home > legal work > case resolutions
East High Gay/Straight Alliance v. Board of Education
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF UTAH CENTRAL DIVISION
Civil No. 2:98-CV-193J
JUDGMENT AND ORDER OF DISMISSAL
EAST HIGH GAY/STRAIGHT ALLIANCE, an unincorporated association; IVY FOX, a minor, by and
through her mother and next friend, KAY KOSOW FOX; KEYSHA BARNES, a minor by and
through her father and next friend, JAMES BARNES; and LEAH FARREL, by and through her
mother and next friend, KELLY FOGARTY, Plaintiffs
BOARD OF EDUCATION OF SALT LAKE, CITY SCHOOL DISTRICT, a body corporate of the State
of Utah; DARLINE ROBLES, Superintendent of Salt Lake City School District, in her official
capacity; and CYNTHIA SEIDEL, Assistant Superintendent, in her official capacity, Defendants.
On November 5, 1999, this court held the Final Pretrial Conference. Stephen C. Clark, Jon W.
Davidson and Kathryn D. Kendall appeared on behalf of the plaintiffs; Dan R. Larsen and Elizabeth
King, Assistant Utah Attorneys General, appeared on behalf of the defendants. Counsel addressed
the two issues remaining in this case as outlined in this court’s Memorandum Opinion and Order,
filed October 6, 1999: (1) whether an unwritten policy exists barring plaintiffs from expressing
"gay-positive" viewpoints on matters germane to the permissible subject matter of the defendants’
existing forum for curriculum-related student groups; and (2) if such a policy exists, whether it
denies plaintiffs the freedom of expression guaranteed by the First and Fourteenth Amendments. 
Plaintiffs’ counsel argued that the existence of the unwritten policy was demonstrated by the Salt
Lake City School District’s denial earlier this year of an application by a group named the Rainbow
Club to meet at East High School as a curriculum-related student group. Defendants responded
that no such unwritten policy exists. To the contrary, defendants represented through counsel that
District policy guarantees free expression of "gay-positive" viewpoints on matters germane to the
permissible subject matter of the existing forum for curriculum-related student groups. Counsel
asserts that the District’s policy conforms to written standards of conduct established by the Utah
Professional Practices Advisory Commission. Those standards mandate that a professional
educator in Utah "shall ... not exclude a student from participating in any program, [or] deny or
grant any benefit to any student on the basis of race, color, creed, sex, national origin, or sexual
orientation" and "may not engage in a course of conduct that would encourage a student to develop
a prejudice on these grounds or any others;" and that a professional educator "shall … not harass
or discriminate against a student or co-worker on the basis of sexual orientation[.]" Utah
Administrative Code §§ R686-103-6(E), R686-103-7(H) (1999). Those standards also forbid
interference "with the legitimate exercise of political and civil rights and responsibilities of a student
acting consistently with law and district and school policies." Id § R686-103-7(I).
In order to determine whether an actual case or controversy exists on these remaining issues, the
Court requested plaintiffs’ counsel to identify any evidence, including the names, dates and events,
that supports a claim that a student has been prohibited from expressing a particular viewpoint on a
subject matter during an actual curricular-related student group meeting. Plaintiffs’ counsel pointed
to several instances in which students refrained from expressing gay-positive viewpoints out of fear
that such expression would not be deemed "appropriate." Although plaintiffs’ counsel gave
examples of discouraged student speech in a variety of contexts, none of the examples involved
gay-positive views actually expressed during a student group meetings. No one, it appears, has
been reprimanded, disciplined, suspended, or expelled for expressing a "gay-positive" viewpoint on
any subject. 
This court need not decide whether the denial of the Rainbow Club’s application to meet as a
curriculum-related student group comported with what the District now so emphatically declares to
be its policy. 
The Rainbow Club is not here.
The question here is the existence of a policy.
The Rainbow Club’s application is not part of this lawsuit except insofar as its denial may support
an inference that an unwritten policy exists barring expression of gay-positive viewpoints within the
existing forum. Absent more tangible evidence of the existence of such a policy, however, that
inference does not suffice to sustain the assertion.
The District’s resounding affirmation that "gay-positive" viewpoints may be freely expressed in
curriculum-related student groups, coupled with the fact that no student has been reprimanded or
punished for expression of "gay positive" views, dispels any contrary inference that an unwritten
policy now exists forbidding expression of "gay-positive" views.
It may well be true that in individual instances, student expression of particular viewpoints has
genuinely been chilled by apprehensions rooted in someone’s "understanding" of what may be
deemed appropriate and what may not. Nevertheless, individualized "understandings" alone cannot
overcome the District’s clear, express and unequivocal statement of policy forbidding discrimination
against viewpoints within the existing forum, including discrimination against "gay positive"
viewpoints. Nor may individualized "understandings" alone suffice to create a justifiable case or
controversy, or confer standing upon plaintiffs to further prosecute their claims. 
From the outset, plaintiffs have sought declaratory and injunctive relief, prospective in nature,
vindicating their rights to free expression of gay-positive viewpoints. Rather than dwelling on past
wrongs, plaintiffs have sought to define what should happen in student groups "from now on" --
looking to the future, not the past.  Whether plaintiffs have standing or this court has continuing
jurisdiction of their claims thus depends upon an evaluation of probable future events.
The future anticipated by the District’s unequivocal policy ensuring free expression of student
viewpoints does not differ dramatically from the future envisioned by plaintiffs’ prayer for relief.
Plaintiffs sought protection for "gay-supportive expression within student group activities," and "the
application of established, clear, content-neutral, unbiased, non-arbitrary criteria that are
consistently applied to all student groups using or seeking to use" the existing forum. (Second
Amended Complaint, at 21.) Plaintiffs sought injunctive relief to ensure a viewpoint-neutral forum. In
light of the District’s affirmations made in open court and on the record, one may expect the District
to maintain a viewpoint-neutral forum, even without an injunction.
If nothing else, plaintiffs’ Second Claim for Relief exacted the defendants’ reaffirmation that as a
matter of District policy, gay-positive viewpoints as to matters relevant to the school curriculum
may be freely expressed in the existing forum at East and West High Schools. That being so, the
risk that plaintiffs will actually suffer immediate and irreparable harm justifying an injunction now
seems minimal. Absent such imminent "injury in fact," it appears that plaintiffs lack standing to
further pursue their claims for affirmative relief against the Salt Lake City School District and its
administrators under the First and Fourteenth Amendments.
Absent significant probative evidence that the alleged unwritten policy forbidding expression of
gay-positive views exists -- directly contrary to the policy articulated by the District in open court --
no case or controversy remains. As a consequence, this court lacks the subject-matter jurisdiction
required to consider further declaratory or injunctive relief on plaintiffs’ Second Claim for Relief
IT IS ORDERED, ADJUDGED and DECREED that (1) as to Plaintiffs’ First Claim for Relief,
declaratory relief is GRANTED in conformity with this court’s Memorandum Opinion and Order
entered October 6, 1999, holding that the defendants had violated the Equal Access Act, 20 U.S.C.
§§ 4071-4072, at East High School during the 1997-98 school year, in favor of plaintiffs East High
Gay/Straight Alliance, Ivy Fox and Keysha Barnes; declaratory and injunctive relief is otherwise
(2) as to Plaintiffs’ Second Claim for Relief, the Second Amended Complaint is DISMISSED for
want of an existing case or controversy.
DATED this 30th day of November, 1999
1. In their objection to defendants’ proposed form of order, plaintiffs, request nominal damages
based upon their First Claim for Relief. It is symbolic and academic. As to the First Claim for Relief,
no one specifically asked for money damages. (See Second Amended Complaint at 20.) The relief
sought--declaratory relief--was granted.
2. In Tinker v. Des Moines School District, 393 U.S. 503 (1969), there was little question
concerning official policy or official action because Mary Beth Tinker was suspended from school
for expressing her views opposing U.S. involvement in Vietnam, as were others. See also Peter
Irons, The Courage of Their Convictions 233-252 (1988).
3. Defendant Seidel’s personal observation that "sexual orientation is not the proper organizing
subject matter of a curriculum-related club" may reflect an overly narrow perception of "gay-positive"
viewpoints. As eloquently outlined in plaintiffs’ Pretrial Memorandum, "gay-positive" viewpoints may
span a wide range of topical subject matter, and it would be naive at best to assume that
expression of such views necessarily would involve the advocacy or even the description of
particular sexual behavior or practices. Plaintiffs’ viewpoints know no such narrow constraints.
Concerns about discussion of human sexuality in the public school setting have little bearing upon
a discussion of the role of gay and lesbian persons in the Holocaust or the orientation of various
historical or literary figures and its impact upon their lives and work.
4. "Those whose expression is ‘chilled’ by the existence of an overbroad or unduly vague statute
cannot be expected to adjudicate their own rights, lacking by definition the willingness to disobey
the law. In addition, such deterred persons may not have standing to obtain affirmative relief, since
the hypothetical ”chilling effect” of the mere existence of an overbroad or vague law does not by itself
constitute the sort of ‘injury-in-fact’ which confers standing." Laurence H. Tribe, American
Constitutional Law § 12-32, at 1035 (2d ed, 1988) (citing Laird v. Tatum, 408 U.S. 1, 13-16 (1972))
5. The specific relief sought in the Second Amended Complaint is declaratory and injunctive in
nature, except for "compensatory damages . . . , in at least a nominal amount," on plaintiffs’
Second Claim for Relief. (Second Amended Complaint at 20-21.) Plaintiffs also ask for attorneys’
fees and "such further and different relief as this Court deems just and appropriate." (Id. at 22.) See
also Fed. R. Civ. P. 54(c).