Court again backs Osseo gay-rights club

  • Article by: JAMES WALSH , Star Tribune
  • Updated: August 29, 2008 - 10:58 PM

The school district's fight to restrict a student gay-rights group was dealt another blow by the U.S. Court of Appeals.

For the second time in two years, the U.S. Court of Appeals has ruled against Osseo Area Schools in its efforts to keep a student-run gay rights group from having the same privileges as other clubs.

Friday's ruling affirmed a September 2007 decision by U.S. District Judge Joan Ericksen, who ruled that Straights and Gays for Equality (SAGE) should be on equal footing with other student groups at Maple Grove High School.

Ericksen ruled that the school violated the Equal Access Act by giving access to the public address system and school bulletin boards to groups such as the Spirit Council, synchronized swimming and Black Achievers while denying access to SAGE.

The school district had argued that the other groups were given access because they are "curricular" -- in other words, their activities are connected to the school's curriculum. SAGE, the school district said, is not.

But the appellate court rejected that argument. The other student groups are not curricular and are, essentially, the same as SAGE.

It is the second time the school district has been dealt a defeat by the federal appeals court. Ericksen issued a preliminary injunction against the school in April 2006, a ruling upheld by the Eighth U.S. Circuit Court of Appeals in December 2006. Afterward, SAGE asked the court for summary judgment, and Ericksen issued a September 2007 permanent injunction, which the district again appealed.

Suit dates to 2005

Two students, their parents and SAGE originally filed suit in 2005, after officials at Maple Grove High School denied the group status as a curricular organization, which would have allowed them to meet during school hours, put up signs and use the PA system for announcements. But the school granted curricular status to other groups -- such as the Spirit Council -- because, officials said, they are an offshoot of the school's student government.

But, while student government may comment on school and curriculum issues, the three-judge panel of the Eighth Circuit Court of Appeals said that the Spirit Council plans school dances and activities -- and is noncurricular. "Portions of MGHS's student government may well be curriculum related. ... But, every student group placed as a subgroup of the student government does not automatically qualify as curriculum related," the court wrote.

Tom Kayser, a lawyer representing the students who sued, was asked what comes next.

"I would hope that this would end the litigation," he said. "The Eighth Circuit has twice affirmed Judge Ericksen's opinions. Both opinions were comprehensive and right in line with the law."

The school district could ask the entire appeals court to hear the case. Or it could ask the U.S. Supreme Court to review it.

Osseo school district officials have been grappling with persistent financial challenges. Last year, the school board voted to close two schools and lay off more than 150 teachers. This November, the district is seeking voter approval for $8 million in additional property tax revenue per year for the next 10 years.

What comes next?

District officials were asked if they intend to keep fighting -- and paying legal fees.

District officials said they haven't decided. Stephen Knutson, the school district's attorney, said that the appeals court decision raises more questions that it resolves.

"It provides little or no substantive guidance to how to classify student groups," he said of the ruling.

For example, the fact that students can earn school credit in cheerleading or synchronized swimming should make them curricular activities. But the court focused its ruling on just the Spirit Council.

Knutson said the decision puts schools in the "untenable position of either closing their forum, or running the very real risk that you'll be subjected to multiple litigation with no guidance from the courts."

Osseo Assistant Superintendent Kate Maguire said the district will continue to allow SAGE the same access rights as other groups, and "will take some time to consider its next steps."

James Walsh • 612-673-7428

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