On Saturday, the Texas legislature gave final approval to Senate Bill 12, an expansion of Texas' anti-DEI policy for public and charter schools that supporters have hailed as a "Bill of Parental Rights."
Among many controversial provisions, the bill contains an especially legally dubious one that categorically bans certain student clubs that legislators disapprove. After noting that a public or charter school may in general "authorize or sponsor" student groups, S.B. 12 carves out a solitary exception: "A school district or open-enrollment charter school may not authorize or sponsor a student club based on sexual orientation or gender identity." Sec. 33.0815(b).
The bill's chief sponsor initially likened these LGBT student groups to "sex clubs," but later apologized for that characterization. Both supporters and critics of the bill interpret the provision to prohibit student clubs that focus on the subject matter of sexual orientation or gender identity (SOGI), rather than as barring clubs whose membership is confined to students of a certain sexual orientation or gender identity. By state law, as applied, only those student groups focusing on SOGI issues could never be "authorized." Presumably, they would be prohibited from meeting on school premises, as approved student groups may do.
If this interpretation is correct, S.B. 12 likely infringes the constitutional free speech rights of students and violates federal law if applied to exclude students groups devoted the subject of SOGI.. Let's consider each of these in turn.
(1) S.B. 12 and the First Amendment
By allowing schools generally to authorize and sponsor student clubs, the legislature is allowing schools to create what's known as a limited public forum. Under that First Amendment doctrine, if a school allows student groups, it cannot discriminate on the basis of the content of the group's speech unless the restriction is narrowly tailored to serve a compelling state interest. That's true even if that content is opposed on moral or religious grounds by administrators, other students, some parents, the local community, or legislators.
As applied, S.B. 12 would discriminate on the basis of subject matter--the subjects of sexual orientation and gender identity--addressed by student groups. It singles them out for disfavored treatment. Texas has not identified a compelling interest in forbidding student discussion of homosexuality or transgender issues. Legislator opposition to discussion of SOGI or student advocacy of equal rights is not a compelling interest. Nor is legislators' desire to keep students in the dark about SOGI, or to keep gay and transgender students in the closet. Even if these interests were compelling, Texas would have a difficult time showing how a total ban on LGBT student groups narrowly serves them.
Elsewhere, in a section of the bill prohibiting "instruction, guidance, activities, or programming" regarding sexual orientation and gender identity, the bill cautions that the section "may not be construed to limit a student's ability to engage in speech or expressive conduct protected by the First Amendment to the United States Constitution or by Section 8, Article I, Texas Constitution," provided the speech "does not result in material disruption to school activities." Sec. 28.0043(b)(1).
But this constitutional avoidance provision does not save the constitutionality of the ban on LGBT student clubs. First, it applies only to the section prohibiting SOGI instruction, not to the one banning student clubs. Second, as applied, the student club ban would prohibit what the Constitution requires in a limited public forum: equal treatment based on the content of the group's speech. There's no saving construction plausibly available here.
(2) S.B. 12 and the Equal Access Act
Beyond the First Amendment, S.B. 12 appears to violate the Equal Access Act of 1984. That federal law provides:
It shall be unlawful for any public secondary school which receives Federal financial assistance and which has a limited open forum to deny equal access or a fair opportunity to, or discriminate against any students who wish to conduct a meeting within that limited open forum on the basis of the religious, political, philosophical, or other content of the speech at such meetings.
20 U.S,. Code Sec. 4071. Under the law, the school creates a limited open forum "whenever such school grants an offering to or opportunity for one or more noncurriculum related student groups to meet on school premises during noninstructional time." If even one noncurricular student group is permitted to meet, all such student groups must be treated equally.
Congress passed the Equal Access Act at the urging of conservatives who quite rightly wanted religious student groups to be able to meet on public school grounds just as other groups could. But the law was quickly and successfully used by student gay-straight alliances to challenge bans on gay student groups. In Texas, despite deep hostility, these groups have flourished in middle schools and high schools for decades.
S.B. 12 mandates the very unequal treatment this hostility could not achieve. It would deny access based on the "religious, political, philosophical, or other content of the speech" by LGBT student groups.
(3) Alternatives for state regulation of student activities
States may, of course, address disruptive student behavior and even some problematic student speech on campus through means that violate neither the Constitution nor federal law.
States may prohibit student conduct (sexual or otherwise) on campus that is illegal or inappropriate. But that is not what S.B. 12 does. As applied to exclude LGBT student groups, it targets their speech.
States may also prohibit student speech (a) that is constitutionally unprotected (like obscenity or threats) or (b) that is reasonably forecast to cause material disruption to the school's educational mission. Student discussion of homosexuality and gender dysphoria, and advocacy of equality for gay and transgender people, are fully protected by the First Amendment. Yet S.B. 12 makes no effort to tie its categorical discrimination against student clubs discussing SOGI to any acknowledged limitation on student speech.
Schools may also impose reasonable time, place, and manner restrictions on student speech that are content neutral and don't discriminate among student clubs. A school could require that student groups meet only at certain noninstructional hours of the school day or in certain classrooms on campus, for example. But again, S.B. 12 is not such a restriction. LGBT student groups, and they alone, are forbidden at all times and all places within the school.
For more than 50 years now, courts have repeatedly affirmed the right of LGBT student clubs to meet on campus and to be treated equally with other student led groups. By giving its approval to S.B. 12, the Texas legislature failed its legal and constitutional obligation to uphold their rights.
