Morse v. Frederick's new perspective on schools' basic educational missions and the implications for gay-straight alliance First Amendment jurisprudence.

• Author: Woods, Jordan Blair

Consider two eleventh grade students, Michael and Anna, who attend public high school in a suburban town. The high school has approximately 1,000 students and enforces an abstinence policy banning any discussion of sexual activity. Two years ago, Michael and Anna were the high school's first students to openly identify as gay and lesbian. Now over twenty students openly identify as gay, lesbian, bisexual, transgender, or queer (LGBTQ). Recently, Michael and Anna discussed the growing interest among LGBTQ students and allies to form a gay-straight alliance (GSA) with one of their teachers. The teacher agreed to advise the GSA and filed a petition to the Board of Education to create the student group. The GSA's mission was to provide students with a safe space at school to discuss anti-LGBTQ harassment and work together to promote tolerance and acceptance regardless of sexual orientation and gender identity. The Board of Education denied the GSA's petition, claiming that allowing a "sex-based" group to meet on school grounds would violate the school's abstinence policy and thus interfere with the school's educational mission.

This hypothetical is not uncommon. LGBTQ youth are becoming more open about their sexual orientations and gender identities, which has resulted in more efforts by students to form student groups to discuss issues surrounding sexual orientation and gender identity, and in turn greater resistance to the formation of GSAs from school districts that oppose them) LGBTQ students usually contend that GSA prohibitions violate their rights under the Federal Equal Access Act (2) (EAA) and the First Amendment. (3) Despite being presented with both EAA and First Amendment claims, most courts have avoided the First Amendment issue and resolved the cases solely on equal access grounds. (4) This avoidance has created uncertainty with regard to the level of protection that the First Amendment affords students to form GSAs in public schools. As this uncertainty lingers, school districts become increasingly clever in creating their student organizations' policies in ways that avoid triggering the EAA. (5) Since the only alternative federal means of relief is under the First Amendment, the need for a clarification of the protection that the First Amendment affords students to form GSAs is particularly urgent.

To date, only the United States District Court for the Southern District of Florida has addressed how the United States Supreme Court's recent decision in Morse v. Frederick (6) affects the First Amendment analysis in GSA litigation. (7) In Morse, the Supreme Court adopted a new rule permitting schools to limit student expression that is "reasonably viewed as promoting illegal drug use." (8) The district court in Gonzalez v. School Board of Okeechobee County, held that Morse did not apply to GSA First Amendment claims because a "GSA's intent to gain recognition as a noncurricular student group is entirely dissimilar from the advocation of illegal drug use." (9)

At first glance, the court's conclusion in Gonzalez seems correct. Recognizing GSAs and limiting speech advocating illegal drug use are two completely different factual scenarios. Consequently, it is easy to overlook the analogies between the two, which may prove important for advocates. The purpose of this Article is to demonstrate that Morse v. Frederick could alter the First Amendment analysis in GSA litigation to make it easier for LGBTQ students to form GSAs under the First Amendment. Prior to Morse, the Supreme Court increasingly deferred to schools' educational missions, granting schools ever-greater authority to limit student speech. (10) In Morse, however, the Court shifted its tone and harshly criticized the notion that schools may limit student speech merely because they view it as antithetical to their basic educational missions. (11)

I argue that the Court's shift should be viewed as a rejection of the basic educational mission argument. If broadly applied to other student speech cases, including GSA litigation, this approach could serve as a new constraint on schools' authority to limit student speech. Recently, schools have prohibited GSAs by alleging that they violate their educational missions. (12) Therefore, interpreting Morse as a rejection of the basic educational mission argument strengthens claims by LGBTQ students that prohibitions of GSAs violate the First Amendment. This interpretation also prevents schools from fashioning their self-defined educational missions to exclude legitimate, LGBTQ-positive viewpoints on school grounds.

Since Morse is a relatively recent decision, its influence on student speech litigation is unclear. Some scholars interpret Morse's holding as limited to its facts. (13) Other scholars criticize lower courts' recent extensions of Morse to limit student speech that is unrelated to promoting illegal drug use. (14) Although Morse was not an optimal decision for free speech advocates, (15) this Article emphasizes the laudable aspects of Morse that are being currently ignored.

Part I presents recent trends in GSA litigation and the three policy models which have been adopted by school districts to ban GSAs. Part II illustrates that prior to Morse the Supreme Court was progressively granting schools more deference under the First Amendment to limit student expression that violated their educational missions. (16) Originally, in Tinker v. Des Moines Independent School District, the Supreme Court held that in order to limit student speech schools had the high burden of showing that it "materially and substantially interfere[s] with the requirements of appropriate discipline in the operation of the school.": Later, in Bethel School District No. 403 v. Fraser, the Court carved out an exception to this rule, explicitly deferring to schools' basic educational missions to grant schools greater authority to limit "lewd and obscene" student speech. 18 Similarly, in Hazelwood v. Kuhlmeier, the Supreme Court deferred to schools' basic educational missions to grant schools greater authority to limit school-sponsored speech. (19)

Part III illustrates that conflicting interpretations of Fraser and Kuhlmeier have resulted in uncertainty for litigants over the level of deference that these cases afford schools to limit student expression that allegedly interferes with schools' basic educational missions. For example, the school district in Morse interpreted Fraser and Kuhlmeier as granting schools broad discretion in identifying their educational missions and limiting any expression that they felt disrupted those missions. (20) Despite the Court's previous deference to schools' basic educational missions, the Morse Court explicitly refused to grant schools broad discretion to limit student speech that it viewed as contradicting their basic educational missions. I posit that the Court now seems to be emphasizing objective phenomena, such as laws and social trends, to determine whether schools should be allowed to limit particular student speech. These phenomena are independent of schools' subjective assessments of student speech and biased definitions of their educational missions. This new emphasis on objective factors could operate as a new restraint on the deference that schools were previously afforded to limit student speech that violated their basic educational missions.

Part IV extends this Article's interpretation of Morse to GSA First Amendment jurisprudence. I contend that the Court's rejection of the basic educational mission argument strengthens claims of LGBTQ students that prohibiting GSAs violates the First Amendment. I reach this conclusion by assessing how the Morse Court's rejection of the basic educational mission argument affects the constitutional legitimacy of the three policy models that schools have adopted to ban GSAs.

1. GAY-STRAIGHT ALLIANCES AS AN EMERGING ISSUE: THREE POLICY BAN MODELS AND LITIGATION TRENDS

   The presence of LGBTQ students in secondary schools is growing as youths recognize and accept their sexual orientations and gender identities at younger ages. (21) The increased number of LGBTQ youth has influenced students to form GSAs in order to address the special needs of LGBTQ students at school. The first public school GSA emerged in 1989. (22) Now, over 4,000 GSAs exist in secondary schools throughout the United States. (23) The goals of GSAs include establishing safe spaces to talk about previous anti-LGBTQ harassment and promoting tolerance and acceptance on the basis of sexual orientation and gender identity at school. (24)

   While the number of GSAs in secondary schools has increased, school districts have adopted three types of policies to prevent LGBTQ students from forming GSAs. (25) First, some school districts have adopted policies that prohibit student organizations from "engaging in any activity contrary to law, School Board policy, and the adopted core values, or school rules." (26) Under this policy model, schools maintain vast discretion to define which student organizations are antithetical to their educational missions, values, or policies. These school districts view GSAs as inimical to school values, or, in schools that enforce abstinence policies, as violations of school rules and policy. (27)

   Second, school districts have adopted policies that prohibit the formation of clubs that are "sex based," "encourage or promote sexual activity," (28) or are "sexually oriented, gay/straight or otherwise." (29) These school districts then contend that they may prohibit GSAs because the organizations are predominantly rooted in the sexualities or sexual orientations of student members. (30) For instance, the Okeechobee County School Board of Okeechobee, Florida enacted a policy in October 2007 banning any club that is "sex-based or based upon any sexual grouping, orientation or activity of any kind." Officials said that the new policy was aimed to prevent...