Ohio public school forbids Amnesty International student club [UPDATE: Amnesty reports that the club can now go forward]

|The Volokh Conspiracy |

UPDATE: On May 11, Amnesty reported that the school allowed the club to go forward.

The Columbus Dispatch (Alissa Widman Neese) reports:

New Albany High School has suspended a student chapter of Amnesty International after receiving complaints that the human-rights group is anti-Semitic….

The district made the move to respect the school's diversity and shield students from a potential political firestorm, officials said.

The controversy began last month, shortly after [Ellie Henze, the 17-year-old who started the group,] distributed a poster promoting the club's first meeting, she said. It featured a photo of an anti-war protest that included a person holding a "Free Palestine" sign, in reference to the Israel-Palestinian conflict….

In an April 22 email, Carter told the teen that she can form a human rights organization but it can't be associated with Amnesty International.

"My responsibility in this is to protect our students from getting caught up in political lightning rod topics, such as what we've been discussing the last couple of weeks," Carter's email said. "Using (Amnesty International's) name will create nothing but animosity, fear and potentially bring negative attention to students who are simply trying to democratically decide on human rights issues to discuss."

But, if the school lets other noncurriculum-related clubs to meet at school (and assuming the Columbus Dispatch account is correct), this violates both the First Amendment and the federal Equal Access Act. And my quick research suggests that New Albany High School does indeed have such other clubs (which explains why the Amnesty International club was apparently rejected based on its message, rather than on the grounds that the school just doesn't have student clubs).

1. The First Amendment bars the government from discriminating against groups that want to use school facilities based on viewpoint. See, e.g., Lamb's Chapel v. Center Moriches Union Free School Dist. (1993). This is part of the general principle that the government can't limit access to most other government property based on viewpoint.

When it comes to K-12 schools, the government has some extra power to restrict speech that is vulgar, pro-drug, or (the school's likely argument in this case) likely to be substantially disruptive. But there needs to be some serious evidence of likely substantial disruption.

Indeed, in Tinker v. Des Moines Indep. School Dist. (1969), the Supreme Court held that even anti-Vietnam-war speech, which was of course highly controversial at the time (the events took place in December 1965), could not be suppressed absent real evidence that it would "materially and substantially interfere with the requirements of appropriate discipline in the operation of the school." The same must be true of pro-Palestinian speech, anti-Israel speech and other speech related to the conflict. That something is a "political lightning rod topic" or might "potentially bring negative attention to students" is no more a basis for suppressing pro-Palestinian speech than it was for anti-Vietnam War speech.

2. The Equal Access Act of 1984 likewise makes it illegal for public schools that get federal money, and which let other noncurriculum-related clubs to meet, "to deny equal access" or "discriminate against" any student group "on the basis of the religious, political, philosophical, or other content of [its] speech." And while there is an exception for meetings that "materially and substantially interfere with the orderly conduct of educational activities within the school," I doubt that this exception can apply here, for the reasons I mentioned above.