In a demand letter sent to the Parkland School District, the Thomas More Society said the high school had illegally denied two students the right to establish a pro-life club on the basis that the club was too political and controversial.
The society, representing students Elizabeth Castro and Grace Schairer, said the district violated Elizabeth and Grace’s rights under the First Amendment to the United States Constitution and federal Equal Access Act.
The letter made the following legal points.
•Students do not shed their First Amendment rights at the school house gate. Tinker v. Des Moines Independent Community School Dist., 393 U.S. 503, 509 (1969). Accordingly, a school may not permit some students to organize and express themselves on particular topics while forbidding others the same right—this creates an atmosphere where only “approved” speech is permitted and violates the First Amendment as a content-based restriction.
•. . . merely labeling a topic “controversial”—is not a ground for censoring student speech. Id. at 508. Rather, school authorities may not silence student expression unless they reasonably forecast, based on actual evidence, that the student expression would lead to either a substantial disruption of the school environment or an invasion of the rights of others. Id. at 512. Discussion of controversial topics and distribution of material relating to political issues in public high schools are not prohibited. Instead, under clear Supreme Court precedent, students have the “undoubted freedom to advocate unpopular and controversial views in schools and classrooms,” balanced only against society’s countervailing interest in teaching students the boundaries of socially appropriate behavior. Bethel Sch. Dist. No. 403 v.Fraser, 478 U.S. 675, 681 (1986).
•Congress has also expressly protected students’ rights to create clubs with the Equal Access Act. 20 U.S.C. § 4071, et seq. Under the EAA, it is “unlawful for any public secondary school which receives Federal financial assistance . . . to deny equal access or a fair opportunity to, or discriminate against, any students who wish to conduct a meeting . . . on the basis of the religious, political, philosophical, or other content of the speech at such meetings.” Id. at § 4071. Simply put, once the limited open forum is open to one non-curricular club, then all non-curricular clubs must be treated equally, even if the clubs they wish to form are religious, political, or “controversial” in their content.
•The EAA’s protection of a club’s right to meet goes beyond merely a gathering of the student members of the club. The EAA explicitly defines “meeting” to include “those activities of student groups which are permitted under a school’s limited open forum and are not directly related to the school curriculum.” 20 U.S.C. § 4072(3). Thus, in addition to permitting the club to meet in school facilities, the EAA requires that the school permit Trojans for Life to put up posters, have meeting dates and information included in announcements and the school calendar, have a club picture in the yearbook, and engaged in any other activities that other clubs are permitted to do at Parkland High School. This also prohibits the school from subjecting a pro-life club to any conditions that do not apply to all other non-curricular clubs at that school. Placing requirements on the posters, leaflets, or announcements of a pro-life group that differ from those for other groups, for example, is unlawful differential treatment.
•Recognizing this pro-life club as an official school club does not mean the school is endorsing or “supporting” its message—and the students are smart enough to recognize this. In general, simply allowing the formation and operation of any club does not indicate that a school approves or endorses the group’s message, nor does it indicate that the school has “taken a stance” on the issue. Observing that “the proposition that schools do not endorse everything they fail to censor is not complicated,” the Supreme Court has held that public high school students are mature enough to understand that a school does not endorse or support speech that it merely permits on a nondiscriminatory basis. Mergens, 496 U.S. at 250. Congress recognized the same point when drafting the EAA, stating that “[s]tudents below the college level are capable of distinguishing between State-initiated, school sponsored, or teacher-led religious speech on one hand and student-initiated, student-led . . . speech on the other.” Id. at 250-51 (quoting S. Rep. No. 98-357, P. 8 (1984)).