Students have been repeatedly told by Moser that the school does not have a GSA because they have been unable to find a faculty sponsor, according to Amanda Goad, staff attorney with the ACLU Lesbian Gay Bisexual and Transgender Project.
"There is a disturbing pattern where several teachers told the students they were interested, but when the kids go to the principal, they aren't any longer," she said.
Goad said she was "optimistic a lawsuit will not be necessary" now that the ACLU was talking with school officials about the legality of banning student free speech.
The Supreme Court affirmed first amendment rights for students in 1969 in the Tinker v. Des Moines decision. Three high school students defied their principal and wore black armbands to school to protest the Vietnam War.
The landmark decision ruled that, students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
Since then, the court has narrowed that ruling, giving schools the right to censor speech to maintain order and protect students from harmful messages.
In 2007, in a high-profile case known as "Bongs for Jesus" the Supreme Court ruled in Morse v. Frederick that Alaska public school officials had not violated a student's free speech rights by punishing him for displaying a "cryptic" drug-themed banner during a public event. The court overturned a lower court decision that cited the 42-year-old Tinker case.
But the ACLU said the issue is about more than free speech.
"All students deserve a safe and respectful learning environment," said Goad. "Harassment, abuse or censorship of any student -- regardless of sexual orientation -- is absolutely reprehensible as well as illegal."
"We think students rights can be expressed on t-shirts and jewelry," said Goad. "If we had to sue, we would be vindicated."