeting in closed session February 4 for what may turn out to be a vote to eliminate all “non-curricular” clubs rather than allow the GSA to meet.
Background on the Case
Two students, Anthony Colin, 15, and Heather Zetin, 16, submitted an application to their principal at the beginning of the school year in September. It was passed on to the OUSD administration and to the school board, which delayed action. The board also held an unprecedented meeting for public testimony about the club, which entailed the students hearing a stream of anti-gay remarks. Only after a federal lawsuit had been filed on behalf of the students in November did the school board finally vote, and then it was a unanimous decision in December to deny the GSA. The board believed it had found exceptions to the federal Equal Access Act and its own policies prohibiting viewpoint-based discrimination against non-curricular clubs: that the GSA was controlled by an “outside group,” the national Gay Lesbian Straight Education Network (GLSEN); and that despite students’ denials, GSA was actually curriculum-related in nature in that it was likely to discuss matters closely regulated as sex education under state law. The board offered GSA the option of choosing a name that included neither the word “straight” nor the word “gay” but was more generic, such as “Tolerance Club”; and of including in its mission statement a promise not to discuss sex, sexuality or sexually transmitted diseases. No other club has been required to make that vow.
In the wake of the December school board vote, the request for the current preliminary injunction was filed to allow GSA to meet on campus while its lawsuit is in progress, which will take months and possibly years. Representing the students were the Lambda Legal Defense and Education Fund, the People for the American Way Foundation and the law firm of Irell & Manella. In a relatively unusual move, U.S. District Judge David Carter heard three days of testimony regarding the injunction request, including testimony from Colin and Zetin. Near the end of the hearing, Carter read into the record some of the findings on anti-gay hate crimes and on gay and lesbian teens’ suicide risk that had been offered in support of California’s 1999 safe schools legislation. [Ed. note: That bill was enacted, and effective October 1 it added “actual or perceived sexual orientation” as a protected category in all non-discrimination policies of the state Education Code that apply to students. The OUSD is believed to have been the only school board in the state to adopt a resolution opposing that measure.]
The Preliminary Injunction Ruling
The criteria for awarding a preliminary injunction are both that the judge sees a strong likelihood that the party seeking it will ultimately prevail in its larger lawsuit, and that party will suffer “irreparable harm” if the injunction is denied.
Carter wrote that, “Plaintiffs [the students] have been injured not only by the board’s excessive delay [in reaching a decision on the club], but also by the inability to effectively address the hardships they encounter at school every day.” Given that those hardships include a high rate of anti-gay hate crimes and the high suicide risk faced by gay and lesbian students, he wrote that, “This injunction therefore is not just about the student pursuit of ideas and tolerance for diverse viewpoints. As any concerned parent would understand, this case may involve the protection of life itself.”
That being said, Carter was certainly also concerned about free expression. Citing an earlier decision, he wrote that, “public school students do not ‘shed their constitutional rights to freedom of speech or expression at the school house gate.’” And he admonished the school board that, "Though it may educate many of Orange’s students, the Orange Unified School District must not become an Orwellian ‘guardianship of the public mind.’’
Carter rejected the argument that the GSA was controlled by “outside” adults.
Reactions to the Ruling
The students were attending classes as usual when the decision was handed down, but Zetin’s very supportive mother Judy Anderson was present and expressed relief at the ruling. She told reporters that, “It’s about who these kids are. It’s about who they love. It’s not about sex.”
The students’ attorneys called the ruling “breathtaking.” Lambda Supervising Attorney Jon Davidson said in a statement, “Not only did Judge Carter rule that the students must be allowed to meet under the federal Equal Access Act, he also emphasized that El Modena High’s Gay Straight Alliance club is in the public interest.”
Davidson added, “These brave students are trying to build support and respect among their classmates.”
People for the American Way Foundation’s California office acting director Kendra Huard said, “With this case, the students have been forced to teach a big lesson to the very school officials who should be helping them protect their learning environment. Thanks to Judge Carter’s breathtaking ruling, that environment will be safer and fairer soon.”
People for the American Way Foundation president Ralph Neas said, “These students have been courageous in their fight for simple justice. Today’s decision will help them grow up believing in America’s promise: that everyone is equal in the eyes of the law.” The actions of the OUSD, he said, “have been both outrageous and sad. The school officials are charged with the sacred duty of protecting children and instead they are endangering children by helping to create a climate of bigotry, fear and ignorance.”
A small group of anti-gay demonstrators chanted and picketed outside the courthouse while Carter handed down his ruling.
The students’ full lawsuit against the OUSD is scheduled for a status conference with Judge Carter on March 27, with trial to commence after the close of the school year.
Background on the Law
The federal Equal Access Act was adopted in 1984 as Christian student groups sought to form on public school campuses. It offers schools three options: to allow all non-curricular clubs equal access to school facilities; to prohibit all non-curricular clubs; or to give up all federal government funding. The “Christian Science Monitor” reports that the first Gay Straight Alliance was formed by students in Massachusetts more than ten years ago, and that there are now more than 700 similar clubs in 42 states.
The most widely-reported conflict regarding a GSA was that of East High School in Salt Lake City, Utah, a struggle which at one point required a full day’s special session by the state legislature; the Salt Lake City school board decided to eliminate all non-curricular clubs rather than allow the GSA to meet.
Last year, a school board in New Hampshire decided by a one-vote margin to allow a GSA, only after the board’s legal counsel said that to do otherwise would mean spending up to $300,000 losing a lawsuit. [Ed. note: The lawsuit on behalf of the GSA in that case was filed by Gay & Lesbian Advocates & Defenders, a group which also participated in the recent Vermont Supreme Court marriage decision in the “Baker” case.]
Next time I want your opinion I’ll beat it out of you.
