Memo: Earlier Gay-Straight Club Stalled

El Modena High School’s principal may have quietly stymied student efforts to create a gay-straight club more than two years ago, before founders of such a club, formed later, sued the Orange school system for not allowing it to meet on campus, according to a memo revealed in court Monday.

Principal Nancy Murray has denied that she tried to keep students from forming such a club during the 1997-98 school year.

But the memo, written by Orange Unified Assistant Supt. Neil McKinnon last September after the current club submitted an application, said, “Last year when this came up, Nancy Murray and I conferred and she was able to stall them off until the end of the year.” Parts of the memo were read aloud during a court hearing Monday, and The Times obtained a copy of it afterward.

The earlier attempt at forming a club has come up as a potentially key issue, with lawyers who are suing the school district saying that it shows a history of discrimination against such clubs.

“The memo seems to be an admission that students in earlier years that tried to form the groups were discriminated against,” plaintiffs’ attorney Laura W. Brill said. “It suggests that high-level district officials were aware of efforts to prevent students from meeting.”

The teenagers in the earlier organizing effort, reached by The Times, said Murray had discouraged them from forming the club, telling them at first to revise their application and later that if they persisted they would endanger all clubs at the school. One club organizer says he was transferred from the school in retaliation. Murray denies that she discouraged the students or that any retaliatory transfers took place, though she acknowledges that she asked for revisions and told them their effort could hurt other clubs.

Murray would not comment on the memo revealed Monday. McKinnon did not return phone calls about the memo. Orange Unified School District attorney James Bowles said McKinnon has testified in deposition that the memo was intended only to indicate that the earlier application process had run out of time, not that it had been intentionally stifled.

The school board rejected the student application this academic year to form a Gay-Straight Alliance. Co-founders Anthony Colin and Heather Zetin sued, saying that under the federal Equal Access Act school officials must allow the club to meet on campus if it allows that for other extracurricular clubs and accepts federal money, as it does.

Federal District Judge David O. Carter said Monday that if the students who submitted the earlier applications were seniors at the time, the plaintiffs would have a strong argument that school officials were trying to “outlast” the applicants, simply waiting until they graduated to make the club proposal go away.

The school district’s attorneys said they were not sure whether the students were seniors at the time.

“I will want to know that at trial,” Carter said.

But two of the students, Amber Pfeifer and Jonathan Terech, said they were indeed seniors at the time.

Discussion about the prior club application arose during Monday’s hearing, when Carter heard arguments on whether school board members should be subject to questioning by the club’s lawyers before the trial begins.

He will issue his ruling Wednesday but indicated he will likely favor their questioning.

Official’s Call to ‘Strategize’

Trustees who voted down the gay-straight club application in December contended that it might interfere with the school’s sex education curriculum and might encourage teens to teach one other about sex. The case is expected to come to trial early next year; until then, Carter has ruled, the group can meet on campus.

McKinnon’s September memo, addressed to district Supt. Barbara Van Otterloo, also said that Murray had planned to meet with the latest student applicants and, as she had done previously, suggest they rework their application.

“She is not optimistic that this approach will resolve the issues,” McKinnon wrote. “Barring that, I need direction on how to proceed. If she denies the request, I will be the point of appeal. I do not mind fighting this issue but we need to strategize where it is going to and plan appropriately.”

Court documents also show that McKinnon wrote another memo about the earlier effort, in February 1998, when the group was pulling together an application.

In that memo, McKinnon said that according to federal law, a gay student club couldn’t be barred from meeting unless schools were willing to sacrifice their service clubs, Christian groups and other extracurricular organizations. Less than two years later, the school board would refuse Colin and Zetin’s club petition.

“Dr. McKinnon’s memo makes clear that district officials knew as early as 1998 that federal law required them to permit such clubs to meet, and it suggests they were flouting the law when they discriminated against Anthony Colin and his fellow students,” said David C. Codell, an attorney for the students. “That previous attempts to form such student groups were unsuccessful strongly suggests a pattern of discrimination.”

McKinnon declined to discuss the 1998 memo.

District spokeswoman Judy Frutig said, “My only comment is we’re not going to argue the case out of court.”

The earlier effort started in late 1997 or the beginning of 1998, when El Modena senior Pfeifer and other students proposed a Gay-Straight Alliance. The school board was scheduled to discuss the issue in closed session in meetings on Feb. 12 and 26. It is not clear if the topic was discussed, but district minutes show that no action was taken.

School board President Linda Davis and Trustee Robert Viviano said they remember hearing about the 1998 application. “But I believe it was handled at the school level--that’s my very, very best recollection,” Viviano said. “I don’t think the school board voted on anything, and I don’t think we were asked to.”

District spokeswoman Frutig and district lawyer Bowles said they see no inconsistency between McKinnon’s memo and the board’s rejection of the club in December 1999. Frutig said the administrator is an educator, not a lawyer.

“This board did not deny that club,” she said. “They denied the application and invited them to come back with modifications,” such as changing the name to “the Tolerance Club” and vowing not to discuss sex, sexuality or other topics covered by the state Education Code. The students declined to make the changes because other clubs aren’t subjected to the same restrictions, and they said it was never their intention to discuss sex at meetings.

In their court papers, lawyers for the school district say the first effort fizzled because students did not find a faculty advisor. But interviews with El Modena’s principal, two of the students involved and a would-be advisor show that for at least part of the school year, an advisor had signed on.

Bowles said the information in the court documents is the best he had at the time. He based his responses on conversations with current school district employees. “All I can tell you is we ask people questions, we get answers and we put [the information] down,” he said. “It may be that people’s memories are faulty, or that, with the passage of time, the people who know of the exact facts are no longer with the district.”

Each of the people involved in the 1998 effort offers a slightly different take on it. One student contends that his transfer from the school for truancy occurred in retaliation for trying to form the club. Another said administrators pressured her not to form the group.

Murray, the El Modena principal, said that when she was first presented with an application, she told students how to properly complete their paperwork and that the counselor whom the students first listed as advisor indicated that she had not offered, or been asked, to take that role in their club. The students say the counselor simply decided to back out.

In late January 1998, Pfeifer said, she was called to the principal’s office. Murray told her their conversation was “off the record” and that she knew the students could legally form the club, Pfeifer said.

“The only way they could stop us was if they canceled all the clubs,” said Pfeifer, now 19. She works as an account manager in New York but plans to return to Southern California in a few weeks to study cosmetology. Murray “asked me to think how the student body would feel when all the clubs were canceled because of our request.”

Widely Differing Versions of Events

Co-organizer Jonathan Terech, who now manages a clothing store in Mission Viejo, said he was supposed to be at the meeting, but he was out sick. Terech said Pfeifer told him about the meeting, and that her description at the time matches her recollection now.

Murray said she does not remember a meeting alone with Pfeifer, saying other students were present at any meetings on the club application.

A few days after the meeting, Terech says, he was forced to transfer from El Modena back to his home school, Orange High, for excessive absences, which he said violated the agreement allowing students to transfer among district schools.

Terech, now 19, said most of the absences were excused and resulted from his involvement in drama and choir. He said he believes the real reason for his transfer was trying to form the club.

Murray said she vaguely remembers Terech but doesn’t recall him being involved in the club application, that only girls applied to form the club. Pfeifer and Terech said he was the driving force behind the application.

As for the transfer, Murray said the assistant principal handles discipline, not she. In any given year, she said, half a dozen or so transfer students are asked to leave midyear because of problems with grades, attendance or discipline.

The other students continued the effort after Terech transferred, finding a new advisor: football coach and civics teacher Steven Howard. “I was teaching civics over there,” said Howard, now at Bolsa Grande High in Garden Grove, “and we did a lot of talking about rights and equal access.” He agreed to be their advisor and signed the application.

Murray said she did not pressure the students to drop the club effort. She met with them again in April to discuss the revised application and said she presented what she saw as the realities of the situation: The application would attract attention. The school board could respond by closing all clubs. It could be a hard road.

“I just remember thinking [the club’s mission statement] was a rambling phrase,” she recalled. “And, yes, it was probably going to be controversial. I thought, ‘This really doesn’t tell me what the [club’s] purpose is’ and it was kind of messy. They agreed, and they didn’t argue.” According to Murray, she suggested that they rework the application with their advisor’s help and then resubmit it. She said she never saw another application until Colin began his push 18 months later.

Would-be club advisor Howard said he believes a number of factors doomed the first effort: The students started in their senior year and weren’t as dedicated to the cause as Colin is. The school probably stalled things. And Howard himself announced his move to the other district in May 1998.

“I think that there was probably an intent to stonewall it by the administration,” he said. “It was not a popular idea with administrators then, any more than it was this [school] year. At the same time, you had a group of seniors . . . and it wasn’t high on their list of priorities.”

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Times staff writer Ann L. Kim contributed to this report.