Texas Legislature Bans LGBT Student Clubs in K-12 Schools, Violating the Constitution and Federal Law
On Saturday, the Texas legislature gave final approval to Senate Bill 12, an expansion of Texas’ anti-DEI policy for public and charter schools that supporters have hailed as a “Bill of Parental Rights.”
Among many controversial provisions, the bill contains an especially legally dubious one that categorically bans certain student clubs that legislators disapprove. After noting that a public or charter school may in general “authorize or sponsor” student groups, S.B. 12 carves out a solitary exception: “A school district or open-enrollment charter school may not authorize or sponsor a student club based on sexual orientation or gender identity.” Sec. 33.0815(b).
The bill’s chief sponsor initially likened these LGBT student groups to “sex clubs,” but later apologized for that characterization. Both supporters and critics of the bill interpret the provision to prohibit student clubs that discuss the subject matter of sexual orientation or gender identity (SOGI), rather than as barring clubs whose membership is confined to students of a certain sexual orientation or gender identity. By state law, only those student groups discussing SOGI issues would not be “authorized.” Presumably, they would be prohibited from meeting on school premises, as authorized student groups may do.
If this interpretation is correct, S.B. 12 likely infringes the constitutional free speech rights of students and violates federal law. Let’s consider each of these in turn.
(1) S.B. 12 and the First Amendment
By allowing schools generally to authorize and sponsor student clubs, the legislature is allowing schools to create what’s known as a limited public forum. Under that First Amendment doctrine, if a school allows student groups, it cannot discriminate on the basis of the content of the group’s speech unless the restriction is narrowly tailored to serve a compelling state interest. That’s true even if that content is opposed on moral or religious grounds by administrators, other students, some parents, the local community, or legislators.
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