July 30, 2008

ACLU Prevails On First Amendment, Equal Access Grounds

CONTACT: media@aclufl.org or media@aclu.org

OKEECHOBEE, FL – A Florida federal court today ruled that school officials in Okeechobee, Florida must allow a gay-straight alliance (GSA) club to meet on campus. In a precedent setting order arising in a lawsuit brought by the American Civil Liberties Union, Judge K. Michael Moore upheld his earlier ruling that GSAs do not interfere with abstinence-only education and, in a legal first, held that schools must provide for the well-being of gay students.

"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."

In a first-of-its-kind ruling, Moore held that schools must provide for the well-being of gay students to the same extent as straight students and therefore the school may not 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 and the national ACLU 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 of the 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 for themselves, 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 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 for help, and after several failed attempts by the ACLU to convince the school to comply with the Federal Equal Access Act, the lawsuit was filed. 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." 

The ACLU prevailed in Okeechobee today 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 allow all extracurricular student groups to do so, and to treat every club equally.

Regarding the First Amendment, Judge Moore quoted the famed 1969 Tinker v. Des Moines 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."

Moore also referred 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. Gillman and her friends had been suspended from school after wearing clothes and stickers supporting their openly gay friends. In that case, federal judge Richard Smoak ruled that students have a right to express pro-gay political opinions at a public school.

In this decision, 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, just as other noncurricular clubs do, to discuss issues about bullying, tolerance, and discrimination. 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.

"It has been a long road and we are very pleased with the outcome.  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 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 GSAs 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: www.aclu.org/lgbt/youth/36195lgl20080729.html

And more background on the case can be viewed at: www.aclu.org/lgbt/youth/35421res20080521.html

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