ongoing censorship of the GSA
s name, announcements, posters and events; and school staff makingharassing and discriminatory remarks in school. Please
tell us by March 25
whether you will provideus with written assurance that: (1) students will be permitted to wear gender non-conforming attire to
prom; (2) the GSA will be allowed to use its full name, as well as the words “gay,” “lesbian,”“bisexual,” “transgender,” and “queer,” in its announcements and fliers, and that its announcements,
events, posters, and activity requests will be evaluated and processed just like those of any other club;(3) school administrators will immediately instruct staff to refrain from making discriminatory andharassing comments about LGBTQ and GNC people in the school environment; and (4) whether you arewilling to take action to address the overall hostile environment LGBTQ and GNC students encounter atthe school
problems that require longer-term solutions such as addressing policies, procedures, andtraining, which we discuss in further detail below. We are eager to work cooperatively with you toimprove the climate at the school for everyone and to collaborate on how to go about doing so. But if you cannot provide these assurances, please understand that we will pursue all legal avenues necessaryto vindicate the rights of the GSA and its members.
Censorship and Differential Treatment of Sultana
s Gay-Straight Alliance
It is well established that schools may not block a GSA from conducting its club activities, treatit differently from other non-curricular clubs, suppress its speech, or otherwise discriminate against theclub because school officials do not like the content or viewpoint of the club
s speech. Such actions areclearly prohibited by the Equal Access Act,
the First Amendment of the U.S. Constitution,
the freespeech protections in the California Constitution and California Education Code § 48907, and anti-discrimination protections in California Education Code § 220. As the U.S. Department of Education
has made clear, Equal Access Act and First Amendment protections apply to student groups “that
address issues relating to LGBTQ students and matters involving sexual orientation and gender identity,
just as they apply to religious and other student groups.”
GSAs, LGBTQ students, and their allies, like
all students, enjoy First Amendment protection and do not “shed their constitutional rights to freedom of
speech or expres
sion at the schoolhouse gate.”
s free speech provisions are even more protective than federal law,
and censoring, discriminating against, and denying equal access to a GSAis prohibited sexual orientation discrimination under California Education Code § 220.
The “equal access” a school must
afford a GSA is broad and includes access to all schoolresources other clubs enjoy. Thus, a school may not deny a GSA access to avenues of communicationother student clubs use to promote club activities, such as the public address system, club fairs, bulletin boards, and school newspapers.
And, under both the Equal Access Act and First Amendment, a school
20 U.S.C. § 4071(a) (“It shall be unlawful for any public secondary school which receives Federal
financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting within that limited open forum on the basis
of the religious, political, philosophical, or other content of the speech at such meetings.”)
Good News Club v. Milford Central School District,
121 S. Ct. 2093, 2100-02 (2001).
Tinker v. Des Moines
, 393 U.S. 503, 506 (1969).
Los Angeles Alliance for Survival v. City of Los Angeles
, 22 Cal. 4th 352, 366-67 (2000).
5 Cal. Code Regs. §§ 4900(a), 4927.
Bd. of Educ. of the Westside Cmty. Sch. v. Mergens,
496 U.S. 226, 237, 247 (1990);
Prince v. Jacoby
, 303 F.3d 1074, 1086 (9th Cir. 2002);
Straights & Gays for Equality v. Osseo Area Schs.
, 471 F.3d908, 912 (8th Cir. 2006);
Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ.
, 258 F. Supp. 2d 667,683-84 (E.D. Ky. 2003).