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Judge on Trump's Short List Rules for Middle Schoolers

Middle school students can start LGBT clubs, but do they have free-speech rights?

Note: In an earlier version of this column, I should have said that the lawyers for the Gay-Straight Alliance did not raise in their brief the issue of whether the students had a First Amendment right to form such a club. Consequently, the court would not have had to address that constitutional claim, even had it not held that the Equal Access Act applied. This column has been edited throughout and carries a new headline.

Here’s a surprising headline you could have written this week: “Judge on Trump’s Supreme Court List Allows Gay-Straight Alliance in Middle Schools.” Yet remarkably, it’s true. Judge William Pryor wrote an appellate opinion holding that Florida middle schools (grades 6-8) offer “secondary” education, and are therefore bound by a federal law that requires them to allow equal access to all extracurricular groups, including GSAs.

The decision is especially interesting because the court had plenty of room to reach the opposite conclusion -- although it did not have to address the still more controversial question of whether the First Amendment would require that such organizations be allowed in all schools, no matter how old the students.

The case arose in Carver Middle School in Lake County, Florida, during the 2011-12 school year, when students asked the principal to approve the formation of a GSA. The principal referred the issue to the school board, which created a new policy for middle schools.

It required the system superintendent, not the principal, to approve middle school clubs. And it limited clubs to those that are an “extension of the school curriculum” and “strengthen and promote critical thinking, business skills, athletic skills, and performing/visual arts.”

Presumably, the rule was tailor-made to exclude the GSA. It’s worth noting that it would also exclude religious groups.

A student subsequently sought to create a GSA again, arguing that it would combat bullying and promote critical thinking. When the superintendent’s office said the GSA didn’t fit the policy, the student sued.

A federal district court dismissed the suit. But the U.S. Court of Appeals for the 11th Circuit reinstated it in an opinion by Pryor, a George W. Bush appointee who was previously attorney general of Alabama.

Pryor’s opinion very sensibly rejected the notion that the case had been brought either too soon or too late, both of which the district court embraced. The superintendent’s decision was clear and final, and future students would face the same issue at the school even though the original plaintiff has moved on to high school.

That left the appeals court with the legal arguments that the school had violated a federal law called the Equal Access Act.

Pryor’s opinion addressed only the statutory claim, not the constitutional one.

The Equal Access Act says that “any public secondary school” that receives federal money and allows extracurricular activities of any kind must open its facilities to “any students who wish to conduct a meeting.” It bars discrimination on the basis of “the religious, political, philosophical, or other content of the speech at such meetings.”

Passed in 1984, the Equal Access Act was intended to require secondary schools to allow extracurricular religious activities on campus. Some schools claimed (and some still claim) that religious uses would be unconstitutional establishments of religion. The law was written essentially to embrace the alternative legal idea that free speech prohibits viewpoint discrimination. By allowing any extracurricular uses, runs the logic, the schools create a “limited public forum.” And the First Amendment bars viewpoint discrimination in such forums.

The law is therefore a slightly odd duck: It’s a statute that demands that secondary schools follow the Constitution. But does it apply to middle schools?

Pryor said yes, and for a somewhat forced reason. The Equal Access Act defines secondary schools as those that “provide secondary education.” Florida law requires middle schools to offer Algebra I for high school credit. Hence, Pryor concluded, Florida middle schools are secondary schools for purposes of the federal law. By implication, the GSAs must be allowed.

Of course, the words “provide secondary education” could easily be interpreted to mean something like “provide mostly secondary education,” not “provide any education that gets secondary credit.” A middle school is not a high school, after all. They differ pedagogically and structurally.

What that tells you is that Pryor wanted to reach the result of applying the Equal Access Act. But why?

It’s likely not that Pryor is inherently sympathetic to the idea having GSAs in middle schools. When he was Alabama attorney general, he filed a friend of the court brief with the Supreme Court urging it to upheld Bowers v. Hardwick and not declare a right to gay sex, as it ultimately did. The brief analogized gay sex to “prostitution, adultery, necrophilia, bestiality, possession of child pornography, and even incest and pedophilia.”

That was 2003, and maybe Pryor has undergone a change of heart since. But it’s far more likely that he wanted the statute to apply because of the underlying First Amendment question.

That question would be tricky, because it would involve asking what free speech and free association rights are held by middle schoolers. There’s no doubt that anyone over high school age has a right to organize into a group. And it’s highly likely that high schoolers similarly have a right to speak and associate so long as it they don’t interfere with school operations.

But the courts haven’t clearly drawn the line regarding age. When the Supreme Court decided the landmark 1969 school free-speech case, Tinker v. Des Moines School District, the plaintiffs who wanted to wear black armbands ranged from 13 to 16. But in dissent, Justice Hugo Black noted that when the case began, the youngest had been just 8. And he pointedly commented that it wasn’t unreasonable to believe that “at their age, they need to learn, not teach.”

Pryor may or may not think middle schoolers have free speech. By making the Equal Access Act apply, he made the best of what could have been a tough legal situation. It remains to be seen what that will mean for his prospect of nomination.

(Corrects second, ninth, 10th, 18th and 21st paragraphs of article published Dec. 9, and rewrites headline, to reflect that the lawyers for the Gay-Straight Alliance did not raise the constitutional issue, and therefore the judge did not have to address it.)

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

    To contact the author of this story:
    Noah Feldman at nfeldman7@bloomberg.net

    To contact the editor responsible for this story:
    Stacey Shick at sshick@bloomberg.net

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