School Policy on Sex-Based Clubs Attracts ACLU's Attention

by Jim Brown and Jody Brown
August 29, 2006

(AgapePress) - - A constitutional attorney is praising a North Carolina school board for adopting a neutral policy that prohibits the formation of sex-based student clubs on campus.

The move by the Rowan-Salisbury Board of Education comes in response to the formation of a Gay-Straight Alliance (GSA) club at South Rowan High School. The new policy, which is based on the school district's existing abstinence-only sex-education policy, states the Board will not permit "formation of any curricular or non-curricular clubs" that are either "sex-based [or] based upon any sexual grouping or activity." The intention of the policy is to promote the "well-being of students" by preventing, among other things, sexually transmitted diseases, teen pregnancies, sexual harassment, and interference in the parent-child relationship.

But apparently the American Civil Liberties Union has a problem with that policy. Jennifer Rudinger with the ACLU's Raleigh office tells the Salisbury Post the policy may be illegal. "When a school allows extracurricular clubs, it's all or nothing," she says. "They can't discriminate .... They can't pick and choose."

Rudinger also says it is "inappropriate" and "factually wrong" to refer to a Gay-Straight Alliance club as a sex-based club; that instead, the purpose of the club is to "create a safe environment" and to "foster tolerance and acceptance." And the same law used to represent students who wanted to have a Bible club, which had been initially banned, protects those wanting to have a GSA club as well, she adds.

The chief counsel with the American Family Association's Center for Law & Policy (CLP) says whether the new Rowan-Salisbury policy can withstand a legal challenge is a close call.

"The argument the ACLU would make here is that they are limiting this forum on the basis of content," says the CLP's Steve Crampton. "And they would probably go so far as to argue it's the same thing as the school saying we're going to allow Spanish clubs and even gay-straight lesbian alliances, but not any club that's formed on the basis of religion. Clearly the Equal Access Act would prohibit that kind of a ban."

Crampton says although the ACLU has a colorable argument, the Board on the other hand could counter that GSA clubs create a "material and substantial disruption" of school activities.

"The school, especially given its commitment to abstinence-only sex education, could argue that this doesn't fall within the purview of the Equal Access Act because it's not non-curriculum related," the attorney explains. "In other words, they have a curriculum that specifically addresses abstinence -- and to the extent a Gay-Straight Alliance comes in and actually engages in speech that would sort of encourage sexual activity, then it's not non-curriculum related."

Crampton predicts the ACLU will file a lawsuit over the new policy.