Local school boards have not only the right, but the responsibility to determine what student organizations meet on high school campuses.

So says Brinton Burbidge, attorney for the Utah School Boards Association, who addressed the organization's board of directors Saturday in St. George. Burbidge said existing law permits school districts to deny access to groups that threaten the order and discipline of schools or whose activities are not consistent with the well-being of students."I believe if you look at the law, specific provisions of the Equal Access Act empower boards of education - require boards of education - to consider disruption to a school environment and unlawful activity," Burbidge said. "That language isn't in the law to fill up space."

Burbidge distributed draft language outlining two options school boards could consider as they develop policies regarding student clubs and organizations, an issue that surfaced when a small group of students asked to form a Gay-Straight Alliance at East High School.

Under one option, school districts would allow only curriculum-related school clubs. This is the option the Salt Lake City Board of Education has adopted, beginning in the fall of 1996.

Burbidge said a club is curriculum-related if the subject matter of the group is taught at the school or will soon be taught in a regular course; participation in the club is required for a particular course; or if academic credit is given for participation in the club.

The second option would allow curriculum and noncurriculum groups on school campuses. It does not necessarily open the door to any and all organizations, Burbidge argues.

In a legal opinion on the point, Burbidge wrote: "The act expressly states that schools need not permit meetings that `materially and substantially interfere with the orderly conduct of educational activities within the school.' "

Burbidge said he believes local boards of education have the authority to determine if certain clubs would disrupt the educational environment. The decisions must be based on available facts and evidence, not whims, he cautioned.

"You can't make broad statements without having a factual basis," Burbidge said.

Clay Huntsman, a St. George attorney who attended the meeting on behalf of the Utah chapter of the American Civil Liberties Union, said the presentation was "clearly an attempt by the conservative element in this state to jam an agenda down our throats to ban gay and lesbian clubs."

Huntsman said he is not gay but views the matter as a civil rights issue. "This is one of those `bigotry of the day' type of events."

View Comments

Burbidge's legal opinion is contrary to interpretations forwarded by attorneys for the Utah State Board of Education, the Salt Lake City school board and the Attorney General's Office. Those lawyers suggest local school boards have three options: allow controversial clubs so long as they do not violate the law, ban noncurriculum clubs or refuse access and risk the loss of federal funds.

An outright ban of controversial organizations - such as gay clubs - likely would invite an expensive court battle. Some attorneys estimate the cost of such litigation could range from $500,000 to $2 million. Burbidge disputed the cost estimates.

Burbidge, who is with the law firm of Kirton & McConkie, said he and his law partners had proceeded amicus briefs before the Supreme Court for as little as $30,000. Representatives of the school boards association said they believe they could also hold down costs if they enlist the support of law firms that are "maybe the same persuasion we are."

The National School Boards Association has asked the Utah association to help set up a meeting with Sen. Orrin Hatch, R-Utah, to discuss possible amendments to the 1984 Equal Access Act in an attempt to foster more local control. Hatch was instrumental in passage of the federal legislation, which was initiated to ensure that student-initiated religious groups had access to public school facilities.

Join the Conversation
Looking for comments?
Find comments in their new home! Click the buttons at the top or within the article to view them — or use the button below for quick access.