The Equal Access Act and "Gay-Straight Alliance" groups

Gay-Straight Alliances (GSAs) are groups comprised of students who seek to educate one another, and the student population as a whole, about issues surrounding sexual orientation or gender identity.  Many such groups face fierce opposition from staff, administrators, parents, other students, or the community.

In September 2007, a federal judge applied the Equal Access Act to the Maple Grove High School in a dispute over the access of a gay-straight student alliance. Click here to read more.

The legal rights of Gay-Straight Alliances

The federal Equal Access Act prohibits a school from "deny[ing] equal access or a fair opportunity to, or discriminat[ing] against, any students who wish to conduct a meeting within that limited public forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings." While there are narrow exceptions to the EAA, the possibly controversial nature of a student group – often a consideration for GSAs – is not enough to permit a school to forbid the group to meet.
 
Examples of actions that may violate the EAA include: withholding permission for a GSA to form, meet, or announce its activities, or placing restrictions on these opportunities that are not applied to other groups; denying a GSA a student advisor if otherwise offered/required, or restricting its advisor's ability to fulfill their duties to the group; or refusing to permit GSA, but not other groups, to advertise in school publications or be depicted in the yearbook.

Application of the law

The Equal Access Act applies to schools that are public secondary schools (middle, junior, and high schools) that receive federal funds and that have created what's called a "limited public forum." This means the school permits at least one student-initiated, non-curricular group to function during non-instructional time (basically, time before and after school).  The presence of a faculty advisor does not make the group not student-initiated.
 
The U.S. Supreme Court has defined a group as "non-curricular" when:
(1) Its subject matter is not taught in the school's typical curriculum (and isn’t likely to be)
(2) Its subject matter does not concern the body of courses as a whole
(3) Participation is not required for any particular course (4) Students get no academic credit for their participation. (For more information, see Board of Educ. of Westside Community School v. Mergens, 496 U.S. 226 (1990).) GSAs typically meet these criteria with ease.

The Minnesota Human Rights Act

In addition to the EAA, public schools in Minnesota are also subject to the state's Human Rights Act (MHRA), which prohibits discrimination on the basis of sexual orientation (including gender identity) in education. (See Minn. Stat. § 363A.13.) Therefore, a school's decision to deny a GSA access to its "limited public forum" may violate both EAA and MHRA.

For more information on the Equal Access Act and the rights of GSAs, please contact: 

Phil Duran, JD
Staff Attorney, ext. 102
phil@outfront.org

Lambda Legal Defense & Education Fund

American Civil Liberties Union of Minnesota