Graham opposes censorship at Metro 10/21/02
GLAA backs NEA against PFOX discrimination complaint
PO Box 75265
Washington, DC 20013
August 12, 2003
Office of Human Rights
441 4th Street, NW
Washington, DC 20001
Dear: Mr. Saunders:
We have learned through news reports that Parents and Friends of Ex-Gays and Gays (PFOX) has filed a complaint with the Office of Human Rights alleging discrimination by the National Education Association (NEA). According to the reports PFOX has been denied the opportunity to set up booths at NEA's last two annual conventions.
GLAA as you are aware has been involved with defending and strengthening the DC Human Rights Act (DCHRA) since it was first drafted in 1973. GLAA also faced strong criticism for defending PFOX's First Amendment rights to have their ads displayed at Metro stations last year. With this in mind, we feel very strongly that PFOX's claim is without merit.
NEA is subject to the DCHRA in employment and union membership and appears to be in full compliance of these provisions. However, their conventions are explicitly expressive events fully protected by the First Amendment. NEA, like any private entity and especially as an advocacy organization, is fully entitled to determine which groups and which messages may be promoted at their event.
This situation is substantially similar to the case in Hurley v. Irish-American Gay, Lesbian & Bisexual Group of Boston (94-749), 515 U.S. 557 (1995). In that unanimous Supreme Court case, the South Boston Allied War Veterans Council elected not to allow a gay group (GLIB) from marching in their St. Patrick's Day parade. Justice David Souter wrote:
"Although the Council has been rather lenient in admitting participants to its parade, a private speaker does not forfeit constitutional protection simply by combining multifarious voices, by failing to edit their themes to isolate a specific message as the exclusive subject matter of the speech, or by failing to generate, as an original matter, each item featured in the communication. Thus, petitioners are entitled to protection under the First Amendment. GLIB's participation as a unit in the parade was equally expressive, since the organization was formed to celebrate its members' sexual identities and for related purposes."
The NEA is similarly fully entitled to protection under the First Amendment. While the First Amendment trumps the DCHRA, we also fail to see how the NEA is in violation of the DCHRA itself.
NEA's conventions may fall within the definition of a public accommodation -- although they probably do not -- NEA has not denied PFOX members from attending the event. There is no provision requiring a public accommodation to make their space available to all comers to offer their own goods or services, only that no one be denied entrance and full enjoyment of the goods and services provided.
Additionally, it is unclear what category of discrimination is being denied. Certainly not sexual orientation, as gay, straight and bisexual people are all in attendance at the conventions and NEA staff and members and presenters are also well represented across sexual orientation lines. It appears that NEA has only restricted PFOX because of their expressive message which is at odds with NEA's own mission and message.
This fails to be a violation of the DCHRA and is fully protected by the First Amendment.
We hope that you will be able to settle this case quickly.
Cc: Parents and Friends of Ex-Gays and Gays
National Education Association
American Civil Liberties Union/National Capital Area