This article addresses manipulation of the federal Equal Access Act to allow prejudice and discrimination against lesbian, gay, bisexual, transgender, and questioning (LGBTQ) students who wish to form gay-straight alliances (GSA) in public schools. By focusing on patterns of argumentation in the recent surge of GSA litigation, this article argues that the incorporation of the constitutionally stringent standard developed by the Supreme Court in Tinker v. Des Moines Independent Community School District into the Equal Access Act's safe harbor exceptions is necessary to prevent courts from discriminating against LGBTQ students and from giving effect to the private homophobic and transphobic prejudices of community members, parents, and school administrators. Incorporating a more deferential reasonableness standard into the Equal Access Act's safe harbor exceptions allows school administrators to invoke LGBTQ student safety disingenuously as a pretext to ban GSAs; thus, the exact discrimination that the Equal Access Act was designed to prohibit becomes a way to evade its intended purpose.
University of Cambridge
Social Science Research Network (SSRN)