Essay:Court Rules for Gay Club, but Gives School Alternatives

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Court Rules for Gay Club, but Gives Schools Alternatives.

The ACLU of Minnesota sued to force the Osseo Area School District to grant a pro-homosexual club access to the school public address (PA) system, yearbook, fundraising and field trips. The school district already had a club called the “Gays, Lesbians, Bisexuals, Transgender, Questioning and Allies,” and already had a second gay club named the Straights and Gays for Equality (“SAGE”). But SAGE wanted access to the PA system and additional rights.

The ACLU invoked the Equal Access Act to argue that as long as the school district granted access to the PA system to other clubs, such as cheerleading and synchronized swimming, it must grant those rights to SAGE also. No, the school district argued in defending its action, cheerleading is related to physical education while SAGE is not, and thus SAGE should not be entitled to the same rights.

Enacted during the Reagan Administration at the urging of Christian groups seeking club status in public schools, the EAA expressly prohibits discrimination against public school clubs “on the basis of the religious, political, philosophical, or other content of the speech.” 20 USC § 4071(a). Federal courts have interpreted this to require federally funded schools, if they allow a single club, to also allow homosexual clubs.

The district court ruled in favor of the ACLU, and the Court of Appeals for the Eighth Circuit unanimously affirmed. Straights & Gays for Equality v. Osseo Area Schs., 471 F.3d 908 (8th Cir. 2006). The Court ordered the school district to give SAGE the same rights as the cheerleading club. The ACLU will be able to demand hefty attorneys' fees.

But the appellate court expressly gave the school district two ways that it could still assert authority over its own PA system, yearbook, fundraising and field trips. The district could deny rights to the cheerleading and synchronized swimming clubs, and then SAGE would lack a claim to any rights greater than theirs. But it would be a shame to take rights away from legitimate athletes in order to deny rights to a second gay club.

The second approach offered by the Court is new and interesting. The district can grant physical education credit to students who participate in the athletic clubs, thereby qualifying them for special “curricular” status. Non-curricular, sex-based clubs are not entitled to the same rights as curricular clubs, and would no longer have a claim to the school PA system.