Gender and Sexually Variant Students The Legal Responsibilities

Gender and Sexually Variant Students The Legal Responsibilities of Educators This is a guide and over view and legal advice from a competent lawyer is strongly advised Jennifer Ellis, Esquire Maxine Ellis Center for Justice and Equality 717 -856 -6370 jellis@melliscenter. org 9/21/2021 1

Who Am I & Why Am I Here? n Regular employment – Attorney for the Pennsylvania Bar Institute Nonprofit continuing legal education n Teach and organize programs n 9/21/2021 2

What Does the Center Do? n Focus on education n Teach different people and groups about the rights and needs of GLTB people. 9/21/2021 3

What Does the Center Do? n Lawsuits as a last resort n When all other efforts fail or the organization or school refuses to negotiate 9/21/2021 4

Why Avoid Lawsuits? You need the money to educate your kids. 9/21/2021 5

Why Sue? All kids have a right to be safe at school. 9/21/2021 6

What If Scenarios 9/21/2021 7

What If? n Think about the following scenarios n What would you do if the following happened? n Do you know what the appropriate response is legally? 9/21/2021 8

What If? What if a male student came to school in a skirt and blouse? 9/21/2021 9

What If? What if a female student came to school in overalls and a flannel shirt? 9/21/2021 10

Answer This is a dress code issue n This is an equal protection clause issue n You must treat all of your students the same when it comes to clothing. n 9/21/2021 11

Answer n You may control dress to the extent that: n The clothing causes a "material and substantial disruption of the educational process" n Someone else’s dress harms the rights of others. 9/21/2021 12

Answer n You may not control dress because other students or teachers might be offended or upset by a student's clothing n Such clothing does not constitute a sufficient disruption to justify suppression or punishment. 9/21/2021 13

Suggested Response n Recently I was told that a school administrator had the following response when a young man wore a skirt to school. n 9/21/2021 Our dress code requires skirts to be no less than so many inches below the knee. Please wear a longer skirt next time. The boy did. 14

What If? What if a female student brought another female to the prom? A male student another male? 9/21/2021 15

Answer n The prom question is a well-settled one. n You must allow students to bring same-sex partners to dances. 9/21/2021 16

What If? What if a student questioned curriculum around same sexuality in health class? 9/21/2021 17

Answer n You have the right to control your curriculum. n However, a student also has the right to discuss homosexuality, the fact that he or she is gay, the fact that his parents are gay, and so on. 9/21/2021 18

Answer n n n A teacher who wants to teach about gay and lesbian issues should check the curricular policies. A teacher may mention the word gay or lesbian in an accurate matter, for the most part. If you plan on teaching gay and lesbian issues, check with the school administrator if you are uncertain as to your school’s policies. 9/21/2021 19

What If? What if a student who has two mothers asks to have his mothers identified as his parents on all school records? 9/21/2021 20

Answer n If both mothers have a legal relationship with the child you must include both mothers on the records. n In 2002 the Supreme Court of Pennsylvania has held that same-sex, second parent adoption is legal. 9/21/2021 21

What If? What if students ask for support and full privileges to form a Gay. Straight Transgender Alliance club in your school? 9/21/2021 22

Answer n The Equal Access Act of 1984 applies here. n If you have any club that meets the following requirements: 9/21/2021 23

Answer Noncurriculum related n Student Group n Meets at School n You must allow GSTAs to meet at your school too. 9/21/2021 24

What If? What if a student reported to the proper school disciplinarian that he was called “faggot” repeatedly when changing classes? 9/21/2021 25

What If? What if a teacher uses anti-gay slurs in the classroom and a student complains? 9/21/2021 26

What If? What if a student is attacked physically because he is perceived as being homosexual? 9/21/2021 27

What if? What if you do not make your school safe for gay, lesbian, bisexual, transgender, questioning youth? 9/21/2021 28

Answer All students, regardless of sexual orientation, have a legal right to a safe school. If you are deliberately indifferent to antigay harassment, you will be sued and you will be found liable. 9/21/2021 29

Answer “If a kid with a gender issue is being harassed and the school doesn’t mobilize, the institution fails” –Anthony Scariano, attorney to 200 Illinois School Districts. 9/21/2021 30

Answer Title IX applies to all schools. n It prohibits harassing conduct of a sexual nature n This includes targeting a lesbian student for physical sexual advances n This includes any conduct that creates a sexually hostile environment. n 9/21/2021 31

Answer Title IX does not apply to simple heckling. n However, the Constitution provides a right to equal protection under the law. n Pennsylvania has an ethics code which requires administrators to take sexual-orientation discrimination seriously. n 9/21/2021 32

Answer n In Pennsylvania the Ethnic Intimidation Act includes GLTB individuals. n If a hate crime occurs in your school you have a duty to report it to the police. 9/21/2021 33

Legal Support n Title IX of the Education Amendments of 1972, 20 U. S. C. § 1681; Davis v. Monroe County Bd. of Educ. , 526 U. S. 629 (1999) (student-on-student sexual harassment); Gebser v. Lago Vista Indep. Sch. Dist. , 524 U. S. 274 (1998) (teacher-on-student sexual harassment). n Nabozny v. Podlesky, 92 F. 2 d 446 (7 th Cir. 1996) (student-on-student sexual orientation harassment. ) 9/21/2021 34

Suggested Responses n Create a policy that makes it very clear that anti-gay harassment will not be tolerated by staff or students. 9/21/2021 35

Anti-Harassment Policy n Set forth the school’s commitment to protect students from harassment and violence and to maintain a nondiscriminatory environment. 9/21/2021 36

Anti-Harassment Policy n Identify the types of harassment prohibited. Give examples. n Require staff to report harassment when they learn about it. 9/21/2021 37

Anti-Harassment Policy n Explain how to report harassment and to whom to report it. n Describe the various steps the school will take to respond to reported incidents. 9/21/2021 38

Anti-Harassment Policy n Include formal complaint procedures. n Prohibit retaliation against persons who report harassment or participate in related proceedings. 9/21/2021 39

Anti-Harassment Policy n Ensure that all members of the school community are aware of their rights and responsibilities. 9/21/2021 40

Anti-Harassment Policy n Make sure your student codes of conduct and personnel policies address these issues. n These suggestions and the following advice are taken from the Department of Education Office for Civil Rights. 9/21/2021 41

If Harassment Occurs n Investigate immediately Determine the scope and severity n Identify the perpetrators n Evaluate the harm to victims n Determine the appropriate corrective action n 9/21/2021 42

If Harassment Occurs n Immediately refer the incidents to law enforcement authorities when the acts are violent or criminal. n If the incidents are well known or of public concern, school officials should give a forthright announcement and promise results. 9/21/2021 43

If Harassment Occurs Punish the student harassers as is appropriate. n Discipline any employee harassers as is appropriate. n Engage in ongoing remedial action to prevent reoccurrence. n Increase adult supervision n Monitor victim’s security n n Provide emotional and psychological support for the victim as needed. 9/21/2021 44

If Harassment Occurs n When appropriate, use informal procedures for resolution. n Peer mediation or counseling but only if n Voluntarily selected by all participants. n Victim has full knowledge of rights for the formal process n School determines that peer involvement is appropriate. 9/21/2021 45

If Harassment Occurs n Teach students who engage in harassing conduct more acceptable behavior Especially if the students are very young n Or the Conduct was not intended to be harmful. n 9/21/2021 46

A Formal Complaint Process n A formal complaint process is necessary to ensure students and parents have a means of obtaining corrective action. n Federal laws require due process. 9/21/2021 47

A Formal Complaint Process Should Include: Notice to all concerned parties. n Opportunity for a prompt, thorough and impartial investigation, including opportunity to present witnesses and other evidence. n Confidentiality to the extent possible n Notification to complainant of outcome (while respecting privacy laws) n Effective remedies when discrimination is found. n 9/21/2021 48

Involving the Police n n n If a crime happens, notify the police. This includes hate crimes on school property or in connection with off-site school activities. Consider developing guidelines for involvement of police with less serious instances of harassment if these could lead to retribution. Develop a line of communication with law enforcement. If you have on-site security, involve them. 9/21/2021 49

Involving the Police n If a crime does occur preserve evidence. n n Balance this need however with the need to minimize student exposure to harmful messages. If harassing graffiti occurs preserve it when n n 9/21/2021 Repetitive or persistent Located in a place of high visibility Targeted Identifies the perpetrator Contains incitement to violence, threats or intimindations and/or targets a particular group. 50

Involving the Police n Use methods to reduce exposure to the offense which do not destroy the physical evidence. Cover it or conceal it. n Photograph all instances of hate-motivated or harassing graffiti. n If it is a crime, preserve it until the police approve removal. n 9/21/2021 51

Have a Crisis Intervention Plan n Include methods of: n Rumor control n Media contacts n Close and continuing communication with students, parents, community and law enforcement liaison n See Early Warning, Timely Response: A Guide to Safe Schools: http: //www. ed. gov/offices/OSERS/OSEP/earlywrn. html 9/21/2021 52

Remember n It is not the victim’s job to end the harassment. It is yours. n Do not victimize the victim in your efforts to solve the problem. 9/21/2021 53

Reality Check What has happened to schools that have failed to appreciate the rights of their students when it comes to GLTB issues? 9/21/2021 54

Some Cases n Gay students have the right to attend the prom with a partner of their choice. Fricke v. Lynch in his official capacity as Principal of Cumberland High School. 9/21/2021 55

The Prom n n n In this case a Rhode Island school was sued because it would not allow two boys to attend. This 1980 case found that school had to allow the boys to attend together and also, had to provide them with security if it seemed necessary. In addition Title IX forbid discriminating on the basis of sex in its invitations to the prom. 9/21/2021 56

The Prom More recent cases have continued to uphold the right of same-sex couples to attend the prom. n Attempts to prevent same-sex couples from attending the prom together will most likely result in a lawsuit. n Precedent suggests, you will lose. n 9/21/2021 57

Gay-Straight Alliances If you allow non-curricular groups to meet on campus and do not allow gay-straight alliances, you will be sued. n On February 3 rd of this year the ACLU reached a settlement with a school that refused a GSA. n 9/21/2021 58

Gay-Straight Alliances n The settlement required the school to: Treat the gay-straight transgender alliance no differently from other clubs n Conduct an annual training session on all types of harassment (including a special component on antigay harassment) n Revise all student activities policies to treat members of all clubs equally. n 9/21/2021 59

Gay-Straight Alliances 9/21/2021 n Fortunately the students didn’t ask for any money. n Unfortunately: "The Boyd County Public Schools wasted over a year’s time and a lot of taxpayer money to try to stop these students from having their club, when a federal judge had already made it clear that the district was breaking the law by trying to silence students who wanted nothing more than a place to talk about how to stop anti-gay harassment and discrimination at school and in the community" 60

Gay-Straight Alliances n In 2000 students in Wisconsin won the right, with the assistance of the ACLU, to have a gay -straight alliance. n Several schools in Pennsylvania now have GSAs. Most recently in Cedar Crest. One of the reasons provided by the superintendent of schools was legally, he had no choice. The other was that it was the right thing to do. 9/21/2021 61

Gay-Straight Alliances n If you refuse to allow a gay-straight alliance to have the same rights as other student run groups at your school. You will end up on the losing side of a lawsuit. 9/21/2021 62

Students Have the Right to be Out In 2003 a school in Arkansas disciplined a student for stating that he was gay. n The ACLU became involved. n In a conference with the judge, the Pulaski County Special School District agreed with the American Civil Liberties Union and a federal judge that students have a Constitutional right to be openly gay in school. n 9/21/2021 63

n n This decision opens up the gate for a lawsuit against the school. The ACLU contends that school officials violated the boy’s rights to free speech, equal protection, and privacy, and that they violated the establishment clause of the First Amendment by preaching to him and forcing him read the Bible as punishment. 9/21/2021 64

n Similarly, a school was forced to back down when it disciplined a student for discussing the fact that his mother was gay. 9/21/2021 65

Harassment There have been numerous cases on anti-gay harassment over the past few years. n These cases have resulted in the following lessons: n 9/21/2021 66

Harassment School districts will be held liable for failing to protect students from harassment based on sexual orientation or gender identity. n Many states offer no clear directive to schools so schools fail to act. This leaves them open to liability. n 9/21/2021 67

Harassment n n In all of the cases brought to date, the students have either won in court or a settlement has been reached between the school district and the student(s). These cases are expensive. n n n 9/21/2021 School districts have paid anywhere from $40, 000 to $1, 100, 000 to the plaintiff(s) in settlements. This does not include attorney’s fees. Many of these cases were brought in states that do not specifically forbid discrimination based upon sexual orientation. 68

Flores v. Morgan Hill Unified School District (N. D. Cal. ) Facts: Suit brought on behalf of students who were subjected to daily harassment and threats of physical violence on the basis of their real or perceived orientation or gender. n Legal Basis: Equal Protection Clause, Title IX and State Laws. n 9/21/2021 69

Result n n n Settlement agreement reached Mandatory staff training including retention of an agreed upon trainer. Mandatory student training. Alteration of policies to prevent future harm See http: //www. aclunc. org/students/040106 settlement. pdf 9/21/2021 70

Result In addition to all of the above: 1. 1 million dollars. 9/21/2021 71

Henkle v. Gregory, 150 F. Supp. 2 d 1067 (D. Nev. 2001) n Facts: Constant harassment, discrimination, intimidation based on his sex and sexual orientation, name calling, assaults, punched in face, lassoed around the neck, threatened, transferred from school to school and told to keep silent about his sexual orientation, put into adult education program 9/21/2021 72

n Claims: n n Money n n Title IX, Equal Protection Clause, First Amendment, state tort claims $451, 000 Other: n n n 9/21/2021 New harassment policy including sexual orientation Training for staff Training for students 73

Loomis v. Visalia Unified School District (E. D. Cal. ) Settled 2002 n Facts: Verbal harassment and name calling by teachers and students, spit on in hallway, put in independent study program (thereby losing ability to attend any U. C. school), subjected to sexually suggestive touching n 9/21/2021 74

n Claims n n Money n n Equal Protection Clause, Due Process Clause, state law claims 130, 000 Other 9/21/2021 75

n Required training for students, including a mandatory 50 minute training n Required to integrate peer-to-peer education and counseling into existing programs n Required to revise anti-harassment policy to include real or perceived sexual orientation and gender Required training for school staff, including a onetime 3 hour program, and 30 minute annual training n 9/21/2021 76

9/21/2021 n Required to have two compliance coordinators at each school, one male and one female (although only one required for elementary schools) n Required to submit an annual report n Required to keep and submit incident records 77

Dahle v. Titusville (Pa. ) Settled 2002 n Facts: Severely tormented based on sexual orientation, daily verbal and physical assaults over 5 -year period. Harassment was so traumatizing that student attempted suicide. n Money: $312, 000 n 9/21/2021 78

Lesson Learned? 9/21/2021 n Do not tolerate harassment based upon sexual orientation at your schools. n It will cost you a lot of money, a lot of time and a lot of public opinion problems. n No matter how hard you fight, if you allowed harassment to occur, you will either end up settling or end up with a verdict against your district. 79

Need Help? n Feel free to contact me. n I would much rather help you resolve a situation and save all concerned the money, time, and difficulty caused by a lawsuit. 9/21/2021 80

Need Help? n Contact Common Roads in Pennsylvania n They will come into your school and train you, your staff, and your students. n www. commonroads. org 9/21/2021 81