Making Gay Straight Alliance Student GroupsCurriculum-Related: A New Tacticfor Schools Trying To Avoid theEqual Access Act

I. IntroductionIn Tinker v. Des Moines Independent Community School District,1 the Supreme Court clarified that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."2 Since 1984, however, high school student groups have not relied solely on their constitutional free speech rights for protection. Instead, student groups have been using the Federal Equal Access Act (EAA)3 to protect their free speech rights within the "schoolhouse gate." Modeled after the Supreme Court's Widmar v. Vincent4 decision, the EAA mandates that schools receiving federal funding and maintaining a limited open forum cannot discriminate against student groups meeting within that limited open forum based on the content of the group's speech.5 In passing the EAA, Congress was primarily motivated by extending statutory protection to religious student clubs, which at the time were experiencing discrimination at the hands of school officials.6 By the plain language of the statute, however, free speech protection also extends to "political, philosophical, or other content" of speech exercised by different student clubs.7 As a result, a new wave of litigation has emerged in which Gay Straight Alliance (GSA) clubs are using the EAA for free speech protection.8As a consequence, schools that are petitioned by GSA clubs for recognition face tough decisions. Due to the controversial nature of GSA clubs, schools that choose to recognize such a club will have to deal with the potentially hostile reaction the club will create among the student body and surrounding community.9 If a school chooses to deny recognition to a GSA club, however, the school will have to circumvent the EAA. This is not easy. The EAA protects student group access for student groups that fit within the EAA's limited open forum.10 A school is considered to have a limited open forum if it allows a "noncurriculum-related" student group to meet on campus during noninstructional time.11 The courts have given the term "noncurriculum-related" such a broad definition that it is very difficult for the typical school to argue that it does not allow at least one noncurriculum-related student group to meet on campus.12 Therefore, according to the majority of courts that have applied the EAA to a GSA club, most schools will be subject to the EAA and will have to grant the typical GSA club equal access to the school's limited open forum.13In this difficult situation, schools that are hostile to a GSA club would have the same three choices faced by schools that are hostile to religious groups. First, they could succumb to the EAA's mandate and grant the GSA club access to its facilities.14 Schools making this choice will have to treat the GSA club the same way they treat other noncurriculum-related clubs.15 Second, they could deny the GSA club access and forego federal funding.16 This is a very unpopular decision given the already stressed budgets of local schools.17 Finally, they could attempt to close their limited open forum by refusing to allow noncurriculum-related student groups to meet on campus.18 However, the broad definition of "noncurriculum-related" makes this decision also very unpopular because it means schools will have to deny access to clubs that are very common among high schools.What if a school was not totally hostile to the meeting of a GSA club but wanted to exert more control over the club's access than is permissible under the EAA? Is such a school still left with just these three choices? This Note offers such schools a new choice. By making a GSA club curriculum-related, a school can circumvent the equal access the Act offers a noncurriculum-related student group.19 This opportunity proves crucial for schools that do not want to deny a GSA club access to its facilities totally, but instead want to limit their access. In fact, Massachusetts is attempting to place such a restriction on GSA clubs by requiring parental consent for any student wanting to join or form a GSA club. …