Unusual Gay Student Loss

Federal judge upholds Texas school district denial of gay-striaght group

Few areas of gay rights litigation in recent years have been more predictable than lawsuits to compel local school districts to allow gay/straight student alliances to meet on campus. But the unbroken string of victories ended in Lubbock, Texas, where a federal judge ruled on March 3 that the local school district did not violate either the First Amendment or the Equal Access Act when it refused to let such a group meet on campus or distribute or post its flyers there.

The decision by U.S. District Judge Samuel R. Cummings seriously accepts the proposition that a school district can adopt a formal policy of forbidding any discussion about sexual activity, on the theory that any such discussion likely leads to teen pregnancy and sexually transmitted disease, and could be harmful to students’ well-being.

Ignorance is bliss in Lubbock, apparently, when it comes to sex.

The group’s student organizers constructed their website, which was advertised in their flyers, to include links to sites that include sexually explicit information. Cummings decided that since one can quickly go to linked websites, they should be considered part of the group’s own website and found that a link to gay.com rendered the group’s website obscene. Thus the school district was justified in banning the group.

Cummings’ opinion assumed that any discussion of homosexuality is by definition “indecent” and something that the school district has a compelling interest in excluding from its premises.

The Texas Homosexual Conduct Law, thrown out in last June’s Supreme Court sodomy ruling, was still in effect at the time, so the principal was also concerned about whether the group’s activities would lead to violations of the law, including other Texas statutes governing sex involving minors. Although the students revised their website to remove offending links, their requests to meet on campus continued to be denied.

Cummings found that the Lubbock school board had adopted “an abstinence policy applying to all matters concerning sexual activity,” and thus effectively ruled out any discussion at the school about contraception or safer sex practices. A high school teacher wrote to the school district asking permission for the gay student group to post notices about their off-campus meetings, which was denied. The student organizers appealed this through school district channels to the board of education, presenting a list of their goals that included educating “willing youth about safe sex, AIDS, hatred, etc.” All requests for permission to post or distribute flyers or to meet at the school were either ignored or rejected.

Cummings rejected the argument that denial of access to the Lubbock Gay/Straight Alliance was content-based viewpoint discrimination in violation of the First Amendment, reasoning that under the abstinence-only policy, the school would reject such access for any group discussing sexual activities, whether heterosexual or homosexual.

The plaintiffs also argued that the school was not being evenhanded since it allowed the Fellowship of Christian Athletes to meet on campus. Cummings rejected the argument that the Fellowship could be seen as an “anti-homosexual” organization, asserting that the plaintiffs had not shown that the Fellowship made any statements about sexual activity.

Cummings decided that the case was really about the issue of exposing minors to “material of a sexual subject matter,” on which the school was entitled to be concerned and paternalistic. Arguing that the rights of minors in public schools are not coextensive with adult rights under the First Amendment, Cummings decided that since the school included students as young as 12 years old and that the material on the website and “the group’s goal of discussing sex both fall within the purview of speech of an indecent nature,” the school could “regulate and prohibit such speech from its campuses.”

Cummings also considered claims under the Equal Access Act, which mandates that schools provide equal campus access to student groups regardless of the content of their activities. On this point, he was confronted with a string of federal court decisions upholding claims by gay/straight student alliances to meet at public high schools. Cummings brushed away six court decisions cited by the plaintiffs, stating: “Upon review, the Court finds this handful of cases to be distinguishable because this Court was unable to find that any of the cases involved a school that maintained an abstinence-only policy and banned any discussion of sexual activity on campuses.”

Cummings also noted that the Equal Access Act creates an exception for situations where exclusion of a group is necessary for the “well-being” of students, and asserted that none of the gay rights victories had involved any analysis of this exception. Furthermore, he insisted that because the schools might incur liability if gay students encountered harassment, it was necessary to exclude all discussion of sex to insure that such harassment would not occur.

Cummings also cited the sodomy law, since declared unconstitutional, as providing a compelling justification for excluding any discussion of homosexuality from the high school campus. He apparently felt no need to consider whether last year’s Supreme Court decision voiding the law might change the legal framework for analyzing the case.

This Texas decision most likely will be appealed. Lambda Legal represents the Lubbock students seeking to form an officially recognized Gay/Straight Alliance.

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