ACLU Demands Flour Bluff High School Allow Gay Straight Alliance

Mar 2, 2011 Print This Post

FOR IMMEDIATE RELEASE
March 2, 2011

Contact: Dotty Griffith, Public Education Director, ACLU of Texas
(512) 478-7300 x 106 or (512) 923-1909; dgriffith@aclutx.org

Robyn Shepherd, ACLU, (212) 519-7829 or (212) 549-2666; media@aclu.org

ACLU Demands Flour Bluff High School Allow Gay Straight Alliance Student Club to Meet

Student Nikki Peet Denied Permission to Form Club

CORPUS CHRISTI – The American Civil Liberties Union (ACLU) and the ACLU of Texas intervened today on behalf of a high school student who has been denied the right to form a Gay Straight Alliance (GSA) club at Flour Bluff High School in Corpus Christi. GSAs are student-run extra-curricular clubs that bring together *LGBTQ and straight students to support each other and promote tolerance, and are common in public school districts throughout Texas and the nation.

Nikki Peet, 17, first approached school Principal James Crenshaw in November 2010 with a request to form a GSA. In response, Principal Crenshaw asked her to change the club’s name and mission. She submitted a revised proposal in January 2011, which the school again denied. Students and advocates throughout the country have voiced their support for Nikki and the GSA in recent weeks.

The ACLU sent a demand letter to the Flour Bluff Independent School District that gives the District until March 9 to confirm that a GSA will be allowed on campus or face possible legal action. In the letter, the ACLU calls attention to the fact that the school’s website shows that there are many extra-curricular clubs on campus and thus, the school cannot refuse to allow a GSA to meet on campus without violating the First Amendment and the Equal Access Act.

“Officials from Flour Bluff School District deny they are subject to federal law, but in fact, they are held to the same standard as other schools and must treat extra-curricular groups equally, regardless of their students’ religion, political affiliation, or sexual orientation,” said Christine P. Sun, Senior Counsel with the national ACLU’s Lesbian Gay Bisexual Transgender & AIDS Project. “It is discriminatory and unfair for the school to deny students the right to form a group that offers support for their peers to be themselves.”

Instead of allowing the GSA to meet, Flour Bluff Independent School District administrators have reportedly moved to ban other extra-curricular clubs. The ACLU letter points out that banning all extra-curricular clubs is an unlawful prior restraint on Nikki’s speech, similar to a Mississippi school district’s efforts to cancel the prom in the ACLU’s case on behalf of Constance McMillen.

“I am shocked and disappointed that my school district would rather punish students by eliminating extra-curricular clubs than allow the formation of a club whose entire purpose is to promote tolerance,” said Flour Bluff High School student and GSA founder Nikki Peet.

“No Texas public school student should be treated the way Nikki has been treated by the Flour Bluff ISD administrators, and no Texas public school district is above the law,” said Lisa Graybill, Legal Director of the ACLU of Texas.

“Although we hope Flour Bluff ISD will remedy this problem immediately by allowing the GSA to meet, we are prepared to take whatever action is necessary to vindicate Nikki’s and other students’ rights,” added Manuel Quinto-Pozos, Staff Attorney at the ACLU of Texas.

In addition to demanding the District allow the GSA to meet, the ACLU is also seeking all public information concerning the attempts to form a GSA at Flour Bluff ISD, including emails and correspondence between administrators regarding Nikki’s request.
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*Lesbian Gay Bisexual Transgender Questioning

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View the letter sent by the ACLU TX to the school below:

March 2, 2011

Via facsimile to 361-694-9800
Via email to jcarbajal@flourbluffschools.net
Via first class mail
Board of Trustees and Superintendent Carbajal
Flour Bluff Independent School District
2505 Waldron Road
Corpus Christi, Texas 78418

Dear Board of Trustees and Superintendent Carbajal:

We write on behalf of Bianca “Nikki” Peet, who is a senior at Flour Bluff High School (“Flour Bluff High” or “FBHS”), regarding the Flour Bluff Independent School District’s (“the District” or “FBISD”) attempts to stop Ms. Peet and other students from organizing a Gay Straight Alliance (“GSA”). GSAs are student-run extra-curricular clubs that bring together lesbian, gay, bisexual, transgendered and questioning students and straight students to support each other and promote tolerance, and are common in public school districts throughout Texas and the nation.

For the reasons set forth below, we believe the District’s actions in denying Ms. Peet’s request violate federal law and we require the District take immediate steps to remedy the situation and avoid legal action. Additionally, we request copies of all public information, including but not limited to all correspondence between FBISD administrators concerning Ms. Peet’s request to form a GSA.

I. Background

Ms. Peet approached Flour Bluff High School Principal Crenshaw with a proposal to start a Gay-Straight Alliance club (“GSA”), complete with a faculty advisor, in November 2010. After delaying consideration of Ms. Peet’s request until after the winter break, Principal Crenshaw unlawfully instructed Ms. Peet, via the faculty advisor, to change the name of the club to the “Tolerance Club.” Ms. Peet complied with Principal Crenshaw’s instruction and then renewed her request to form a GSA. However, even with that name change, Principal Crenshaw still refused to permit the club.

Students who support the efforts to form a GSA have reported intimidation and censorship by Principal Crenshaw and other administrators. Recent media reports further suggest that Superintendent Carbajal agrees with the
decision to deny the group’s application and will not allow the formation of a GSA at Flour Bluff High. Rather than permitting the club to form, it appears that the District intends to shut down some or all other non-curricular clubs at the high school.

II. Applicable Law

FBISD’s actions violate federal law and the First Amendment. Under the federal Equal Access Act (EAA) and the First Amendment, if a public high school allows any student group whose purpose is not directly related to the school’s curriculum to meet on school grounds during lunch or before or after school, it has created a limited public forum or limited open forum and thus cannot deny other student groups the same access to the school because of the content of their proposed discussions. See 20 U.S.C. § 4071(b); Gay-Straight Alliance of Yulee High Sch. v. School Board of Nassau Cty., 602 F. Supp. 2d 1233 (M.D. Fla. 2009) (granting preliminary injunction requiring school district to permit a GSA so long as the district maintained a limited forum under the EAA and the First Amendment).

Because Flour Bluff High has opened the door to non-curricular clubs on campus, it is required by law to permit the GSA club. Under United States Supreme Court precedent, a non-curricular student group is any group that does not “directly relate” to courses offered by the school. Board of Education v. Mergens, 496 U.S. 226 (1990) (holding that a “curriculum-related student group is one that has more than just a tangential or attenuated relationship to courses offered by the school”). Flour Bluff High’s website lists under the heading, Extracurricular Activities, clubs of the type that courts have held to be non-curricular, including:

• the chess club; see id. at 240;
• the Key Club; see Boyd County High Sch. Gay Straight Alliance v. Bd. of Educ. of Boyd County, 258 F. Supp. 2d 667, 679 (E.D. Ky. 2003) (holding that an academic honors club is presumptively non-curricular); and
• the Family, Careers, Community Leaders of America; see Mergens, 496 U.S. at 240 (holding that a community service club is presumptively non-curricular).

Furthermore, although not listed on the school’s website, according to media reports, Flour Bluff High also has allowed the Fellowship of Christian Athletes to meet on campus. This type of club has also been found to be a non-curricular club. Boyd County High Sch. Gay Straight Alliance, 258 F. Supp. 2d at 677–78 (holding that a Bible Club formerly known as Fellowship of Christian Athletes is presumptively non-curricular). Accordingly, because the District has permitted these and other non-curricular clubs on campus, your refusal to permit the GSA club violates the EAA and the First Amendment regardless of whatever District policy you believe makes the Equal Access Act inapplicable to this situation.

To the extent that the District intends on shutting down all non-curricular clubs to avoid the formation of the GSA, doing so constitutes an unlawful prior restraint on Ms. Peet’s and other students’ protected expression. Recently, a federal court in Mississippi held that when the school district canceled the prom in response to a student’s request to bring a same-sex date, the district violated the student’s First Amendment rights. McMillen v. Itawamba County Sch. Dist., 702 F. Supp. 2d 699 (N.D. Miss. 2010). The proposed action by the District here is no different than the cancellation of the prom that the court held in McMillen to be unconstitutional.

You have no basis for refusing to allow the GSA on campus. There is nothing inherent about a GSA club that violates school policies. Gay-Straight Alliance of Yulee High Sch., 602 F.Supp.2d at 1236-37; Gonzalez v. School Bd. of Okeechobee County, 571 F. Supp. 2d 1257 (S.D. Fla. 2008). Moreover, the purpose of the GSA, as clear from Ms. Peet’s proposal, is to “bring[] together LGBTQ [lesbian, gay, bisexual, transgender, and questioning] youth as well as its straight allies to bring tolerance and acceptance to the school and community, to be a support system to LGBTQ students, and to raise awareness of many LGBTQ related issues.”

Indeed, the proposed activities of the GSA are all activities typical and appropriate for a high school club, including giving toys to children at Driscoll Hospital and participating in the Relay for Life, an event that raises awareness for cancer. The GSA would also participate in the Day of Silence, an event where students take a vow of silence to bring attention to anti-LGBT name-calling, bullying and harassment in their schools. These activities, which serve the community as a whole and bring awareness to the serious issue of bullying on campus, are ones that you, as educators, should be encouraging, not censoring.

To the extent that you are concerned about other students, parents, or community members acting disruptively in reaction to the GSA, it is the District’s obligation to protect—not censor—Ms. Peet’s expression. The law does not permit a “heckler’s veto” over protected speech. Butts v. Dallas Independent Sch. Dist., 436 F.2d 728 (5th Cir. 1971). As a federal court in Kentucky ruled, even extensive disruption in the community and in school (thousand-person rallies, a boycott by half the student body) is not enough to justify shutting down a GSA where the GSA members themselves are not causing the commotion. Boyd County, 258 F. Supp. 2d 667 (“To rule otherwise would completely subvert free speech in the school by granting other students a ‘heckler’s veto,’ allowing them to decide through prohibited and violent methods what speech will be heard.”).

We also are deeply concerned with reports that the Flour Bluff High principal may be retaliating against students and others who are supporting the GSA. Although this should be self-evident, please note that advocating for the GSA or for the rights of LGBTQ students generally does not constitute activity that violates school policies against “secret societies” or “illegal organizations.” Gillman v. School Board for Holmes County, 567 F. Supp. 2d 1359 (N.D. Fla. 2008) (granting permanent injunction against school district and awarding $325,000 in attorneys’ fees to plaintiff).

III. Required Remedy
We write to demand that you rescind your unlawful policies, and permit the GSA to form at Flour Bluff High. Because your statements in the media have created hostility against the GSA, we also demand that you issue a statement affirming that the District will permit a GSA to form on campus, that it will be treated the same as any other non-curricular club on campus, and that the District will not tolerate any retaliation against a student, teacher, or any other staff member for supporting the GSA.

In permitting the GSA on campus, please be aware that the District may not impose conditions on the GSA that do not apply to other clubs. Straights and Gays for Equality v. Osseo Area Schools-Dist. No. 279, 540 F.3d 911 (8th Cir. 2008). Nor may the District require the club to change its name to the “Tolerance Club” or other name that does not specifically reference the purpose of the club – to serve as a safe space for LGBTQ students and their allies. Courts have specifically ruled that school cannot tell a GSA to remove the term “gay” from its name. See Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1147-48 (C.D. Cal. 2000), Gay-Straight Alliance of Yulee High Sch., 602 F.Supp.2d at 1236.

IV. Texas Public Information Act Records Request

In addition to our demands above, pursuant to the Texas Public Information Act, Texas Government Code Ch. 552, we request the following information maintained by the District and its officers, employees, and agents and/or Flour Bluff High School and its officers, employees and agents (“campus”):

A. Noncurricular student organizations

1. All district and campus policies, guidelines and instructions in effect during the 2009-2010 and 2010-2011 school years relating to the formation, recognition and operation of noncurricular or extracurricular student organizations ;
2. Information identifying each noncurricular or extracurricular student organization at FBHS during the 2009-2010 and 2010-2011 school years, disaggregated by school year;
3. All district and campus policies, guidelines and instructions in effect during the 2009-2010 and 2010-2011 school years for permitting noncurricular or extracurricular student organizations and/or their sponsors or members to:
a. include items in campus announcements,
b. distribute literature, including but not limited to posting flyers or signs on campus property,
c. be included on lists of noncurricular or extracurricular student organizations published to the district and/or campus websites and/or in print;
d. have an organization webpage hosted on the district and/or campus website
4. All requests by noncurricular or extracurricular student organizations and/or their sponsors or members during the 2009-2010 and 2010-2011 school years to:
a. include items in campus announcements,
b. distribute literature, including but not limited to posting flyers or signs on campus property,
c. be included on lists of noncurricular or extracurricular student organizations published to the district and/or campus websites and/or in print;
d. have an organization webpage hosted on the district and/or campus website
5. All information reflecting the consideration and disposition of each request identified in item 4;

B. Request to form a GSA

6. All information regarding meetings or discussions involving FBHS administrators, faculty, and/or staff in response to Nikki Peet’s request to form a GSA or Tolerance Club, or in response to media reports regarding the same, including the substance of what was discussed;
7. All information regarding meetings or discussions between FBHS administrators and Nikki Peet and any other student regarding a request to form a GSA or Tolerance Club, in response to student petitions regarding the same, or in response to media reports regarding the same, including the substance of what was discussed;
8. All information regarding meetings or discussions between FBHS administrators and FBHS faculty members interested or willing to serve as faculty or adult sponsors of a GSA or Tolerance Club, including the substance of what was discussed;

C. Bullying and Harassment

9. All formal and informal reports of student bullying or harassment at FBHS during the 2009-2010 and 2010-2011 school years, disaggregated by basis for the harassment;
10. All information reflecting the investigation or and any discipline related to each report identified in item 9 above.

We agree that all student-identifying information may be redacted from materials responsive to the requests above. Materials may be sent by e-mail to lgraybill@aclutx.org, by fax to (512) 478-7303, or by mail to P.O. Box 12905, Austin, TX 78711. We are willing to pay the statutory fee for copying these materials. If the fee exceeds $40.00, please provide the written estimate of costs via fax or email.

Please respond to this letter on or before Wednesday, March 9, 2011 confirming that you will meet the demands in this letter or explaining why you believe your actions to be lawful. We can be reached by telephone as follows: Christine Sun at 212-549-2661, Lisa Graybill at 512-478-7300, ext. 116, and Manuel Quinto-Pozos at 512-478-7300, ext. 128. If you refuse to comply with your obligations under the EAA and the First Amendment, we will take whatever steps necessary to protect the rights of our client, Ms. Peet.

Very Truly Yours,

Christine P. Sun
Senior Counsel
ACLU National LGBT Project

Lisa Graybill
Legal Director
Manuel Quinto-Pozos
Staff Attorney
ACLU Foundation of Texas

cc: Flour Bluff High School Principal James Crenshaw (via fax to 361-694-9802 and via email to jcrenshaw@flourbluffschools.net)
Nikki Peet

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