What's Your Problem?

Document Date: March 1, 2007

Discrimination in public schools comes in many forms, and there are just as many different ways to address it. For some types of discrimination, the laws that we at the ACLU use to combat the discrimination are really clear and well-established. For others, the law is constantly changing and our work may be a little trickier. And for still others, there are few or no protections under the law at all.

It’s helpful for both you and us to have some sense of the right terminology to use when talking about what’s happening to you. For example, you might think that what’s happening to you is harassment when what’s going on would instead be considered a free speech or privacy issue under the law.

Please note that you have far fewer legal rights if you’re a student at a private school than you do at a public school. Most of the information here is about public schools. Some problems may be too complicated to figure out from this page alone, and sometimes there may be local laws in your state that offer more protections than the federal laws we cover here. Also, just because something may be illegal doesn’t mean that a lawsuit is going to be successful or that a lawsuit is the only possible solution. We can help you figure out the best steps to take.

To better understand your rights, what steps you should take to fight back, and how we might be able to help, find the description below that sounds the most like your problem and click on it. You’ll then be taken to information on the area of the law that probably covers your situation.

Whether you find an answer here or not, you can always contact us – we might be able to help!

Your Problem Is About . . .

Gay-Straight Alliances

Your Right to Be Out – or Not Out – at School

Expressing Yourself

Harassment and Bullying

Prom or Other School Dances

How the Law Looks at Your Problem

These are usually considered Equal Access Act issues:

  • My school won’t let me start a GSA
  • My school won’t let our GSA meet on school grounds
  • My school lets other clubs do things that it doesn’t let our GSA do
  • My school says we can’t start a GSA unless we have a sponsor and we can’t find one
  • My school says we have to have a parent’s permission to join the GSA

The federal Equal Access Act is a law that was passed in 1984 that protects the right of students to form clubs at public high schools. The Equal Access Act defines two types of school clubs: curricular and non-curricular clubs. Curricular clubs are clubs that relate directly to classes taught at a school – for example, math club or Spanish club. Non-curricular clubs are anything else, like chess club or anime club. GSA’s are almost always defined as non-curricular clubs.

The Equal Access Act says that if a public high school allows students to form one non-curricular club, then it can’t say no to any other students who want to form any other type of non-curricular club. So if your school allows ANY non-curricular clubs at all, it’s illegal for the school to deny your application to start a GSA.

The Equal Access Act also says that schools that have non-curricular clubs must treat all of those clubs the same. So if the school allows some clubs to make announcements about meeting over the P.A. system or post signs in the hallways about their activities, it can’t then say any other clubs can’t do those things. Also, schools can’t require students to have parental permission to join a GSA unless they also require that for all other clubs.

The flipside of this is that you have to satisfy any rules your schools set up for clubs – so, for example, if the school requires all clubs to have a faculty sponsor, you will have to find one for your GSA to be recognized. Find out exactly what the rules are to start a club at your school and follow them carefully.

Some of these issues may also be overlap with other areas of the law, like equal protection or free speech.

If your school isn’t allowing you to start a GSA or is treating your GSA differently from other clubs, we may be able to help. Please contact us. You can find out more information and resources on the “Library” page.

These are usually considered free speech/free expression issues:

  • My school told me I shouldn’t talk about being gay at school
  • My school told me I couldn’t wear my gay pride t-shirt
  • My school won’t let us publish an article about gay rights in the school newspaper
  • My school won’t let me wear makeup or a skirt because I’m a guy
  • My school is won’t let me wear a tux in my senior yearbook photo or to graduation because I’m a girl

The First Amendment of the U.S. Constitution protects your right to free speech and expression, and forbids the government from violating that right. Since public schools are considered part of the government, it is illegal for a public school to tell you what you can and can’t talk about or who you can be out to, as long as you don’t do it during class time. So don’t climb up on your desk in the middle of social studies class to tell everyone you’re gay, but if you talk to a friend at lunch about being gay that’s perfectly okay.

That right to expression usually extends to things like t-shirts, as long as the school treats all students the same. Schools can enforce dress codes, but they have to enforce the dress code equally for all students. For example, if your school allows other students to wear t-shirts that express their political or social beliefs, then the school shouldn’t tell you not to wear a gay pride t-shirt. But if your school doesn’t allow t-shirts at all, then it’s probably legal for them to tell you not to wear yours.

The right to take a same-sex date to a school dance is usually considered to be a matter of free expression too. We can usually persuade schools to let students bring a same-sex date to the prom or homecoming, so if this is happening to you, contact us!

Things like what you wear for pictures or graduation and what you can publish in the school newspaper are a little different. What you wear for graduation or pictures is an area of the law that isn’t entirely clear. And the school newspaper is usually considered the school’s speech, not yours, because the school pays for and publishes it – although there are state laws that give student journalists more rights in certain states.

If you have questions about your free speech/free expression rights as a lesbian, gay, bisexual, or transgender student, or as a student who wants to be able to speak out at school on those topics, please contact us. You can find more information and resources on the “Library” page.

These are usually considered privacy issues:

  • My school told my parents that I’m gay without my permission

Some federal courts have ruled that schools shouldn’t reveal a minor’s sexual orientation to their parents or anyone else without the student’s permission. Your school should not do this to you, even if you’re open about your sexual orientation or gender identity among friends or staff at your school. If your school is threatening to do this to you and you’re afraid of the consequences at home, call us at 212-549-2673 immediately. If you have questions about your privacy rights, please contact us. You can find more information and resources on the “Library” page.

These are usually considered harassment issues:

  • Other students call me names and threaten me at school
  • Other students call me names and threaten me on the bus
  • My school didn’t do anything about it when I reported being harassed
  • Another student is telling people at school that I’m gay without my permission

Several federal courts have ruled that schools have to take action when they know students are being harassed because he or she is lesbian, gay, bisexual, or transgender. They have to take steps to stop the harassment and protect the students. If you’re experiencing harassment, you should take the following steps:

Put the school on notice that the harassment is happening: Go to your principal, a counselor, or an assistant principal and tell him or her about EACH incident, every time, even if there was a teacher around who saw what happened. Keep your own records of each incident; get a notebook and write down the date, time, where each incident happened, who was involved, who saw what happened, and who you told. If you or your parents send any letters to the school, make sure you keep a copy for your records.

Get in touch with us if your school isn’t helping fix the problem. We’ve had a lot of success in getting schools to do something about the harassment even without going to court.

Some harassment issues may also be overlap with other areas of the law, like equal protection (anchor tag link to the equal protection portion of this page).

If you have questions about harassment, please contact us. You can find out more information and resources on the “Library” page.

These are usually considered equal protection issues:

  • My school punished me for holding hands with my girlfriend or boyfriend but doesn’t do the same to straight students
  • My teacher makes anti-gay remarks about me or to me

The equal protection clause is part of the 14th Amendment to the U.S. Constitution. It provides that the government must treat all its citizens equally under the law. This means that it’s illegal for public schools, which are part of the government, to treat one group of students differently from another group of students just because of who they are – especially if it’s a disciplinary matter.

Equal protection issues often overlap with other areas of the law when it comes to anti-gay discrimination in schools. If you have questions about equal protection, please contact us. You can find out more information and resources on the “Library” page.

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