Addressing the Mistreatment of
LGBT Students in the U.S. Public and Private Schools
· Legal Action Generally
While a growing number of jurisdictions are adding explicit protections in their laws to address discriminatory activity "on the basis of sexual orientation," it is important to note that there are a very large number of existing legal principles that may be employed…
(a) by school officials to discipline students who harass, threaten, seek to intimidate, or physically injure gays, and
(b) by aggrieved families to hold schools themselves accountable for this mistreatment.
· Mandating Changes in the Curriculum
In addition, curricular changes can be mandated both through changes in state education codes and via policy changes at state departments of education, local school districts, and individual school sites. Curriculum addressing LGBT issues is highly controversial, particularly given the range of strong views in this area on both the left and the right. Yet a reasonable middle ground can and should be identified in this context.
Just requiring the schools to address LGBT issues at all is an important step in the right direction. A failure to address LGBT-related questions and concerns on any level in the school curriculum sends the not-so-subtle message to both gays and straights that LGBT's belong, at best, at the margins of our society. Such a message only contributes to further marginalization and mistreatment.
At a minimum, such a curriculum might recognize the following basic foundational facts: (1) that there is a broad consensus among experts in the relevant fields today that gays are wired differently and that being gay is not a matter of choice but a basic, immutable identity, (2) that a sizable minority of (often) religious Americans still express some level of discomfort with homosexuality or outward manifestations of homosexual activity, and (3) that this discomfort is particularly real and palpable in certain segments of our society, such as organized religion, the military, and high profile sports competition. Such foundational material, conveyed to students who – particularly at the high school level – have the maturity to confront the realities of our society and culture, will not only provide a greater understanding of these issues across the board, but will invariably lead to a greater respect for the complexities faced by those who are coming to terms with their own identities in this regard.
· A Broad Continuum of Strategies and Goals
From
a legal and public policy perspective, it is useful and appropriate to identify
a broad continuum of strategies and goals that include – but are not limited to –
vigilance, mandatory curricular changes, mandatory professional development for
teachers and administrators, intervention at the earliest possible stages,
punishment for unacceptable behavior, and lawsuits to hold educational
institutions accountable.
· Noteworthy Examples of
Recent Legal Victories
The
recent (August 2002) settlement agreements won by aggrieved plaintiffs in
California (Loomis)
and Nevada (Henkle
v. Gregory) are examples of successful legal activity in this
regard. The legal complaints filed in
those cases are particularly noteworthy:
A. Legal Complaint in Gay Straight Alliance Network & George Loomis v. Visalia Unified School District, U.S. District Court (E.D. Cal.) (Filed January 2001)
B. Legal Complaint in Henkle v. Gregory, U.S. District Court (D. Nevada) (Filed January 2000)
· Noteworthy Example of State
Legislation: California Penal Code Section 422.6
California Penal Code Section 422.6 is a noteworthy example of how existing laws can be strengthened by providing explicit protection for persons who have been mistreated on the basis of their sexual orientation. It provides, in pertinent part, that:
No person…shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States because of the other person's…sexual orientation, or because he or she perceives that the other person has…[such]…characteristics.
It
should be noted that not only does this code section criminalize such behavior
across the board, but that – under California Education Code Sections 48900.3
and 233 (e) – school officials may suspend or expel students in the public
schools for causing, attempting to cause, threatening to cause, or
participating in this sort of activity.
Return to UCLA LGBT-Related EdLaw Resources Home Page
Updated
as of February 2, 2003, 1:15 p.m.