Not Your Parents' Breakfast Club: After-School Clubs, School Districts and Disaffected Groups

Phillip J. Trobaugh
(email)
Mansfield, Tanick & Cohen, P.A.
1700 U. S. Bank Plaza South
Minneapolis, MN 55402

Used with permission from The Hennepin Lawyer, membership publication of the Hennepin County Bar Association. E-mail: thl@hcba.org Phone: 612.752.6600

After school clubs continue to pose a number of legal issues and challenges to both School Districts and those seeking to establish such clubs. Most recently, after school clubs seeking to bring gay and straignt students together have raised a number of controversies and litigation nationwide, as well as here in Minnesota. Aside from the politics involved on both sides, the legal issues illuminate an important component of First Amendment jurisprudence.

These after-school clubs, sometimes referred to as "Gay-Straight Alliances" [i]("GSAs"), seek to bridge a gap of misunderstanding and hostility often facing gays in public schools. Opponents to such clubs challenge their establishment believing that clubs promote homosexuality and recruit new members. A number of school districts around the country have faced angry communities, parents and other interested groups who seek to prevent or shut down such after-school clubs: Ashland, Kentucky; Klein, Texas; Hanford, California; and Cleveland, Georgia.[ii] A school in Wisconsin in 2002 tried to halt the formation of such a club.[iii]

Minnesota has also been affected. Orono High School, part of Independent School District No. 278, initially refused to allow the establishment of a GSA in 1998.[iv] While the Orono example is not as recent as some citied, the national trend indicates that the issues is becoming more commonplace, and not restricted to a particular part of the country.[v] More Minnesota school districts have and will deal with this issued than in the coming years.[vi]

This article examines the standards and factors that go in to determining whether a group may establish an after-school club, how school districts may respond appropriately, and what direction the law is going.

The establishment of after-school clubs involves the First Amendment.[vii] Also at play are the federal Equal Access Act and the Minnesota Human Rights Act. Few reported decisions have dealt directly with GSA fact patterns.[viii] The legal analysis begins with teh first amendment which provides that, "Congress shall make no law...Abridging the freedom of speech...or the right of the people to peaceably assemble..."[ix] In terms of speech in schools, the touchstone case is the famous Tinker v. Des Moines Indep. Comm. Sch.[x] In Tinker, the Supreme Court reasoned that a student's free speech rights must be balanced against the school's right to control and maintain the learning environment. [xi] Specifically, the court heald that students may express their opinions so long as they do so without, "...materially and substantially interfering with the requirements of appropriate discipline in the operation of the school and without colliding with the rights of others..."[xii]

The court tailored this standard by holding that a school district must provide specific facts supporting its "forecast" of substantial or material interference in order to constitutionally curtail student speech.[xiii]

The Equal Access Act (EAA)[xiv] was signed into law by President Ronald Reagan in August 1984, in an effort to clarify the obligations and rights of secondary schools regarding access to and use of school facilities. It was originally proposed to specifically protect those seeking to establish religious-oriented clubs at public schools.[xv] The final version of the EAA was modified and broadened to include protecting other traditional forms of speech, political and philosophical, to avoid violating the Establishment Clause.[xvi] The Act specifically prohibits a public secondary school, which receives federal funding and provides a “limited open forum,” from denying equal access or a fair opportunity to “. . . students who wish to conduct a meeting within that limited forum on the basis of the political, philosophical, or other content of the speech at such meetings. . .”[xvii] That is, if the school is already allowing student clubs to meet, it must not prohibit new clubs from being established because of some type of disagreement with the substance of that group’s meetings.

While the EAA may already codify part of the First Amendment,[xviii] it actually goes several steps further, defining the school administration’s role vis-à-vis these student clubs. For example, the “equal” in the Act’s name refers not only to access, but also to how the school treats each student club. Personnel may attend, but only in a non-participatory capacity; the school must not sponsor the group; and non-school persons may not participate in the group’s meetings.[xix] The school may not require attendance, expend funds beyond incidentals, or influence the form or content of the meetings.[xx]

Pursuant to the EAA, a limited open forum exists whenever a school “ . . . grants an offering to or opportunity for one or more non-curriculum related student groups to meet on school premises during non-instructional time . . .”[xxi] Also pursuant to the Act, a curriculum related student group is identifiable via a consideration of four factors: (1) whether the subject matter of the group is actually taught, or will soon be taught in a regularly offered course; (2) whether the subject matter of the group concerns the body of courses as a whole; (3) whether participation in the group is required by a particular course; and (4) whether participants receive academic credit for participating.[xxii]

The EAA is tempered by a specific provision allowing schools to retain authority “. . . to protect the well-being of students and faculty. . .”[xxiii] This exception is coupled with the provision in Tinker allowing school administrations to restrict First Amendment activities if they materially interfere with the school’s operation.[xxiv]

Board of Education v. Mergens is the leading (and sole) Supreme Court case interpreting the Act in regards to formation of non-curriculum groups in schools.[xxv] In Mergens, the Court found that a high school had created a limited open forum pursuant to 20 U.S.C. § 4071(a) because the already-existing scuba diving and chess clubs were not directly related to the school’s courses; and so, the school was required by the EAA to grant a student Christian club the same privileges of these other clubs.[xxvi] Although the Supreme Court has yet to apply the EAA to non-religious student groups, clearly the plain language supports a broad interpretation to protect the equal access rights of GSAs. In fact, the Court in Mergens also established that the EAA did not violate the Establishment Clause because participation was voluntary,[xxvii] and that the law should be interpreted broadly.[xxviii]

The Minnesota Human Rights Act (MHRA) makes illegal any discrimination in education because of sexual orientation.[xxix] The MHRA defines sexual orientation as “ . . . having or being perceived to have an emotional, physical or sexual attachment to another person without regard to the sex of that person or having or being perceived as having an orientation for such attachment, or having or being perceived as having a self-image or identity not traditionally associated with one’s biological maleness or femaleness . . .”[xxx] Although the MHRA has not been explicitly applied to the formation of school groups, its provisions lend support to the contention that GSAs in schools are protected from discriminatory treatment from the school districts.

The law seems clear that schools must allow GSAs to exist, should students seek to establish them. Schools may monitor the groups to make sure they are in compliance with the EAA, that is, to make sure the group is voluntary, and that outsiders are not allowed to participate. It need not expend funds toward the group (aside from incidental start-up costs). It need not sanction the group. As long as the school is treating each group in a uniform manner, then it will avoid many legal challenges.

Some schools may take an even more drastic position, by eliminating all student clubs, so as to avoid the issue altogether.[xxxi] When a student-run GSA approached officials from Salt Lake City's East High School requesting permission to meet on campus, their request was promptly joined by a request from a counter-student group, opposing homosexuality.[xxxii] Upon hearing that the Utah School Board and Attorney General advised complying with the EAA in letting both groups meet, the Salt Lake City School Board banned all non-academic clubs from public high schools.[xxxiii] This is certainly a uniform approach, but one that policy may not favor, especially in the long run. Students from the GSA group promptly challenged the constitutionality of the ban in court.[xxxiv] In response, East High School changed its policy allowing extracurricular groups like the GSA to organize and meet on campus. Nevertheless, the Utah Legislature passed Utah Code Ann. § 53A-3-419 (1996), allowing schools to deny certain school clubs (primarily gay student clubs) access to school facilities.[xxxv] Returning to the Minnesota situation at Orono, the student group was represented by volunteer attorneys from the American Civil Liberties Union of Minnesota (ACLU-MN). Attorneys Tim Ewald and Todd Noteboom represented the Orono High School GSA in 1998.[xxxvi] They worked to persuade the School Board to voluntarily recognize the GSA as an official school group outside of a court proceeding.[xxxvii] Specifically, they made a thorough presentation to the School Board giving the reasons for recognition of the GSA as well as the legal ramifications for failing to grant the GSA official group status.[xxxviii] The School Board had granted official group status to a number of non-curriculum groups;[xxxix] however despite the fact that the GSA had met all of the requirements of group status it was not granted official status.[xl] It was feared that the Orono School Board may follow in the footsteps of Utah, as subsequent to the presentation the School Board eliminated the Student’s Against Drunk Driving club feeling it made them vulnerable to legal liability.[xli] However, in the end the Orono School Board accepted the GSA’s request for official group status and reinstated the Student’s Against Drunk Driving club on the morning that the ACLU-MN planned to file its complaint in Federal Court.[xlii]

Schools and school districts may be concerned that sinister groups may seek to gain a foothold in schools by way of the EAA. What could a school district do if, say, a neo-Nazi group attempted to meet at the school during off-time? One commentator’s look at the legislative history finds support that the EAA was not meant to protect “hate clubs, cults, and proselytizers.”[xliii] While the language of the statute does not explicitly carve out such an exception, school districts may rely on the “safety” exception, as well as the Tinker provision for restricting speech activities should they materially disrupt the school.

Conclusion

It should not be surprising that hot-button social, political and legal issues such as these play out in Minnesota schools and in schools across the nation. Schools are a microcosm of society, especially high schools which prepare teens for the adult world. Schools are also unique in that the interaction of federal law and student activity are often at play with each other, perhaps more so than in other settings. Federal and state laws protect the establishment of GSAs, while also preserving the school district’s right to be able to effectively maintain order behind the schoolhouse doors. Student groups and their advisors, and school district administrators should be familiar with the factors outlined here, in order to make informed decisions.