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.

Is Anti-Gay Bullying a Civil Rights Violation?

This from guest blogger Christina A. Samuels at Politics K-12:

Anti-Gay Bullying May Violate Civil Rights, Ed. Dept. Warns

Certain types of harassment rooted in sex-role stereotypes or religious differences may be a federal civil rights violation, even though members of those groups are not specifically protected in federal law, according to new guidance released [recently] by the U.S. Department of Education's office of civil rights.

Title VI of the Civil Rights Act already prohibits discrimination on the basis of race, color, or national origin; Title IX prohibits discrimination on the basis of sex; and Section 504 of the Rehabilitation Act of 1973, as well as the Americans with Disabilities Act, prohibit discrimination based on disability status. Many local districts and schools have anti-bullying and harassment policies that go beyond those protected groups, said Russlyn H. Ali, the department's assistant secretary for civil rights.

But even when local agencies do not have such policies, federal law imposes obligations on schools, she said....

Gay NY Teen's Harassment Suit Gets Federal Notice

This from ABC News:

Gay teenager's harassment lawsuit against NY

school draws interest of Justice Department

The bullying by classmates and taunts of "homo" only got worse after Jacob began dyeing his hair and wearing eyeliner in eighth grade. One student scrawled "I hope you die" on his shoe, he said; another drew a pocket knife on him.

Jacob's grades dropped, and he missed school from fear. His father tried repeatedly to get school officials in their working-class village in upstate New York to help protect his son from harassment. The response by the Mohawk Central School District, according to a federal lawsuit, was to do "virtually nothing."

"Everything was bad," Jacob — who is identified as "J.L." in the lawsuit and didn't want to draw attention to his new school by having his last name used in this story — said this week. "I hyperventilated when I left the school ... and I didn't want to come back the next day, or ever."

The 15-year-old might soon get a measure of satisfaction. The lawsuit filed by Jacob and his father against the school district with the New York Civil Liberties Union could be close to settlement, according to both sides.

The negotiations come as the U.S. Department of Justice seeks to intervene in the case, citing the "important issues" it raises in enforcing federal civil rights
laws.

"There is a growing recognition across the country that schools need to take harassment based on gender expression and homosexuality seriously," said NYCLU attorney Corey Stoughton. "If there is a settlement in this case, that's an affirmation
of that principle."

Justice officials say it's the first time since 2000 that they have argued that Title IX, the antidiscrimination law affecting schools that receive federal funding, covers sex discrimination based on gender stereotypes — such as when a boy does not act or look stereotypically male...

Jury Award Upheld for Students in Gay-Harassment Case

This from the School Law blog:

...[A state appeals court in California] upheld [jury awards of $175,000 and $125,000 and] findings that the principal and assistant principal at Poway High School violated one student-plaintiff's federal constitutional right to equal protection under the law, and that the principal violated the other student-plaintiff's equal-protection rights.

The Oct. 10 ruling by a three-judge panel of the 4th District California Court of Appeal in Donovan v. Poway Unified School District was unanimous.

The lawsuit by the two students alleged that they kept logs of anti-gay incidents and harassment by other students over the course of two school years. They repeatedly informed school officials of the incidents, their suit said, but the administrators did not take effective action to stop it. The appeals court agreed with the trial jury that the school system's response was inadequate.

"This is not a case where the harassment was limited to a few isolated incidents of name-calling or is otherwise attributable to mere banter, teasing, shoving, pushing, and gender-specific conduct that is upsetting to students subjected to it," the court said.

The court went on to hold that the "actual notice" liability standard developed in cases under Title IX of the Education Amendments of 1972 should apply to the state anti-discrimination statute when it came to school district liability for peer sexual harassment.

The court also upheld an award of $421,000 in attorneys' fees to the plaintiffs' lawyers.

The Lambda Legal Defense and Education Fund, a gay-rights organization, represented the students and has this press release about the decision.

From Lambda:

Briefs
Donovan and Ramelli v. Poway Unified School District Supplemental Brief 04/15/08
Donovan and Ramelli v. Poway Unified School District Combined Respondents Cross Apellants Brief 11/21/06

Decisions
Donovan and Ramelli v. Poway Unified School District Decision 10/10/08