Update: on May 30, 2013, U.S. District Judge Anne Conway issued a final order in the case of 14-year-old Bayli Silberstein of Leesburg, Florida who brought a lawsuit against the School Board of Lake County for repeatedly thwarting her efforts to establish a gay-straight alliance (GSA) at Carver Middle School. The final order reinforces a consent decree entered by the parties in the case on the day after the lawsuit was filed that allows the club to meet and awards Bayli one dollar in nominal damages. Bayli was represented in the case by the American Civil Liberties Union of Florida.
The ACLU of Florida intervened today on behalf of a Lake County middle-school student leader seeking to establish a gay-straight alliance (GSA) at Carver Middle School in Leesburg. The eighth grader spearheading the effort, Bayli Silberstein, says the club is needed to combat bullying at her school, but has faced administrative resistance in trying to establish it.
“The bullying at our school has gotten out of hand, and somebody needs to do something about it,” stated Bayli.
Flagler County school officials Tuesday evening were part of a town hall on bullying, hosted by Orlando’s Channel 13, as various strategies about reporting and combating bullying were discussed. The forum, held in the commission chamber at the Government Services Building, drew about two dozen people and focused more on definitions of bullying and legal remedies rather than some of the sources of bullying, which can be more difficult for school officials to pin down than for parents or students to complain of. (The district is hosting its own forum on bullying at the Flagler Auditorium, at 6:30 p.m., on Jan. 30.)
Flagler County isn’t foreign to the bullying of lesbian or gay students, though the most recent public case of bullying involved the actions of a teacher toward a student, rather than one student against another. The case led to an apology by the teacher. The 2011 case, spurred on by the Florida ACLU, also prompted the Flagler County School Board to add protections for “sexual orientation” and “gender identity or expression” to the Student Code of Conduct and the school district’s bullying and harassment policy. The Volusia County School Board similarly amended its policy soon afterward. Flagler Palm Coast High School has a gay-straight alliance, but the district’s two middle schools do not.
Students at Leesburg’s Carver Middle School had tried to form a GSA during the previous school year, and even included in the packet of materials submitted to the school a list of situations in which they had faced bullying that year. The principal at the time, however – David Bordenkircher – denied the request outright. Although many of Bayli’s friends that year were in eighth grade and therefore went on to high school, Bayli was left at Carver Middle.
In November, she submitted another packet of materials with the help of a faculty sponsor. They received no response. Bayli and a friend were able to meet with the new principal, Mollie Cunningham, who acknowledged the potential utility of the club but indicated that she needed to consult with the school board. No movement was made on the issue in 2012. After the new year, frustrated with the unexplained delay, Bayli and her mother Erica Silberstein reached out to the ACLU of Florida.
“As a parent, it was a struggle to hear about some of the things that were going on at my daughter’s school,” Erica Silberstein said. “The kids were asking for a support system, but the school didn’t seem very invested in the idea.”
Daniel Tilley, an LGBT-rights advocate with the ACLU of Florida, echoed Erica’s concerns: “The fact that the school has not allowed the GSA to form reflects the very reason why such clubs are so needed. If the school administrators themselves are unwilling to support the very people they are charged with protecting, it is unfortunately unsurprising that students’ peers are no better.”
Because of the school’s continued delay in responding to Bayli’s request to form the club, ACLU of Florida Legal Director Randall Marshall sent a letter today to the superintendent and school-board attorney apprising them of their legal obligations under both the First Amendment to the U.S. Constitution and the Equal Access Act to allow the club to form. The letter also noted the recent successful legal challenges brought by the ACLU of Florida on behalf of students who sought to establish GSAs and were met with administrative resistance. No such resistance greets the formation of such groups as the Fellowship of Christian Athletes, for example, even though the fellowship is an explicitly Christian organization.
“Under the Equal Access Act,” the letter reads, “schools may not pick and choose among clubs based on what they think students should or should not discuss. If a public school allows any student group whose purpose is not directly related to the school’s curriculum to meet on school grounds during lunch or before or after school, then it cannot deny other student groups the same access to the school because of the content of their proposed discussions. The Act specifically provides that a school cannot deny equal access to student clubs because of the ‘religious, political, philosophical, or other content of the speech at such meetings.'” (The full letter appears below.)
GSAs are student organizations made up of lesbian, gay, bisexual, and transgender (LGBT) students, along with their straight allies, who advocate for an end to bullying, harassment, and discrimination against LGBT students and others. A 2009 survey by the Gay, Lesbian & Straight Education network found that “84.6 percent of LGBT students reported being verbally harassed, 40.1 percent reported being physically harassed and 18.8 percent reported being physically assaulted at school in the past year because of their sexual orientation.”
The bullying can, ironically, can have Christian teachings as its source, its inspiration or its justification, especially in the South, as some churches still consider gay and lesbian lifestyles sinful, inadmissible, unnatural, or all three. While schools routinely and implicitly endorse Christian messages or beliefs (Tuesday evening, John Fischer, a Flagler County School Board member, spent part of his time during the board meeting advocating for bringing back prayer in schools), explicit defenses of LGBT students are rare, often leaving the task to advocates beyond the schools.
The ACLU of Florida has succeeded numerous times in recent years in helping students form GSAs at their schools. In 2008, the ACLU of Florida won a similar case on behalf of a GSA in Okeechobee, Florida. The judge ruled that schools must provide for the well-being of gay students and cannot discriminate against the GSA. The Okeechobee County School Board paid $326,000 in attorneys’ fees in that case. In 2009, the ACLU of Florida reached a settlement in a lawsuit against the School Board of Nassau County in following a preliminary injunction by a federal judge against the school board. In 2012, the ACLU of Florida reached a settlement in a lawsuit against the School Board for Marion County; the judge in that case ordered the school to officially recognize the Vanguard High School GSA.
Finally, in January 2013, the ACLU of Florida succeeded in helping the students at Booker T. Washington High School in Escambia County form a GSA after students’ initial efforts were rebuffed by school administrators.
“The Board Members may be uncomfortable about students discussing sexual orientation and how all students need to accept each other, whether gay or straight,” one federal judge wrote in one such ruling, but school officials “cannot censor the students’ speech to avoid discussions on campus that cause them discomfort or represent an unpopular viewpoint.”