Texas schools that don’t protect kids against anti-gay bullying now risk Title IX lawsuits

Posted on 30 Jul 2010 at 12:55pm
Stacy Dorman and Debi Ellison have convinced the U.S. Department of Education to investigate their bullying complaint against the Birdville Independent School District.

Two pieces of good news, if you will, on the bullying front today.

First, the Georgetown Independent School District has settled a lawsuit brought by the mother of now-16-year-old Ryan Mitchell, who has reportedly endured years of bullying based on his perceived sexual orientation.

Neither Texas nor the federal government explicitly prohibits anti-gay bullying in schools. But this lawsuit is part of a very positive trend in which the U.S. Department of Education under President Barack Obama is treating anti-gay bullying as a violation of Title IX, which prohibits discrimination based on gender in any education program that receives federal funding. Austin’s KXAN.com reports:

“This is the first suit that the Texas Civil Rights Project has brought under title 9 alleging discrimination based on gender stereotyping and sexual orientation,” said Todd Batson, with the Texas Civil Rights Project. “However, that’s a developing area of the law.”

“I was spit on. I was knocked unconscious. My books were thrown in the trash. My finger was broken, lots of stuff,” said Ryan Mitchell, 16. “People called me gay, faggot on a daily basis.”

Terms of the settlement haven’t been disclosed, but they will include the district working with the Anti-Defamation League’s anti-bullying program, No Place for Hate.

Meanwhile, a little closer to home, a lesbian couple has succeeded in convincing the Department of Education to investigate — under Title IX — longstanding complaints of bullying against the Birdville Independent School District.

The couple, Stacy Dorman and Debi Ellison, allege that their 12-year-old son, Caine Smith, has been the victim of sexual harassment, also prohibited by Title IX. We don’t know all the details of the case, but we’re guessing the bullying is at least partly related to the fact that Caine has two moms and long hair. CBS 11 has the story.

UPDATE: We should know better than to post something like this without calling Ken Upton at Lambda Legal. Upton sent over a lengthy e-mail clarifying — and correcting — my legal analysis. In a nutshell, Upton says public school students have long been protected against anti-gay bullying under the constitutional rights of equal protection and free speech. “I just wanted to be sure we point out that while this administration has demonstrated that it cares more about the health and well-being of students than some prior administrations, and the full weight of the Department of Education indeed does change the equation in our favor, these protections are not new. More parents and attorneys willing to represent students need to be aware of them.” I’ve posted Upton’s full analysis after the jump.

“Your piece on bullying and the federal government’s new-found interest in bringing actions against school districts was news deserving of publicity. I write only to be sure there is no misunderstanding. While federal lawsuits brought by the Department of Education have been scarce, public schools always have been subject to liability in federal court for their failure to protect gay students (or those perceived to be gay) from bullying.

“Lambda Legal brought the first equal protection challenge under the U.S. Constitution for Jamie Nabozny in 1995: For four years Jamie was subjected to relentless antigay verbal and physical abuse by fellow students at his public high school in Wisconsin. Students urinated on him, pretended to rape him during class, and when they found him alone kicked him so many times in the stomach that he required surgery. Although school officials knew of the abuse, they said that Nabozny should expect it if he’s gay. Nabozny attempted suicide several times, dropped out of school, and ultimately ran away.

“The 7th Circuit Court of Appeals became the first federal court to hold that a school that fails to protect a student from anti-gay bullying because of a student’s sex and sexual orientation violates the student’s right to equal protection under the 14th Amendment.  This historic victory, which included a million-dollar verdict and settlement, was the first legal challenge to antigay violence in public schools and led to an explosion in
legal advocacy for LGBTQ youth.

“We saw a second momentous victory in Henkle v. Gregory, where a federal magistrate judge issued an opinion recognizing that not only do students have a constitutional right to equal protection; it is their First Amendment right to be able to speak about their sexual orientation and issues related to it in school settings. The Henkle victory and settlement sent a strong message to schools around the country that discrimination against lesbian, gay, bisexual, transgender and questioning youth will not be tolerated.

“Nevertheless, even to this day, 90 percent of students age 13–18 report that they have been harassed or assaulted at school in the past year, and one third of teens report that students are frequently harassed because they are perceived to be lesbian, gay, or bisexual.

“The truth is that the equal protection guarantee of the U.S. Constitution requires public schools to treat all students equally and to handle all complaints of discrimination and harassment the same.  As the court in Nabozny held, there is no “rational basis for permitting one student to assault another based on the victim’s sexual orientation.” Schools must stop harassment directed at gay male students just as they stop male-on-female harassment. They must punish assaults and abusive language directed against LGBTQ students to the same degree as other assaults or abusive language.  And they must remove the harasser where appropriate rather than transferring the victim. Indeed, school staff may be held individually accountable for failing to protect LGBTQ youth.

“Similarly, Title IX (referenced in your article) prohibits discrimination “on the basis of sex” in education programs receiving federal financial assistance.  This law covers sexual harassment between students as well as teacher-student harassment, and it prohibits harassment of LGBTQ students that is sexual in nature or based on sex stereotyping. Title IX requires schools to adopt and publish grievance procedures, to promptly and equitably resolve complaints and to assign a school employee to coordinate and carry out Title IX responsibilities. Schools violate Title IX if they fail to enact appropriate policies.  Where no policies exist, a school may be liable for harassment even if the school had no knowledge of it. The bottom line is that LGBTQ students must receive the same protections that Title IX affords all students.

“Thanks again for highlighting the new administration’s willingness to get involved in the bullying problem. I just wanted to be sure we point out that while this administration has demonstrated that it cares more about the health and well-being of students than some prior administrations, and the full weight of the Department of Education indeed does change the equation in our favor, these protections are not new. More parents and attorneys willing to represent students need to be aware of them.”

Comments

comments

Powered by Facebook Comments