Duncan Issues "Dear Colleague Letter" on Sexually-based Harassment and GSAs

This from the US Department of Education:

June 14, 2011

Dear Colleagues:

Harassment and bullying are serious problems in our schools, and lesbian, gay, bisexual, and transgender (LGBT) students are the targets of disproportionate shares of these problems. Thirty-two percent of students aged 12-18 experienced verbal or physical bullying during the 2007-2008 school year;1 and, according to a recent survey, more than 90 percent of LGBT students in grades 6 through 12 reported being verbally harassed — and almost half reported being physically harassed — during the 2008-2009 school year.2 High levels of harassment and bullying correlate with poorer educational outcomes, lower future aspirations, frequent school absenteeism, and lower grade-point averages.3 Recent tragedies involving LGBT students and students perceived to be LGBT only underscore the need for safer schools.

Gay-straight alliances (GSAs) and similar student-initiated groups addressing LGBT issues can play an important role in promoting safer schools and creating more welcoming learning environments. Nationwide, students are forming these groups in part to combat bullying and harassment of LGBT students and to promote understanding and respect in the school community. Although the efforts of these groups focus primarily on the needs of LGBT students, students who have LGBT family members and friends, and students who are perceived to be LGBT, messages of respect, tolerance, and inclusion benefit all our students. By encouraging dialogue and providing supportive resources, these groups can help make schools safe and affirming environments for everyone.

But in spite of the positive effect these groups can have in schools, some such groups have been unlawfully excluded from school grounds, prevented from forming, or denied access to school resources. These same barriers have sometimes been used to target religious and other student groups, leading Congress to pass the Equal Access Act.

In 1984, Congress passed and President Ronald Reagan signed into law the Equal Access Act, requiring public secondary schools to provide equal access for extracurricular clubs. Rooted in principles of equal treatment and freedom of expression, the Act protects student-initiated groups of all types. As one of my predecessors, Secretary Richard W. Riley, pointed out in guidance concerning the Equal Access Act and religious clubs more than a decade ago, we “protect our own freedoms by respecting the freedom of others who differ from us.”4 By allowing students to discuss difficult issues openly and honestly, in a civil manner, our schools become forums for combating ignorance, bigotry, hatred, and discrimination.

The Act requires public secondary schools to treat all student-initiated groups equally, regardless of the religious, political, philosophical, or other subject matters discussed at their meetings. Its protections apply to groups that address issues relating to LGBT students and matters involving sexual orientation and gender identity, just as they apply to religious and other student groups.

Today, the U.S. Department of Education’s General Counsel, Charles P. Rose, is issuing a set of legal guidelines affirming the principles that prevent unlawful discrimination against any student-initiated groups. We intend for these guidelines to provide schools with the information and resources they need to help ensure that all students, including LGBT and gender nonconforming students, have a safe place to learn, meet, share experiences, and discuss matters that are important to them.

Although specific implementation of the Equal Access Act depends upon contextual circumstances, these guidelines reflect basic obligations imposed on public school officials by the Act and the First Amendment to the U.S. Constitution. The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

I encourage every school district to make sure that its administrators, faculty members, staff, students, and parents are familiar with these principles in order to protect the rights of all students — regardless of religion, political or philosophical views, sexual orientation, or gender identity. I also urge school districts to use the guidelines to develop or improve district policies. In doing so, school officials may find it helpful to explain to the school community that the Equal Access Act requires public schools to afford equal treatment to all noncurricular student organizations, including GSAs and other groups that focus on issues related to LGBT students, sexual orientation, or gender identity. Officials need not endorse any particular student organization, but federal law requires that they afford all student groups the same opportunities to form, to convene on school grounds, and to have access to the same resources available to other student groups.

The process of revising or developing an equal-access policy offers an opportunity for school officials to engage their community in an open dialogue on the equal treatment of all noncurricular student organizations. It is important to remember, therefore, that the Equal Access Act’s requirements are a bare legal minimum. I invite and encourage you to go beyond what the law requires in order to increase students’ sense of belonging in the school and to help students, teachers, and parents recognize the core values behind our principles of free speech. As noted in our October 2010 Dear Colleague Letter and December 2010 guidance regarding anti-bullying policies, I applaud such policies as positive steps toward ensuring equal access to education for all students.

Thank you for your work on behalf of our nation’s children.

Sincerely,

/s/

Arne Duncan



1Dinkes, R., Kemp, J., and Baum, K. (2010). Indicators of School Crime and Safety: 2010. (NCES 2010-012/NCJ 228478). 42 National Center for Education Statistics: Washington, DC.

2Kosciw, J. G., Greytak, E. A., Diaz, E. M., and Bartkiewicz, M. J. (2010). The 2009 National School Climate Survey: The experiences of lesbian, gay, bisexual and transgender youth in our nation’s schools, 26, New York: GLSEN.

3GLSEN, at 46-8.

4U.S. Department of Education, “Secretary’s Guidelines on Religious Expression in Public Schools,” August 1995, http://www2.ed.gov/Speeches/08-1995/religion.html.

Federal judge says gay-tolerant club can meet at school

A club that aims to promote tolerance of homosexuals can meet at Okeechobee High School [Florida], at least for as long as it takes to settle a lawsuit over the club, a judge has ruled.

In an order issued Friday, U.S. District Judge K. Michael Moore said the school must grant the same privileges to the Gay-Straight Alliance of Okeechobee High School that it grants other clubs, as mandated by the federal Equal Access Act.

Is Utah out to suppress high school clubs? Gay-straight alliances in the crosshairs.

The New York Times reports:

Most people would probably not consider the average high school chess club to be a hotbed of disorder or immorality. But a club is a club, and Utah has decided that student groups need some stern policing and regulation.

Next month, a 17-page law will take effect governing just about every nuance of public school extracurricular clubs, from kindergarten jump rope to high school drama. How groups can form, what they can discuss in their meetings, who can join, and what a principal must do if rules are violated are addressed.

But the school clubs law, signed last week by Gov. Jon Huntsman Jr., was not really intended to rein in the rowdies down at the audio-visual club, some lawmakers said. The real target was homosexuality.

“This is all about gay-straight alliance clubs, and anybody who tells you different is lying,” said State Senator Scott D. McCoy, Democrat from Salt Lake City, who voted against the law.
State Senator D. Chris Buttars, a Republican from the Salt Lake City suburbs and the law’s co-sponsor, said in an interview that he saw the need for the measure after parents from a high school in Provo, Utah, protested the formation of a gay-straight club in 2005.

But Mr. Buttars said his bill was intended to bring uniformity to the rules. The centerpiece, he said, is a clause giving school administrators the authority to ensure that clubs do not violate “the boundaries of socially appropriate behavior.”

“If a gay-straight club wants to meet together, as they say they do, just for friendship, I have no problem with that,” Mr. Buttars said. “But I think school districts should have the authority to do whatever they need to do protect their schools — the law gives them authority to make decisions to protect the physical, emotional, psychological or moral well being of students.”

The State Board of Education opposed the bill and asked Governor Huntsman to veto it. Carol Lear, a lawyer for the board, said in an interview that she feared that the complicated rules and the subjective decisions that might be made in defining the term “socially appropriate” could entangle principals in red tape and litigation.

More from the Salt Lake Tribune.