Gay-Straight Alliances and Sanctioning Pretextual Discrimination Under the Equal Access Act

51 Pages Posted: 5 Jul 2010 Last revised: 8 Oct 2015

Jordan Blair Woods

University of Arkansas - School of Law

Date Written: July 5, 2010

Abstract

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.

Suggested Citation

Woods, Jordan Blair, Gay-Straight Alliances and Sanctioning Pretextual Discrimination Under the Equal Access Act (July 5, 2010). New York University Review of Law & Social Change, Vol. 34, pp. 373-423, 2010. Available at SSRN: https://ssrn.com/abstract=1635050

Jordan Blair Woods (Contact Author)

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

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