U.S. DEPARTMENT OF EDUCATION
3. Issues to Consider When Applying the Act
1 We intend for these guidelines to provide schools with the information and resources they need to help ensure that all students, including lesbian, gay, bisexual and transgender (LGBT) students and gender nonconforming students, have a safe place to learn, meet, share experiences, and discuss matters that are important to them. This guidance represents the Department’s current thinking on this topic. It does not create or confer any rights for or on any person. This guidance does not impose any requirements beyond those required under applicable law and regulations. If you are interested in commenting on this guidance, please email us your comment at email@example.com.
2 The Equal Access Act, 20 U.S.C. §§ 4071 – 4073 (2010).
3 20 U.S.C. § 4071(a) (2010).
4 See Tinker v. Des Moines Indep. Sch. Dist., 393 U.S. 503, 509 (1969).
5 See, e.g., Bd. of Educ. v. Mergens, 496 U.S. 226, 236 (1990) (“Thus, even if a public secondary school allows only one ‘noncurriculum related student group’ to meet, the Act’s obligations are triggered and the school may not deny other clubs, on the basis of the content of their speech, equal access to meet on school premises during noninstructional time.”).
6 Id. at 247 (holding that to deny the school’s Bible club official recognition, which included access to the school newspaper, bulletin boards, and public address system, was to deny it “equal access”); Straights & Gays for Equality v. Osseo Area Schools - District No. 279, 540 F.3d 911, 914 (8th Cir. 2008) (holding that the school district violated the Act by providing noncurricular groups with greater access to communication avenues than it provided to SAGE); Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ., 258 F. Supp. 2d 667, 683 (E.D. Ky. 2003).
7 20 U.S.C. § 4072(4) (2010).
8 See Donovan v. Punxsutawney Area Sch. Bd., 336 F.3d 211, 222 (3d Cir. 2003) (“Simply because the period may fall within the more general parameters of the school day does not indicate that all time within those parameters necessarily constitutes actual classroom instruction.”); Ceniceros ex rel. Risser v. Bd. of Trustees, 106 F.3d 878, 880 (9th Cir. 1997) (holding that the plain meaning of the term “noninstructional time” under the Act includes meetings held during lunch time).
9 Mergens, 496 U.S. at 238-40.
10 Id. at 239-40.
11 Id. at 240.
12 20 U.S.C. § 4071(c)(5) (2010).
13 20 U.S.C. § 4071(c)(1) (2010) (providing that a school shall be deemed to offer a fair opportunity to students who wish to conduct a meeting if the school uniformly provides that “the meeting is voluntary and student-initiated”).
14 Id. at § 4072(2) (2010).
15 20 U.S.C. § 4071(d)(5), (c)(4), (f) (2010).
17 See Mergens, 496 U.S. at 250.
18 Id. at 244-245 (quoting Mergens v. Bd. of Educ., 867 F.2d 1076, 1078 (8th Cir. 1989)).
19 Id. at 246.
20 Id. at 244 (“To define ‘curriculum related’ in a way that results in almost no schools having limited open fora, or in a way that permits schools to evade the Act by strategically describing existing student groups, would render the Act merely hortatory. See 130 Cong. Rec. 19222 (1984) (statement of Sen. Leahy) (‘[A] limited open forum should be triggered by what a school does, not by what it says’).”).
21 20 U.S.C. § 4071(f) (2010) (stating that “nothing in [the Act] shall be construed to limit the authority of the school, its agents, or employees, to maintain order and discipline on school premises, to protect the well-being of students and faculty, and to assure that attendance of students at meetings is voluntary”).
22 See Bethel Sch. Dist. v. Fraser, 478 U.S. 675, 685 (1986) (holding that it is appropriate for educators to protect students from sexually explicit, indecent, or lewd speech).
23 See Gay-Straight Alliance of Okeechobee High Sch. v. Sch. Bd., 483 F. Supp. 2d 1224, 1229 (S.D. Fl. 2007) (rejecting school district’s assumption that a gay-straight alliance is a “sex-based” club, after examining club’s stated purposes of promoting tolerance and providing a safe environment for students, and concluding that school district failed to establish that it would be involved in “accessing or sharing with other students obscene or explicit sexual material; rather, this appears to be an assumption or conclusion derived from the name of the club”).
24 20 U.S.C. § 4071(c)(5) (2010).
25 See Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d at 1146 (C.D. Cal. 2000) (holding that sharing a name suggested by national organization and shared with other student clubs elsewhere does not approach level of control necessary to exempt group from Act’s protections, and therefore holding that school board violated Act when it excluded gay-straight alliance on basis of supposed association with “nonschool persons” but failed to apply restriction uniformly to groups such as Red Cross and Key Club, whose names similarly suggested affiliations with national organizations).
27 See, e.g., Colin, 83 F. Supp. 2d at 1147-48.