VIA E-MAIL

March 18, 2013 Interim Superintendent David McLaughlin Hesperia Unified School District 15576 Main Street Hesperia, CA 92345 Re: Discrimination against LGBTQ and Gender Non-Conforming Students at Sultana HS Dear Superintendent McLaughlin: We are writing on behalf of the Sultana High School Gay Straight Alliance (GSA) club to express our serious concern about school administrators

‟

 persistent censorship of the GSA

‟

s speech and activities, and systemic and pervasive discrimination against lesbian, gay, bisexual, transgender, queer/questioning (LGBTQ) and gender non-conforming (GNC) students. Far too often, we encounter situations where LGBTQ and GNC students face difficulties at school as a result of bullying and harassment by their peers. At Sultana High School, it sadly seems, the primary bullies are school officials and teachers

 — 

the very adults with a legal obligation and an ethical imperative to stop bullying and harassment and to ensure an equal and supportive educational experience for all. Officials at Sultana High School have repeatedly violated federal and state law by: (1)

 suppressing the GSA

’

s speech about the club and LGBTQ issues

, censoring its posters and announcements, refusing to approve its educational events, and treating the GSA differently than other clubs; (2)

 discriminating against students who are or are perceived to be LGBTQ and GNC

 by making and allowing teachers to make harassing re

marks such as calling students or things “gay,” saying “that‟s so gay” in the classroom,

 and in one instance making overt discriminatory comments about the Homecoming Queen

‟

s decision to wear a suit in lieu of a dress; failing to investigate, respond adequately to, and discouraging students from filing official complaints about anti-LGBTQ harassment and discrimination; retaliating against staff who advocate for the rights of the GSA and LGBTQ and GNC students; failing to implement, publicize, or train staff about clear policies and practices regarding discrimination and harassment; censoring discussion of LGBTQ issues at school; and treating same-sex couples differently by selectively enforcing PDA rules against them, excluding them from school traditions su

ch as “favorite class couple,” and punishing LGBTQ students more harshly for misconduct

than other students; and (3)

imposing gender stereotypes and suppressing expressions of gender non-conformity

 by establishing and threatening to enforce gender stereotypical dress codes at school social events. In alerting you to these issues, we hope and expect that you will take immediate steps to fix them and to bring the school and district into compliance with the law. We are most immediately concerned about students

‟

 ability to wear gender non-conforming attire to prom on April 13

th

; the

 

 2

ongoing censorship of the GSA

‟

s name, announcements, posters and events; and school staff making harassing and discriminatory remarks in school. Please

tell us by March 25

th

 

whether you will provide us 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 and harassing comments about LGBTQ and GNC people in the school environment; and (4) whether you are willing to take action to address the overall hostile environment LGBTQ and GNC students encounter at the school

 — 

 problems that require longer-term solutions such as addressing policies, procedures, and training, which we discuss in further detail below. We are eager to work cooperatively with you to improve 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 necessary to 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, treat it differently from other non-curricular clubs, suppress its speech, or otherwise discriminate against the club because school officials do not like the content or viewpoint of the club

‟

s speech. Such actions are clearly prohibited by the Equal Access Act,

1

 the First Amendment of the U.S. Constitution,

2

 the free speech 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.”

3

 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.”

4

 California

‟

s free speech provisions are even more  protective than federal law,

5

 and censoring, discriminating against, and denying equal access to a GSA is prohibited sexual orientation discrimination under California Education Code § 220.

6

 

The “equal access” a school must

 afford a GSA is broad and includes access to all school resources other clubs enjoy. Thus, a school may not deny a GSA access to avenues of communication other student clubs use to promote club activities, such as the public address system, club fairs, bulletin  boards, and school newspapers.

7

 And, under both the Equal Access Act and First Amendment, a school

1

 

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.”)

2

 

Good News Club v. Milford Central School District,

121 S. Ct. 2093, 2100-02 (2001).

3

 http://www2.ed.gov/policy/elsec/guid/secletter/110607.html;

 see also

http://www2.ed.gov/policy/elsec/guid/secletter/groupsguide.doc (legal guidelines).

4

 

Tinker v. Des Moines

, 393 U.S. 503, 506 (1969).

5

 

 Los Angeles Alliance for Survival v. City of Los Angeles

, 22 Cal. 4th 352, 366-67 (2000).

6

 

See

5 Cal. Code Regs. §§ 4900(a), 4927.

7

 

 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.3d 908, 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).

 

 3

may not censor student club promotional materials, refuse to allow club events, or subject club requests to heightened scrutiny or more onerous approval processes simply because the school does not approve of or feel comfortable with the viewpoint or message the club seeks to express.

8

 Nor may a school force a GSA to change or truncate its name, as the name of a club has important expressive character.

9

 Unfortunately, Sultana High School officials

 — 

 particularly Principal Larry Bird and Vice Principal H.R. Lugo

 — 

have subjected the school

‟

s GSA to each of these unlawful actions. This must stop immediately. School officials have censored the GSA

‟

s promotional flyers and announcements in ways that other clubs are not censored and because of the viewpoint and message being conveyed. Indeed, the club

‟

s very name has typically been truncated from

“Gay

-Stra

ight Alliance” to “GSA”

when morning

announcements are read over the intercom, with the words “gay,” “lesbian,” “bisexual,” “transgender,” and “queer” omitted entirely.

 

One announcement submitted as: “Do you identify as straight, lesbian,

 bisexual, gay, or are you questioning everything? Come join Sultana

‟

s Gay Straight Alliance on Wednesdays at lunch in room w-11. Join a group of students here on campus that support each other and

want to make a difference for others” was instead broadcast as, “GSA meet

ing in W-

11.” The club‟

s recently submitted announcements have, more often than not, simply not been broadcast at all. The school

‟

s attempt to minimize the student body

‟

s awareness of the existence of a group supportive of LGBTQ students is reinforced by the GSA

‟s exclusion from the “School Clubs and Organizations”

listed in Sultana

‟

s 2012-2013 Student Handbook & Planner. And, finally, school officials recently refused to approve for posting club flyers that merely advertised the group as a resource for LGBTQ youth and one flyer that provided definitions for each of the terms in the acronym. Principal Bird told

club members that the flyers were rejected because the word “queer” was deemed offensive, and Vice

Principal Lugo stated words to the effect of,

“if we can‟

t have a discussion in the classroom saying

queer, gay, or lesbian, why should they put them on posters?”

 Not only have the GSA

‟

s efforts to publicize the club and to attract new members been stifled,  but its club-related activities have also unfairly been restricted. While other clubs (such as the Future Homemakers of America, ROTC, Key Club, and Marching Band) regularly screen movies for their members, Principal Bird and Vice Principal Lugo have refused every GSA request this school year for  permission to show educational and age-appropriate movies addressing political and social issues important to LGBTQ youth.

10

 School officials have prohibited the GSA from screening movies about the devastating effects of bullying, teen suicide and its impact on the family, the vicious harassment and discrimination faced by LGBTQ individuals in rural America, the use of scripture to justify discrimination against LGBTQ people, what it means to grow up gay in America, and the quest for love and acceptance.

11

 In one instance, Principal Bird refused the GSA

‟

s request to screen the Lifetime

television movie “Prayers for Bobby” expressly on the basis of its “content,” claiming that the film‟

s

discussion of suicide was too “sensitive” and could have a negative em

otional impact on students. No such emotional sensitivity, however, was invoked to prevent one Sultana teacher from screening

“Schindler‟s List”— 

an R-rated film graphically depicting the horrors of the Holocaust

 — 

for her class.

8

 

 Rosenberger v. Rector and Visitors of the Univ. of Virginia

, 515 U.S. 819, 829 (1995);

Good News Club

, 121 S. Ct. at 2100-02;

Colin ex rel. Colin v. Orange Unified Sch. Dist 

., 83 F. Supp. 2d 1135, 1141, 1149 (C.D. Cal. 2000).

9

 

Colin

, 83 F. Supp. 2d at 1142, 1147-49 (unlawful under First Amendment and Equal Access Act to require student Gay-

Straight Alliance to change its name and noting that “when passing the EAA,

Congress

did not pass an Access for All Students Except Gay Students Act”).

10

 

The only film the GSA has been allowed to screen this year, “Hairspray,” is devoid of LGBTQ

-related content.

11

 

Among the films proposed and rejected for screening are “Prayers

 

for Bobby,” “Out in Silence,” “For the Bible Tells Me So,” and “True Love.”