ACLU Prevails on First Amendment, Equal Access Grounds
FOR IMMEDIATE RELEASE: July 30, 2008
Brandon Hensler, Director of Communications, (786) 363-2737 or email@example.com
Chris Hampton, ACLU LGBT and AIDS Project, (212) 549-2673
OKEECHOBEE, Fla. – The American Civil Liberties Union today announced that Federal Judge K. Michael Moore ruled that school officials in Okeechobee, Florida, must allow a gay-straight alliance (GSA) club to meet on campus. In precedent-setting order, the judge upheld his earlier ruling that GSAs do not interfere with abstinence-only education and in a legal first, holds that schools must provide for the well-being of gay students.
Moore also broke the legal mold by asserting that schools must provide for the well-being of gay students the same as straight students and therefore, the school cannot discriminate against the GSA. In the order, the court grants students in the GSA “all the rights and privileges granted to other noncurricular groups.” The victory is the second federal student rights case won by the ACLU of Florida’s LGBT Advocacy Project and the national ACLU LGBT Project this summer.
“Judge Moore’s ruling that GSAs are beneficial to gay students and that they don’t harm straight students is unparalleled. This is a clear victory for the students, for the Okeechobee GSA and indeed for all high school students in Florida,” said Robert Rosenwald, Director, ACLU of Florida LGBT Advocacy Project. “These are brave students who would not be silenced and did not tolerate discrimination. So many children cannot stand up, but hopefully this ruling will serve as warning to other Florida schools that equal access truly means equal access, and schools that choose not to follow the law will be inviting similar litigation.”
The ACLU prevailed in Okeechobee on both Equal Access Act and First Amendment grounds. The federal Equal Access Act (20 U.S.C. § 4071(a)) requires schools that allow any extracurricular activities to meet on campus to allow all extra-curricular student groups to do so, and to treat every club equally.
Regarding the First Amendment, Judge Moore quoted the famed 1969 Tinker case stating that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Moore went on to state that “the desire of the GSA to meet as a group to discuss matters pertinent to the challenges presented by their non-heterosexual identity and to build understanding and trust with other heterosexual students sounds in the political speech addressed in Tinker.”
In referencing Tinker, Moore refers to Gillman v. School Bd. For Holmes County, Fla., a First Amendment case won by the ACLU in May after a two-day trial in which the high school principal testified that he believed clothing or stickers featuring rainbows would make students automatically picture gay people having sex. In June, federal judge Richard Smoak ordered Ponce de Leon High School to pay $325,000 in legal fees to the American Civil Liberties Union after ruling that the school violated student Heather Gilman’s Constitutional rights to free speech. Gillman and her friends were suspended from school after wearing clothes and stickers supporting their openly gay friends.
Moore noted “that the GSA's tolerance based message would not materially or substantially interfere with discipline in the operation of the school. In order for [the school board] to justify its refusals to recognize the GSA as a student organization, ‘it must be able to show that its action was caused by something more than a mere desire to avoid the discomfort and unpleasantness that always accompany an unpopular viewpoint.’ This is precisely what [the school board] has failed to do.”
This order will allow the lesbian, gay, bisexual, transgender and straight students to meet on campus to discuss issues about bullying, tolerance and discrimination, just as other non-curricular clubs do. GSAs across the state and country have been shown to help gay and straight students feel safer at school, and provide an open forum for students to discuss their fears, hopes and challenges.
“I can’t tell you how happy I am that the judge agreed we have a right to create a safe space for gay students at my school,” said Brittany Martin, a 17-year-old upcoming senior at OHS who is the GSA’s president. She added, “All we’ve ever wanted was to have a club to talk about tolerance and harassment so we can try to make our school a better place for all students.”
“It has been a long road and we are very pleased with the outcome. Hopefully now the students at Okeechobee High School can start the new school year with a clean slate and openly discuss the problems they face with fellow classmates,” added Rosenwald.
The ACLU filed the federal lawsuit in November 2006 after students at Okeechobee High School were denied access to meet on campus by their principal, Toni Wiersma. Then-senior Yasmin Gonzalez approached the ACLU and after several failed attempts by the ACLU to convince the school to comply with the Federal Equal Access Act, the lawsuit was filed. After hearing oral arguments from both sides in February, the judge denied the school’s motion to dismiss the case.
The ACLU won a preliminary injunction in 2007 allowing students to meet on campus after repeated failed attempts by the defendants to characterize the club as “sex-based”. ACLU lawyers later defeated the school’s attempts to get the case dismissed.
The Federal Equal Access Act requires schools to treat gay-straight alliances as they would any other school group. Federal courts have repeatedly ruled in favor of GSA’s where schools tried to block their formation, upholding students’ right to form the groups across the U.S., including in Salt Lake City, Utah; White County, Georgia; Orange County, California; Franklin Township, Indiana; and Boyd County, Kentucky.
Lead attorney in Yasmin Gonzalez vs. School Board of Okeechobee County was Robert Rosenwald, Director of the ACLU of Florida’s LGBT Advocacy Project, with assistance from Ken Choe of the ACLU’s national LGBT Project and Zeina Salam of the ACLU of Florida. A copy of the opinion in can be viewed in PDF at: http://www.aclufl.org/pdfs/GSA_MSJ.pdf
About the ACLU of Florida
The American Civil Liberties Union (ACLU) of Florida is freedom's watchdog, working daily in the courts, legislatures and communities to defend individual rights and personal freedoms guaranteed by the Constitution and the Bill of Rights. For additional information, visit our Web site at: www.aclufl.org.
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