On June 14, U.S. Secretary of Education Arne Duncan sent a letter to school districts across the country instructing them that federal law protects the right of gay-straight alliances to meet on school premises. And who is responsible for this pro-gay law? He didn't say, but the answer is: Conservative Christian advocates for school prayer.
Yes, you read that right. Conservative Christian advocacy for school prayer resulted in the law that today is most frequently invoked to support student groups concerned with gay-related issues. This is not what anyone expected, but it's a happy outcome that nicely demonstrates how free speech for everyone is good for us all.
The story goes back 30 years to the early days of the Reagan administration. Conservative Republicans had never accepted the Supreme Court decisions of the early 1960s banning official prayer and devotional Bible readings in public schools. Newly empowered in Congress, they set to work amending the Constitution to permit government-sponsored religious activities in public schools.
But amending the Constitution is difficult. Supporters of school prayer were in the majority but could not muster the 2/3 support they needed in each house of Congress for a constitutional amendment. An alternative plan to strip federal courts of their power to hear school prayer cases also failed.
Determined to achieve something, conservatives devised yet another strategy: passing a law protecting the right of voluntary student Bible clubs and other religious groups to meet and pray at school. Such a bill might well have attained the majority support it needed in each house of Congress and President Reagan would have been happy to sign it.
The problem was that a law protecting freedom of speech and association for religious students was likely to be struck down by the U. S. Supreme Court as an unconstitutional establishment of religion because it favored religious speech and association over other speech and association. The solution was to protect all speech.
The result was the Equal Access Act, a bill to protect freedoms of speech and association for student-initiated groups. Specifically, the bill provided that any public secondary school that permitted at least one "noncurriculum related student group" to meet on its premises during noninstructional time must provide equal access to any other student group regardless of the "religious, political, philosophical, or other content" of its speech.
Protecting all speech equally may seem a simple and obvious thing to do. It's not so simple and obvious, however, when the speakers are adolescents in secondary schools.
If Senator Ted Kennedy had proposed the Equal Access Act as a defense of student rights, conservative Republicans would have denounced it as an illegitimate federal intrusion in education and a liberal ceding of power from school officials to adolescents. Correspondingly, given the conservative source of the bill, liberals were highly skeptical, fearing that it would enable improper proselytizing and perceptions of official endorsement of religious groups.
And of course everyone beyond adolescence fears what adolescents may say and do if we accord them freedoms of speech and association. If there's one thing all adults agree about, it's the need to keep adolescents under control.
In the end, however, the bill attained the support of a bipartisan majority in each house and was signed into law by President Reagan in 1984. The Equal Access Act immediately functioned as expected to encourage schools to permit access to religious student groups and to provide a basis for legal action when schools denied equal access to student Bible clubs and other such groups. It continues to protect the rights of Christian students.
Over the past 20 years, however, the main effect of the Equal Access Act has increasingly been to protect gay-straight alliances. This may seem ironic, but in fact it's a tribute to the principled nature of free speech and the wisdom of the First Amendment.
No one can tell what free speech will protect. But we needn't worry about it protecting speech we fear or dislike. It surely will, but this is a price worth paying. In fact it's not even really a price. We're all better off in a system of free speech for everyone.