Students’ Right to Form Gay/Straight Alliances
Every year, the American Civil Liberties Union of Utah receives calls from Utah high school students who wish to form student clubs in which they can create a safe, welcoming, and accepting environment for all youth, regardless of their sexual orientation or gender identity. Often called Gay/Straight Alliances, or GSAs, these clubs are important resources for lesbian, gay, bisexual, and transgender (LGBT) students, as well as for those who are perceived by others to be LGBT, who are questioning their identity, who have LGBT friends or family members, or who just care about LGBT issues. Unfortunately, some school administrators and lawmakers have discouraged students from forming GSAs, either by attempting to prohibit the clubs outright, or by denying them the same access to school resources as other student clubs. This resource explains why both of these tactics are illegal and why students have the right to form GSAs in their public high schools.
Why do schools have to allow GSAs?
GSAs must be understood in the context of the 1984 federal Equal Access Act. Under the Equal Access Act, if a public high school allows any student group whose purpose is not directly related to the curriculum to meet on school grounds, then it must provide all other non-curricular student groups equal access to the school’s resources. In other words, schools may not pick and choose among non-curricular student clubs based on their preferences for what students discuss. If the school does so and it treats some non-curricular clubs differently than others, then it risks losing its federal funding. The Equal Access Act upholds students’ rights to free speech and association, which are protected by the First Amendment to the United States Constitution.
What is the difference between curricular and non-curricular clubs?
The Equal Access Act applies to non-curricular clubs, which the U.S. Supreme Court has said are student clubs that are not “directly related” to the curriculum. Generally, groups like a chess club or a community service club, such as Key Club, are considered to be non-curricular because the club’s subject is not taught in any class. In contrast, curricular clubs relate directly to subjects taught in the school, like a math or a Spanish club. Under the Equal Access Act, if a school allows any non-curricular club to meet, then it must allow a GSA to meet as well. The distinction between curricular and non-curricular clubs becomes especially important if a school district decides to prohibit all non-curricular student clubs, which is what the Salt Lake City School District did in 1996 in an ultimately unsuccessful effort to keep the East High School GSA from meeting.
Can a GSA be a curricular club?
The First Amendment prohibits schools from discriminating among curricular clubs because school officials do not like a particular student group’s message. While GSAs are often classified as non-curricular clubs, there have been some that have been found to be curricular. In 2000, for example, a federal judge found that the East High School PRISM Club, which sought to discuss curricular subjects, such as government, law, history, and sociology through the perspectives of lesbians and gay men, was a curricular student club. The ACLU of Utah filed a lawsuit on behalf of PRISM Club members after the Salt Lake City School District denied their application by erroneously classifying their club as non-curricular. After that ruling, the Salt Lake City School District granted club status to both the East High GSA and the PRISM Club, ending its four year ban on non-curricular student clubs.
What is the current Utah law regarding student clubs?
During their 2007 general session, the Utah State Legislature passed House Bill 236, “Student Clubs Amendments,” which imposes extensive new requirements for curricular and non-curricular student clubs. HB 236 prohibits clubs whose activities “would as a substantial, material, or significant part … encourage criminal or delinquent conduct; promote bigotry; involve human sexuality; or involve any effort to engage in or conduct mental health therapy, counseling, or psychological services for which a license would be required under state law.” In the past, lawmakers have hoped that the “involve human sexuality” clause, which has been a part of Utah law since 1996, would allow districts to prohibit GSAs while keeping other non-curricular clubs in their schools. This thinking ignores the fact that the focus of GSAs is not sex but issues related to sexual orientation and how to combat unfair treatment and prejudice. Also, if school officials assume that a GSA will discuss sex but other clubs will not, they unfairly (and unconstitutionally) single out a club based on a stereotype.
While we don’t yet know for certain how HB 236 will be applied, we are concerned that the new law may make it more difficult for students who wish to form GSAs because:
Students must now obtain “written parental or guardian consent” in order to participate in any curricular or non-curricular club. The sad fact is that the students most impacted by this requirement—those who feel they cannot express gay-positive viewpoints to their parents and those whose parents are not active enough in their lives to sign a permission slip—are the ones who would most benefit from being part of a GSA. In addition to being harmful for students, we believe that the parental consent requirement may be unconstitutional as well. The new law allows a third party (parents and guardians) to prohibit students from exercising their First Amendment right to expressive association by joining a school club. For many students, joining a school club is their first independent exercise of their constitutional rights to expression and association, and they should not have to ask their parents for permission to do so.
HB 236 contains vague language that may give administrators and teachers the false idea that they may ban clubs they find objectionable. The new law requires that student clubs “maintain the boundaries of socially appropriate behavior,” and it prohibits clubs that “violate concepts of civility or propriety appropriate to a school setting.” Schools unfamiliar with the requirements of the Equal Access Act may view this language as a mandate to ban GSAs because they or members of the community find them to be controversial. Such a ban would clearly be in violation of students’ constitutional rights; however, without a challenge from club members, who may be reluctant to take on their school authorities, a GSA could effectively be prohibited from meeting.
How does a student form a GSA?
Starting a GSA is like starting any other club. Unfortunately, that process just got a little more complicated with the passage of HB 236. Under the new law, students must submit a written application for club authorization that must include specific information, such as a statement of the club’s purpose, goals, and activities, the recommended meeting times, a statement that members of the club will abide by all applicable rules and laws, and a budget. Students should ask their school for a list of rules for forming an official student organization and then follow those rules carefully. Just in case they run into any problems, students should document the application process by keeping a record of the dates when they submitted something to the school, how and when the school responded, as well as copies of any material they submitted. If a school denies a GSA application, then they must provide students with a written statement explaining why. Students then have the right to appeal this decision to “a designee authorized by the school governing board.” Students must file this appeal within ten school days from the date their club application was denied.
Are there clubs that schools can prohibit?
Public schools can prohibit clubs that are materially disruptive to the school’s educational activities. However, schools cannot claim that a GSA is disruptive if that disruption is actually coming from other students, parents, or community members who do not like the fact that the group is meeting, rather than from the club members themselves. School officials can also prohibit speech that is indecent, lewd, or sexually explicit, but they can take action only once that speech has occurred and cannot ban a club simply because they think its members will engage in this type of speech. Additionally, schools cannot require that any reference to sexual orientation be removed from the club’s name, since doing so changes the focus and goals of the club and may violate students’ free speech rights under the First Amendment.
Are there other policies students should be aware of?
Student clubs are also regulated by the Utah State School Board and the local school district. These policies cannot be more restrictive than the Equal Access Act or the First Amendment.
Are GSAs permitted in private schools?
Private schools do not have to abide by the requirements of the Equal Access Act or the First Amendment, and they may be able to legally prohibit GSAs.
What can students do if they are having a difficult time forming a GSA, if their GSA application has been denied, or if their school is threatening to disband an existing GSA?
The ACLU of Utah is committed to protecting students’ constitutional rights, and we can advocate on behalf of students whose schools are trying to block GSAs or are treating GSAs differently than other student clubs. Students can contact the ACLU of Utah either by filling out our online intake form at www.acluutah.org/intake.htm or by calling us at (801) 521-9862 ext 101.
ACLU information on LGBT issues in the school
“Dealing with Legal Matters Surrounding Students’ Sexual Orientation and Gender Identity”
Jump-Start: Tools for students and gay-straight alliances
Laws and Policies
Equal Access Act
HB 236 “Student Clubs Amendments”
Rule R277-617 Authorization of Student Clubs and Organizations
East High Gay/Straight Alliance v. Board of Education and East High School PRISM Club v. Cynthia L. Seidel