Chapter 106: Resolution and Indecision

Tuesday, June 8, 1982

Today would hopefully bring the end of the School Board protest saga, for better or worse. I was hoping for better, of course. Tom Myerson called mid-afternoon to let me know he’d heard nothing.

If they ruled against Lizzie, the next step would be a lawsuit, if we wanted to go that way. I hadn’t raised the possibility. Should I bankroll such a thing, if it came to that? I wasn’t sure. It wasn’t life or death to be on Student Council, after all. It would suck, no question, but it differed from, say, Cammie being sent off somewhere. I’d bankroll that lawsuit without a moment’s hesitation.

Part of me thought they would, but more of me hoped they’d see sense and do the right thing. The law was on our side. Beyond that, the issue was larger than just Lizzie. If the morality clause would kick Lizzie out, people could make all sorts of mischief.

Plus, on a practical level, kick Lizzie off and ... do what? Put Randy in as secretary? Was that even viable? He’d alienated more than half the students, denigrated the office, and not one of us would work with him. Hold another election? If they’d let Lizzie run, we’d do this all over. If they didn’t, we’d find someone they’d like less — and they knew that.

Fingers crossed.

We had dinner out before the board meeting. Nothing fancy, but a bit unusual. Mom wanted seafood, so we found ourselves at Red Lobster.

Dad echoed my earlier thoughts. “I have to say, I hope they make the right decision, and by that I mean not trying to force your friend Lizzie off Student Council. It’s funny, really. You know that I’ve met homosexual people before. Not that many, or at least, not that many where I knew, but some. And ... they were people. There’s a law against it, but ... well, no surprise that I’d agree with Dr. Ott. It’s no business of the government. Who are they hurting?”

Mom nodded. “There were, you know, whispers and rumors about a few kids way back when I was your age. No one really believed them. Well, except, maybe some people believed it just a little? It’s ... I can’t agree with it, but I can’t agree with a lot of things that the law, or the school board, has no business regulating. Part of it’s that you’ve both had impeccable judgment in friends these last years, with just one exception...” She gave Angie a big smile. “So, if you think she’s great, I’m sure she’s great. So, why should the School Board rule against someone great?”

I smiled. “Thanks! I’m glad you both feel that way.”

Angie nodded. “Lizzie’s great and it’d be stupid for them to rule against her. Besides, she’s going to Nationals, for goodness sake! It’d look just idiotic of them to mess with that.”

“We’ll all hope for the best,” Mom said.

We made it to the meeting early, if not as early. Lizzie and her parents, along with Janet, and Tom Myerson, were already in the lobby. Tony, Jessica, Gene, Amit, Cammie, and Mel arrived soon after, and we went in and found seats near the front. The room gradually filled as others arrived, but there were notable absences. No Cindy, and no Randy either. Perhaps they weren’t optimistic about how this was going to go?

The School Board members entered promptly at 7pm. Cam Michaels stood. “Welcome to this special meeting of the Spring Branch ISD School Board. I’m Cam Michaels, School Board President. I’ll remind everyone that there will be no audience input during this meeting. However, we will entertain an appeal, if any, at the August meeting.”

That was new. I wondered if the complainants could appeal, or only Lizzie. That might matter.

Mr. Michaels continued. “Will you all please stand for the Pledge of Allegiance?”

We said the Pledge, and the Texas Pledge, and then he got the meeting started. No invocation this time.

“The purpose of this meeting is to wrap up the protest against the Memorial High Student Council Election. District Counsel will report on his findings, including those concerning which matters are covered by the morals clause for student government.” That drew some frowns from the Board members who I thought were anti-Lizzie. I think they’d realized that there were some significant risks here.

A middle-aged man got up and walked to the microphone. “Some of you don’t know me. I’m Daniel Brenner, general counsel for SBISD. Part of my job is making sure the district stays on the right side of the law and offering legal advice.”

He cleared his throat and continued. “This is an interesting case. The morals clause for student government was placed there way back when they created the program. To the best of my ability to research the policy, it has never been used except when someone violated a school rule. In fact, there are multiple cases where a member of Student Government has violated a law and the morals clause was not invoked. These include speeding tickets, underage drinking violations, curfew violations, theft, and shoplifting. Many of these cases are sealed, but the district is aware of them, and was at the time.”

He paused. “Now, there are cases where a school rule was violated in addition to one of the above incidents. For instance, theft from a school. In those cases, the morals clause was invoked.”

The Board was nodding along. The anti-Lizzie members didn’t look all that happy.

“Now, the fact that a rule has not been applied in a certain way does not mean it cannot be applied in that way, but it creates a body of precedent. The specific question is whether the existence of a law which a student might violate, but where no violation has been proven, nor even a formal accusation made, is sufficient to trigger the morals clause.”

The anti-Lizzie members frowned. One of them raised a hand. My opinion of them dropped.

“Yes, Dale?”

“You said might violate. Isn’t that open and shut? I mean, there’s no ruling, but...”

Mr. Brenner shook his head. “No, it’s not at all open and shut. The Texas Sodomy Law regulates conduct, not identification. One can say they are gay or lesbian without legal issue. As far as I am aware, there is no current allegation of conduct, whether by those who are complaining or from anyone else. Now, if you would, please let me finish before asking questions.”

Dale frowned, but didn’t interrupt again.

Mr. Brenner continued. “My first finding is that the existence of a law which a student might violate, but is not accused of violating, and may not be in violation of, is clearly insufficient to justify a morality clause removal. That would place every student at risk of being sanctioned at a whim. Even if one narrows it considerably, my second finding is that a removal without a finding of a violation of a school or district policy or a finding by a court of a violation is seriously problematic and inadvisable.”

Dale looked like he was about to speak, but held his tongue.

“Now, in this particular issue, as with others, we can look at what courts have held. For instance, a decade ago there were similar cases where students who protested the war in Vietnam in various ways were threatened with discipline. Courts subsequently held that student protests are generally protected activities. While the morality clause isn’t specifically disciplinary, my opinion would be that the district would be on the wrong side of the courts were it to remove someone from student government for participating in a Constitutionally protected protest.”

That drew some surprised looks, and some nods.

“This is relevant, because we can look at the case of Fricke v. Lynch, 1980. The plaintiff, a male student, sued the school principal for refusing to allow him to bring a male date to a school dance. The case was decided in Federal district court, which ruled that the school could not bar same-sex couples from attending school dances.” More surprised looks. Quite a few.

“Mind you, this case came from Rhode Island, a state with a sodomy law prohibiting certain same-sex conduct. At least this district court did not consider sodomy laws to be relevant. Now, this isn’t a binding precedent. Legally, it means nothing to us except as a guide. Part of that guide, though, is that there was no substantive appeal. Sometimes the mere lack of a circuit court ruling is telling. And, if the district court was willing to intervene for a dance — a social event with little educational significance — it seems likely that another court, looking at Fricke, would find the harm done to be more significant if a student were removed from student government, a position which could have a material effect on their college applications.”

He paused, nodded to himself, then continued. “Overall, it is my counsel to the School Board that the Texas Sodomy Law is irrelevant in this case, and that they would be on very shaky legal footing in upholding this challenge or any similar challenge. I’ll entertain any questions now.”

Dale spoke up. “You said, in violation of any district policy. If we had a policy...”

“I cannot imagine a policy in this area that wouldn’t create major headaches for the district. For conduct, perhaps, but not for merely being gay or lesbian. And dating, kissing, anything like that doesn’t count as conduct unless you ban the same conduct for straight couples.”

The room got quiet. After a bit, Cam Michaels spoke. “Any further questions?”

All of the other School Board members shook their heads. “Then I’ll thank Daniel for his thorough analysis of this case. Unless anyone has any reason not to, we can proceed to a vote.”

Everyone shook their heads again. Then they voted. The vote went 3-1 to reject the protest, with Dale joining the majority. Only Barry, who’d originally asked for the matter to be sent to counsel, voted to kick Lizzie off Student Council. He looked pretty upset at the whole thing.

“This matter concluded, I’ll entertain a motion to adjourn.”

A motion was quickly made, seconded, and approved.

All of us got up and started talking, heading for the lobby. Lizzie had hugs for pretty much everyone.

I looked to Tom Myerson, who was grinning. “Well, that went in an interesting direction. Now the School Board is clearly aware of Fricke v. Lynch. I have to wonder if anyone will make a point of that in the future.”

“Perhaps a bit of a strategic error, I’m thinking.”

“Just a bit,” he said, eyes twinkling.

Tony smiled. “Now that that’s settled, I have a surprise. A good one. Principal Riggs has agreed to meet with us about Project Graduation on the 21st. That’ll let us get a running start on the whole thing.”

“Yes!” Lizzie said. “Good news on top of good news!”

After more hugs, we were done. Lizzie was officially in, and our agenda was already moving. We’d have to see where the conservatives would attack next. This had gone worse for them than they could’ve imagined. Perhaps they’d think about that before trying again.

When we got home, Angie gave me a grin, then pulled Mom aside to discuss clothes shopping for our summer program. That gave me a chance to fill Dad in our plan for Mom’s birthday. He loved it, as I figured he would.

9:45pm

Angie slipped in, hopped into bed, rubbed noses, and snuggled.

“That was pretty awesome!”

“They bought themselves a lot of trouble. I just can’t imagine who might involve Fricke come senior prom time...”

She giggled. “Yup. Totally no idea at all who’d take such a righteous stance.”

“You realize we may well have created a ripple here. Even with Fricke already decided, I’m pretty sure there were no celebrated cases involving lesbians at a prom in Houston in 1983. It’d be newsworthy.”

“We didn’t...”

“I don’t know. I don’t think this rebellion happened my last go-round. I’m certain Lizzie wasn’t on Student Council her senior year. I don’t remember any big election, so I doubt there was a protest. How we contributed, if we contributed, is something we may never prove. My guess is that it’s related to Mel. I suspect they drove her off social committee earlier because she didn’t have a bunch of emotional support.”

Angie shook her head. “That’s ... probably right. And, kinda weird. We’re not even trying, here.”

“Speak for yourself! I’m trying to change things.”

She giggled. “I didn’t mean it that way. I meant, to make such a big change. Really, we wouldn’t have, if they had just left well enough alone.”

“And, yet, here we are, watching things change. For the better, I’m sure, but I’m watching in case there’s an effective backlash that makes things worse.”

“Always a concern. So, tomorrow...”

“Shopping,” I said in my most sarcastic tone. “My favorite.”

Whap! “You enjoy shopping.”

“Enjoy is sometimes a bit strong. But, it’ll be fine. And I’m going out with Jasmine afterward.”

“Jasmine tomorrow, Jessica Thursday, Mom Friday. What lucky girl gets your attention Saturday?”

“I’m ... not sure? Jasmine hasn’t mentioned anything. And Mom’s not exactly a date. And, I do have a girl in bed with me tonight, too.”

“Not quite like we’d both like, but ... still not right. Not going to be anytime soon, and that’s okay.”

“It is. More than okay, given how much we do have.”

“Speaking of which, I’m going out with Gene tomorrow, since we missed today and all. Back seat needs more use.”