Contributor, The Volokh Conspiracy

The federal requires “any public secondary school which receives Federal financial assistance” to generally let non-curricular student groups use school facilities (at least so long as it allows at least one such group). It was largely intended to protect religious student groups, but it also protects other groups, and it has often been used by Gay-Straight Alliances. But it only applies to “secondary schools,” defined as “public school[s] which provide[] secondary education as determined by State law." In Carver Middle School Gay-Straight Alliance v. School Board of Lake County, decided today by the U.S. Court of Appeals for the 11th Circuit, asks: Does a particular junior high school qualify as “provid[ing] secondary education.” And the answer turns on algebra (Big Gay Algebra? Math is super!):

The School Board of Lake County, Florida, administers Carver Middle School, a public school that educates students in grades six through eight. Middle schools in Florida must provide “at least one high school level mathematics course for which students may earn high school credit.” Carver provides Algebra I to meet this obligation.

To [determine whether Carved Middle School provides secondary education as determined by State law], we must review how Florida law uses the term “secondary education.” After surveying the relevant provisions of Florida law, we conclude that secondary education, at least, means providing courses through which students can obtain high school credit.

Florida law does not expressly define “secondary education,” but it does define the substantially similar term “adult secondary education” in its “K-20 Education Code.” “‘Adult secondary education’ means courses through which a person receives high school credit that leads to the award of a high school diploma or courses of instruction through which a student prepares to take the high school equivalency examination.” .. “Adult” modifies “secondary education” only to distinguish the kind of student who receives the education. … “Adult” signifies that it is adults, not adolescents, who receive education under this chapter.

Other provisions of the Education Code also suggest that the term “secondary education” means courses through which students can obtain high school credit. One provision grants certain state colleges authority to “develop charter schools that offer secondary education.” That provision establishes that students can “graduat[e]” from “high school” at these charter schools, which supports the definition … that secondary education includes courses for which high school credit is available. Another provision requires the Department of Juvenile Justice to provide an educational program that includes, separately, “[s]econdary education” and “[h]igh school equivalency examination preparation.” … Finally, with a few exceptions, colleges and universities in Florida require students to obtain a high school diploma before enrolling in programs that provide post-secondary education. Because “post-secondary education” comes after “secondary education,” these provisions suggest that secondary education encompasses courses provided for high school credit. When read together, these provisions establish that a public school “provides secondary education” if it provides courses through which students can obtain high school credit.

Instead of arguing about whether Carver provides secondary education, both parties argue about whether Carver is a “secondary school” under Florida law. The district court ruled that Carver is not a “secondary school.” Until July 1, 2013, Florida law defined “secondary schools” as “schools that primarily serve students in grades 6 through 12.” The district court ruled, and the Board agrees, that because the legislature repealed the definition, it intended to exclude middle schools from the term “secondary school.” The Alliance and H.F. counter by citing several provisions that use the term “secondary school” as if it encompasses middle schools.

We do not find it persuasive that Florida repealed section 1003.413, which included middle schools as secondary schools. To be sure, “secondary school” is ordinarily understood as an institution “that provides secondary education.” But if we concluded that Carver is not a secondary school under state law, that conclusion would not foreclose the possibility that Carver could still “provide secondary education” under state law.

The dozens of Florida statutes that use the term “secondary school” do so inconsistently. For example, one provision reads, “It is the intent of the Legislature to provide assistance to all public secondary schools, with a primary focus on low-performing middle and high schools.” This provision suggests that middle schools are secondary schools. Yet, as the Board correctly argues, the definition of “school” suggests the opposite because it appears to equate secondary and high schools, and another provision suggests that only high schools are secondary schools because Florida law requires secondary schools to provide “a course of study and instruction in the safe and lawful operation of a motor vehicle.” Because the term in the Equal Access Act that matters is “secondary education,” not “secondary school,” we need not delve into this tangle of provisions.

We conclude that “secondary education,” under Florida law, means at least “courses through which a person receives high school credit that leads to the award of a high school diploma.” Carver Middle School provides courses [i.e., Algebra I] through which students can obtain high school credit. The Equal Access Act applies to Carver Middle School.

Now there’s a possible counterargument: “school which provides secondary education” might mean a school that generally provides a program of secondary education, rather than a school that provides at least one class that is characteristic of secondary education; and that would require figuring out whether, under state law, a general program of junior high school education indeed qualifies as secondary education (a matter on which, as the court points out, state law seems uncertain). But the panel’s approach also seems defensible, though I wish it had discussed this counter-argument further. (By the way, if the Equal Access Act doesn’t apply, the First Amendment might still bar schools from discriminating against student clubs based on their viewpoint, but the panel did not discuss that question.)

Note that the panel opinion was written by Judge William Pryor, a noted and highly respected conservative judge who is on President-elect Trump’s list of potential Supreme Court nominees.