Utah moves to block gay student clubs
Legislation is reaction to gay/straight alliance at Provo High School
Legislation regulating student clubs, particularly those supporting gay students, is still awaiting the governor's signature, but warnings are already being sounded about potential impacts -- and they go beyond the issue of allowing gay/straight alliance chapters in Utah's public schools.
"This is really broad policy," said Carol Lear, director of school law and legislation for the Utah Office of Education. "To write this -- the seventh iteration of a bill -- in a compressed time frame is not the best way to write state policy.
"There's a lot of vague language in it that I'm not sure is constitutionally enforceable."
Rep. Aaron Tilton, R-Springville, says the bill's provisions were taken from state school board rules, and give parents more control. Tilton sponsored the bill.
Lear's concern is shared by the American Civil Liberties Union of Utah, which sent a letter to Gov. Jon Huntsman Jr. urging him to veto the bill.
The letter cites portions of the bill that require clubs to "maintain the boundaries of socially appropriate behavior" and prohibit clubs that "violate concepts of civility or propriety appropriate to a school setting."
The "ambiguous" language could put school districts on the wrong side of the federal Equal Access Act, which bans action against a student meeting "on the basis of the religious, political, philosophical, or other content of the speech at such meetings."
"No matter how creative their attempts, legislators cannot get around the requirements of the Equal Access Act and the First Amendment," states the ACLU's letter.
"We're still reviewing the bill," said Lisa Roskelley, a spokeswoman for Huntsman. The governor has until March 20 to sign or veto the legislation; if he takes no action, it becomes law.
Tilton said he's scheduled to meet with Huntsman on Friday to discuss it.
"There are no constitutional provisions that were brought up by our legislative research," Tilton said. "A majority of the bill is actually adopted from state board rules and school board rules."
What the bill mainly does, he said, is require parental consent for a student to participate in a club.
"Parental consent was not mandated," he said of previous rules, which allowed for parental notification instead. "The state should have a policy that parental rights are paramount for consent, not just notification."
He also dismissed concerns that districts will draw lawsuits by implementing the bill: "Not gonna happen," Tilton said.
Lear doesn't share his confidence.
One concern is what the expanded regulation of clubs could mean for school district liability. The new rules would require districts to approve the club's name, statement of purpose, meeting dates and budget, which is a higher level of involvement than simply providing a supervised meeting place.
"They can't do that without assuming more liability than they want" for club activities, including high-risk endeavors like skiing, rodeo and hockey, Lear said. "The district's going to be hard-pressed to say, 'We didn't have that much responsibility.' "
As for challenges over First Amendment concerns, Lear said those are less likely to lead to litigation: "Usually, we just kind of work through the issues."
Paul Murphy, spokesman for the Utah Attorney General's Office, said staff members there haven't reviewed the version of the bill that passed.
"We were familiar with the original version of the bill, but it's morphed several times," he said. "No one is comfortable to comment on its current state."
This legislation was first considered in the 2006 legislative session as a reaction to the formation of a gay/straight alliance chapter at Provo High School.
Chapters have existed at other Utah schools for years without incident and the Provo club disbanded after a few months. GSA clubs describe themselves as a forum in which students can discuss issues such as tolerance and diversity, and members frequently organize service projects.