This memo, excerpted from our "Making Schools Safe" training manual, outlines the legal cases that attorneys can use in anti-harassment lawsuits and can also be used to prepare for the legal portion of the "Making Schools Safe" training workshop.

Laws Available to Address Anti-Gay Harassment

In-school harassment of lesbian, gay, bisexual, and transgender (LGBT) students, and those perceived as LGBT, is broadly governed by two federal laws:  Title IX of the Education Amendments of 1972, and the Equal Protection Clause of the United States Constitution. Another federal statute, the Equal Access Act, ensures non-discriminatory treatment of student clubs, including gay-straight alliances. The first section of this memo briefly outlines the provisions of those federal protections and major cases interpreting schools' duties.

In addition to federal law, several state laws and policies may be relevant to a claim of anti-LGBT harassment in school. The second section outlines some types of state laws that can provide a basis for promoting non-discrimination policies and addressing anti-LGBT environments.

Federal Laws

I. Title IX (20 U.S.C. §§ 1681 - 1688)

Title IX is a federal statute that bars discrimination on the basis of sex in educational programs which receive federal funding. It applies to all schools that receive federal funding, both private and public, from pre-school through universities and graduate school. Single-sex schools and religious schools are exempted from certain requirements, but are still generally covered.

While Title IX does not prohibit discrimination on the basis of sexual orientation, its proscription against sex discrimination can be effective in combating some forms of harassment aimed at students who are or are perceived as LGBT.  

A. Standards of liability for peer harassment

In 1999, the Supreme Court ruled that school districts can be held liable to individuals for damages under Title IX if they fail to respond to known sex-based harassment perpetrated by students against other students. Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999). The standard for holding a school liable for damages to the affected individual, however, is high. Several elements must be met:

1. Actual notice 

The school district must have actual notice of the hostile environment caused by the peer harassment. Merely showing that the school should have known about the harassment is not sufficient. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998).  

2. Appropriate school official 

The individual or body with actual notice of the harassment must possess the authority to take action to end the harassment. See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). This will vary from district to district, depending on the authority of certain jobs. Notice of actual harassment to the principal or directly to the school board or superintendent is the best way to make sure that individuals with sufficient authority know about the problem.

3. Deliberate indifference

For a school to be liable for damages for a violation of Title IX, it must respond to known harassment with ""deliberate indifference."" See Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998). A showing that the school district was aware of the problem and took no action to remedy it will likely constitute deliberate indifference. If, however, the school took some action to address the problem, even if it was ineffective in stopping harassment, deliberate indifference may be more difficult to establish. School officials' actions that were ""clearly unreasonable in light of the known circumstances"" show deliberate indifference. Davis, 526 U.S. at 648.

4. Denial of educational opportunity

Sex discrimination must rise to the level at which it effectively bars the victim's access to an educational opportunity or benefit before a school may be held liable for damages. Davis, 526 U.S. at 652. Evidence that the student frequently missed classes or skipped school out of fear of harassment, that s/he could not concentrate and so his or her grades plummeted, or that s/he had to transfer to a different program or school can be evidence of a denial of educational opportunity. 

B. Application to anti-LGBT harassment

Title IX addresses only sex discrimination. However, regulations from the U.S. Department of Education's Office of Civil Rights (which enforces the statute) make clear that the sex discrimination prohibited includes sexually hostile educational environments created by conduct of a sexual nature. Harassment aimed at students because of their actual or perceived sexual orientation often includes such offensive sexual conduct. The regulations explain:

Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at LGBT students may constitute sexual harassment prohibited by Title IX. For example, if students heckle another student with comments based on the student's sexual orientation (e.g., ""gay students are not welcome at this table in the cafeteria""), but their actions or language do not involve sexual conduct, their actions would not be sexual harassment covered by Title IX. On the other hand, harassing conduct of a sexual nature directed toward LGBT students (e.g., if a male student or a group of male students target a lesbian student for physical sexual advances) may create a sexually hostile environment and, therefore, may be prohibited by Title IX. 

62 Fed. Reg. 12033, 12039 (1997).

The statute also prohibits discrimination that is based on sex stereotyping. Often, harassment targeted at LGBT kids includes epithets or mistreatment directed at the students' perceived failure to meet gender stereotypes.  For instance, students may tease a boy by calling him a girl or a sissy, or teachers may tell a girl she should paint her fingernails and grow out her hair to be more feminine and thereby avoid harassment. These are all ways of enforcing sex stereotypes that can constitute sex discrimination prohibited by Title IX.

In 2000, a federal district court in Minnesota found that a gay student had a claim under Title IX because ""he suffered harassment due to his failure to meet masculine stereotypes."" Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1092 (D. Minn. 2000).

C. Enforcement mechanisms

Title IX permits a private right of action on the part of students for money damages. Franklin v. Gwinnett County Public Schs., 503 U.S. 60 (1992). While there are no administrative exhaustion requirements for filing suit, students should use whatever internal complaint procedure exists at their school. The statute requires schools to adopt and publish effective grievance procedures for resolving complaints of sex discrimination, including sexual harassment. Use of the internal procedure helps to establish that the school had notice of the problem and to document its response (or lack of one).

Alternatively, enforcement power lies with the Office of Civil Rights (OCR) of the Department of Education, which has the power to initiate investigations upon receiving a complaint. The administrative enforcement procedure is an attractive alternative to a private lawsuit because many of the high standards applicable to individual damages claims are less stringent in the context of enforcement by the OCR. Anyone may file a complaint, which should be directed to the local OCR office. The deadline for filing a complaint is 180 days from the last act of harassment or discrimination, but may be extended if the complaint went through internal grievance procedures.

The OCR can investigate the school's policies and procedures for responding to complaints of sexual harassment, its action on the particular complaint, and the overall environment in the school. If the OCR finds a violation, it has the power to cut off federal funding to the school. As part of a settlement, it can require policy changes and measures designed to end discriminatory practices, such as anti-harassment training of school personnel. Notably, though, if the OCR enforces the statute on behalf of an affected student through an investigation and settlement, it does not have the power to collect damages for the student.

The OCR has negotiated settlements in the past on behalf of gay students who were harassed because of their sexual orientation and their gender, and those settlements have included policy changes and mandatory training of school personnel. 

II. Equal Protection

The Equal Protection Clause of the United States Constitution also protects students in public schools from discrimination.  In the landmark case involving a gay student who was severely harassed in Wisconsin, the Seventh Circuit Court of Appeals held that the Equal Protection Clause may be violated when students are severely harassed for being gay and the school takes no measures to stop it. Nabozny v. Podlesny, 92 F.3d 445 (7th Cir. 1996). Jamie Nabozny, the plaintiff in that suit, won $900,000 in damages from his school to compensate for the harassment he suffered.                           

In 2003, a second federal appeals court affirmed that the Equal Protection Clause prohibits schools from ignoring anti-gay harassment.  The Ninth Circuit Court of Appeals ruled that schools must take steps to eliminate harassment once they know it is occurring.  Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130 (9th Cir. 2003). 

The Equal Protection Clause may be implicated in two ways. First, even if sexual orientation is not a ""suspect classification"" for equal protection purposes, a governmental actor still must have at least a rational basis for discriminating against lesbians or gay men. Romer v. Evans, 517 U.S. 620 (1996). When considering Jamie Nabozny's equal protection claim, the Seventh Circuit put it well: ""We are unable to garner any rational basis for permitting one student to assault another based on the victim's sexual orientation, and the defendants do not offer us one."" Nabozny, 92 F.3d at 452.

Second, if the school's response to sexual harassment directed at a boy perceived as gay is different from its response to sexual harassment directed at a girl, the school is probably discriminating on the basis of sex. Classifications based on sex must have an ""exceedingly persuasive justification"" under the Equal Protection Clause. Again, it is hard to imagine such a strong justification for a school's differing treatment of the two complaints. 

III. Equal Access Act (20 U.S.C. §§ 4071-4074)

Students who wish to form gay-straight alliances - often a powerful tool to address anti-gay attitudes in schools - sometimes encounter resistance from school officials. Federal law requires that they be treated the same as other non-curricular groups. 

The federal Equal Access Act requires that a public secondary school that offers any non-curricular student group a meeting place during non-instructional time (or access to other school facilities) must offer all other student groups the same opportunity to meet or use school facilities. By allowing any non-curriculum related group to meet, the school facilitates an ""open forum"" for student group activities. That forum must be available to all on an equal footing, regardless of the content of the speech at the group's meetings. 

Cases addressing the Equal Access Act have focused on what is defined as a ""non-curricular"" club that triggers the protections of the Act. In Mergens v. Westside Community School Dist., 496 U.S. 226 (1990), the Supreme Court opted for a broad definition of non-curricular as ""any student group that does not directly relate to the body of courses offered by the school."" Factors include whether the subject matter of the club is taught in a course offered by the school, or in the body of courses as a whole, or whether participation in the club is required for a course or can provide course credit.  

Most school districts provide facilities and resources to a variety of non-curricular groups, whether it be the chess club, the bowling club, or Students Against Drunk Driving. When they do, they are required under the Equal Access Act to provide facilities and resources to the gay-straight alliance, as well.  Four federal district court decisions have affirmed the right of gay-straight alliances to meet under the Equal Access Act.  See Boyd County High School Gay/Straight Alliance v. Board of Education, ___ F. Supp. 2d ___, 2003 WL 1919323 (E.D. Ky. 2003); Franklin Central Gay/Straight Alliance v. Franklin Township Comm. Sch. Corp., 2002 WL 31921332 (S.D. Ind. Dec. 23, 2002); Colin v. Orange Unified Sch. Dist., 83 F. Supp. 2d 1135, 1148 (C.D. Cal. 2000); East High Gay/Straight Alliance v. Bd. of Ed. of Salt Lake City Sch. Dist., 30 F. Supp. 2d 1356 (D. Utah 1998).  Furthermore, the Act applies to more than just ""clubs""; it applies to any ""student groups,"" regardless of whether they are thought of, or call themselves, clubs.  For instance, the court in the Boyd County case recently held that junior and senior class officer organizations at a high school constituted non-curricular student groups within the meaning of the Equal Access Act.  

One common objection schools have to allowing a GSA to meet is that there is opposition in the community, or even in the school itself.  But the very purpose of the Equal Access Act is to ensure that objections to the group's views, whether they be ""religious, political, or philosophical,"" are no basis for silencing the students or refusing to recognize the student group.  In addition, even significant controversy surrounding the existence of a GSA is no basis for shutting down the club unless the club members themselves cause disruption.  For example, a Kentucky school district recently eliminated a GSA (and all other clubs) because opponents in the community held anti-GSA rallies that attracted thousands of people, and half the student body stayed out of school to protest the school's decision to allow the GSA to meet.  A federal court ordered the school to reinstate the club, ruling that such disruptions to the educational process did not justify shutting down the GSA because the disruption came from others, not from the GSA members.  Boyd County High School Gay/Straight Alliance v. Board of Education, ___ F. Supp. 2d ___, 2003 WL 1919323 (E.D. Ky. 2003).

State Laws

State and local laws and policies can also be a source of protection for youth who are targets of anti-LGBT harassment. At the state level, consider whether your state includes sexual orientation or gender identity in its nondiscrimination law. If it does, check to see whether it covers students or schools.

Eight states have specific protections against sexual orientation discrimination or harassment for students as part of their statewide education codes: California, Connecticut, Massachusetts, Minnesota, New Jersey, Vermont, Washington, and Wisconsin.  Three states also have specific protections against gender identity discrimination:  California, Minnesota, and New Jersey.  If your state or school district does not explicitly protect against sexual orientation- and gender identity-based discrimination or harassment, it may have a general provision in the education code entitling all students to a safe educational environment. These general laws can be useful tools in requiring educators to take action against anti-LGBT harassment.

State ethical codes for teachers can also be a source of protection. At least four states - Alaska, Connecticut, Florida and Pennsylvania - expressly oblige teachers, as a condition of maintaining their licenses, not to discriminate against students based on sexual orientation.

Finally, state tort laws, as well as criminal laws, are always available where incidents of harassment rise to those levels.

School Policies

Many school districts have nondiscrimination and anti-harassment policies that include sexual orientation and gender identity. The best way to prevent harassment and discrimination is to make sure that everyone in the school community understands that these things are not allowed. Including sexual orientation and gender identity in district policies will help to send that message.

School districts must strike a balance between anti-harassment policies that adequately protect students from harassment but do not limit students' First Amendment rights. In 2001, a federal court overturned one school district's policy because it restricted student speech that did little more than cause hurt feelings. Saxe v. State College Area Sch. Dist. 240 F.3d 200 (3^rd Cir. 2001). The ACLU uses model policies that strike the right balance and should pass any court's scrutiny. Attorneys at the ACLU Lesbian & Gay Rights Project can help draft policies - call 212.549.2627. 

ACLU Model Anti-Harassment Policy

The _______________ School District is committed to providing all students with a safe and supportive school environment. Members of the school community are expected to treat each other with respect. Teachers and other staff members are expected to teach and to demonstrate by example that all members of the community are entitled to respect.

Harassment of a student by another student or by a teacher or other staff member is a violation of school policy. This includes (but is not limited to) harassment based on race, national origin, marital status, sex, sexual orientation, gender identity, religion, or disability. Punishable harassment is conduct, including verbal conduct, (1) that creates (or will certainly create) a hostile environment by substantially interfering with a student's educational benefits, opportunities, or performance, or with a student's physical or psychological well-being; or (2) that is threatening or seriously intimidating.

Sexual harassment is a form of harassment that also violates school policy. Punishable sexual harassment is an unwelcome sexual advance or sexual conduct, including verbal conduct, (1) that is tied to a student's educational benefits, opportunities, or performance, or to a student's physical or psychological well-being; (2) that creates (or will certainly create) a hostile environment by substantially interfering with a student's educational benefits, opportunities, or performance, or with a student's physical or psychological well-being; or (3) that is threatening or seriously intimidating.

To prevent harassment in the first instance, staff members should teach - teach why harassment is wrong and teach that tolerance and respect are essential to a free society. In response to an act of harassment, staff members should intervene immediately to stop the harassment and, if appropriate, should punish the harassment promptly, consistently, and proportionately to the seriousness of the act. But the response should not end there; rather, staff members should deter future harassment with continuing lessons of tolerance and respect.

Note: Schools should develop and publicize rules that explain how harassment can be reported and how reports of harassment will be handled. In some cases, schools are required to do so by federal law. These rules should require staff to report harassment to a designated school official; should prohibit retaliation against anyone who reports harassment; and, to the extent possible, should protect the confidentiality of anyone who is involved in a report of harassment.

ACLU Model Nondiscrimination Policy

The _______________ School District is committed to equal opportunity for all students and all staff.

It is District policy that no one shall be treated differently, separately, or have any action directly affecting him or her taken on the basis of race, religion, national origin, marital status, sex, sexual orientation, gender identity, or disability where a person is otherwise qualified or could be with reasonable accommodation.

The immediate remedy for any act of discrimination shall be to end it, treat the individual equally, and, as much as practically possible, to eradicate any effects of discrimination. Discipline should be imposed where appropriate.