Utah would require school boards statewide to ban controversial extracurricular clubs under legislation passed last week, but critics say any such measure would violate student rights guaranteed under federal law.
The bill also would limit teachers’ speech outside the classroom, making it illegal for school staff members and volunteers to “support or encourage” criminal conduct in their private lives if such actions led to disruption in schools.
State lawmakers agreed in a special session late last week to force districts to prohibit student clubs that promote bigotry, encourage criminal conduct, or discuss issues of sexuality. Republican Gov. Michael O. Leavitt is expected to sign the bill.
The legislation was passed in the wake of a dispute over a proposed per mw’s story.gc organization for gay students at a Salt Lake City high school and is a revised version of a measure Gov. Leavitt vetoed last month.
The bill’s backers argue that school boards must have the authority to bar high school clubs that disrupt campuses or hurt the physical, emotional, or moral well-being of students. Critics, including the state chapter of the American Civil Liberties Union, say the bill violates teachers’ constitutional free-speech rights and students’ rights protected by the Equal Access Act, a 1984 federal law that guarantees all student groups the right to use school facilities on an equal basis.
Carol Gnade, the executive director of the aclu’s Utah chapter, described the bill as “a legislative form of gay bashing.” The ACLU likely will join with other groups to challenge the measure in a lawsuit, she said.
The governor will sign the bill this week, according to Vickisic dl Varelasic dl, a spokeswoman for Mr. Leavitt. Legal challenges are expected, she said, but court cases will provide the means to reinterpret the Equal Access Act.
“Whether the Equal Access Act or the local school board should be the player to determine what clubs can operate in a school has been a question for us here,” Ms. Varela said. “This legislation is our assertion that that power should rest with the state or the local school board, not in Washington.”
A First for States
While a few states have codified language from the Equal Access Act, Utah appears to be the first to aim at restricting the protections afforded by the federal law, legal experts said last week.
The effort may be in vain, however, as courts generally have ruled that the act supersedes state law. In court cases in New Jersey and Washington state, school officials argued unsuccessfully that state constitutions prohibit religious extracurricular clubs in schools.
“It really comes back to the fact that the federal law controls,” said Kimberleesic dl W. Colby, a special counsel and an expert on the law with the Virginia-based Center for Law and Religious Freedom, the advocacy arm of the Christian Legal Society. “A state’s action doesn’t really matter. I don’t see this going anywhere.”
Even if the letter of the new legislation skirts violations of the Equal Access Act, judges will see that its spirit is discriminatory, as lawmakers made it clear that they were reacting to the recent debate over the homosexual club at the Salt Lake City high school, said Elliotsic dl Mincbergsic dl, the legal director of People for the American Way, a liberal advocacy group based in Washington.
“In general, the fact that they have been careful in how they’ve written the law may help it to survive scrutiny,” Mr. Mincberg said. “But it won’t overcome the fact that the law is part and parcel of an overall effort to discriminate against that club.”
Compromise Measure
In February, the Salt Lake City school board voted 4-3 to ban all extracurricular high school groups. Board members were opposed to formation of a support group for gay students at East High School, but they struck down all extracurricular clubs to avoid violating the Equal Access Act, which prohibits schools from singling out clubs for exclusion. (See Education Week, Feb. 28 and March 6, 1996.)
The debate over the Salt Lake City club prompted state leaders to look for ways to give school boards authority to keep controversial clubs off campus.
The bill passed last week was a revised version of legislation approved by lawmakers in March that would have made it illegal for school staff members and volunteers to “encourage, condone, or support illegal” conduct. The measure was seen as being aimed at homosexuality, because sodomy is illegal in Utah. The prohibition would have applied even to school workers off campus if their actions disrupted schools or undermined public confidence in schools.
The state affiliate of the National Education Association threatened to file suit if the bill became law, however, and the governor vetoed it.
The bill passed last week does not go as far. Teachers would be prohibited only from private actions that encouraged “criminal” conduct and that result in campus disruption.
Officials at the Utah Education Association said lawyers and constitutional experts have concluded that these changes eliminated the threat to teachers’ free-speech rights.
The union may still join a suit charging that the law violates the Equal Access Act. But “the part we objected to most is gone,” said Lowell Baum, the union’s executive director.
The legislation apparently will have no immediate bearing on the Salt Lake City dispute. Mary Jo Rasmussensic dl Rasmussensic dl, the school board president there, said most of her colleagues remain committed to banning all extracurricular clubs.
“Our board is committed to continuing on the course that we have set,” Ms. Rasmussen said.
