Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013 Page: 144
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Texas Journal of Women and the Law
On the First Amendment issue, the federal judge applied Tinker,
finding that "the desire of the GSA to meet as a group to discuss matters
pertinent to the challenges presented by their non-heterosexual identity and
to build understanding and trust with other heterosexual students sounds in
the political speech addressed in Tinker."96 Further, the judge noted:
[T]he GSA's tolerance based message would not materially or
substantially interfere with discipline in the operation of the
school. In order for [the school administration] to justify its
refusals to recognize the GSA as a student organization, "it must
be able to show that its action was caused by something more
than a mere desire to avoid the discomfort and unpleasantness
that always accompany an unpopular viewpoint." This is
precisely what [the school board] has failed to do.97
The court distinguished this case from the Tinker exception cases, finding
that "[t]he GSA's intent to gain recognition as a non-curricular student
group is entirely dissimilar from the advocation [sic] of illegal drug use,
violence, and lewd conduct carried out before the entire student body.
Moreover, the GSA's [tolerance-based] mission is not a message
reasonably attributable to [the school board]."98 Thus, the court found that
the GSA, by teaching a purely tolerance-based message, would not conflict
with the school's abstinence-only policy, as the club was clearly not about
sex.99 In a parenthetical note, the Okeechobee court appeared to
distinguish the situation in its case with the situation addressed by the
Caudillo court, noting that the Caudillo court had "rel[ied] on the well-
being exception to deny recognition of non-heterosexual student group,
where Texas law criminally penalized homosexual acts between minors
and student group website provided links to lewd and obscene content."100
On the Equal Access Act issue, the court applied similar reasoning. It
found that the GSA did not conflict with the school's abstinence-only
mission, and, as a club that revolved around promoting the rights of "non-
heterosexuals," the school should "grant the GSA all attendant benefits
uniformly afforded to each of its noncurricular student groups and [should]
not place restrictions on the GSA that are not uniformly applied to all
noncurricular student groups."101 Thus, between Caudillo and Okeechobee,
we see a significant difference in how courts have classified GSAs based
on the exclusion or inclusion of certain key factors by the particular GSA.
A GSA might be classified either as a club that teaches safe sex as a goal
96. Id. at 1269.
97. Id. (internal citations omitted).
98. Id.
99. Id.
100. Id. at 1267-68.
101. Id. at 1267.144
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University of Texas at Austin. School of Law. Texas Journal of Women and the Law, Volume 22, Number 2, Spring 2013, periodical, Spring 2013; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth638862/m1/22/: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.