Boards consider antiharassment policies on sexual orientation
By Ellie Ashford
02/08 -- Local school boards are encouraged to take an active stance to prevent bullying and discrimination. But do they need to update their policies to specifically address sexual orientation?
That’s a question a number of school boards across the nation are grappling with -- and it’s become an emotional issue in some communities, as advocacy groups on both sides press their causes at hearings, rallies, and in the media.
In Louisville, Ky., for example, a school board proposal to expand the district’s antidiscrimination policy for employees to include sexual orientation attracted a large crowd to a board hearing and drew wide-spread coverage in the press.
Legal liability
NSBA Senior Staff Attorney Lisa Soronen suggests school boards consider the standards of the community when deciding whether to specify sexual orientation in their antiharassment policies.
According to Soronen, school districts should handle complaints by students or staff about alleged harassment based on sexual orientation, whether verbal or involving a physical attack, “just like any other harassment complaints.”
Students or a staff members who believe they have been harassed or bullied on the basis of sexual orientation can sue the district under Title IX of the Civil Rights Act, Soronen says, regardless of whether the school board has a policy that specifically prohibits harassment due to sexual orientation. In most cases, though, a board that does have a such a policy and enforce it would be in a better position to defend itself if it is sued.
School boards that are sued can face substantial legal costs, if a court finds they didn’t do enough to protect someone who alleges he or she was harassed.
In a case in 2005, for example, the Tonganoxie (Kan.) Unified School District had to pay a $440,000 settlement to a student who sued under Title IX. The student had charged that school officials failed to respond appropriately when other students spread sexual-based rumors about him and called him names like “fag” and “queer.”
The Gay, Lesbian and Straight Education Network (GLSEN) urges school boards to specifically prohibit harassment based on sexual orientation and gender identify because such policies promote a better school climate. “The bottom line is these policies work,” says Interim Executive Director Eliza Byard.
A 2005 study by GLSEN on school climate says four out of five lesbian, gay, bisexual, or transgendered youths report having been harassed at school.
“We’d like to see that changed,” Byard says. “The best way to address harassment is to have a policy that clearly enumerates these students as being protected and enforce it in a timely and even-handed manner.”
She says 10 states require schools to have antibullying policies that address sexual orientation and five of those states specifically prohibit harassment of transgendered individuals.
School boards in Iowa have had to update their antiharassment policies since a state law took effect July 1 that specifically prohibits harassment based on sexual orientation and gender identity. “If you have a complaint, having a policy puts you in a much better position,” says Iowa School Boards Association attorney Mary Gannon.
Language unnecessary
In Kansas, where a new state law calls for school boards to have uniform standards for implementing antibullying policies and training for faculty and students, the Kansas Association of School Boards advises boards not to add language specifically addressing sexual orientation.
“We try to discourage boards from adopting policies on gender discrimination. That goes way beyond what the law says,” says Donna Whiteman, KASB’s assistant executive director of legal services. “Most boards wouldn’t want to do that anyway because of the controversy.”
The new state law, however, has encouraged advocacy groups, like Hope Street Youth Development in Wichita, for example, to push for more specific language in school board policies to protect gay and lesbian students.
The Wichita school board approved a new plan to comply with the state law Dec. 19, but it but doesn’t specifically mention sexual orientation.
Tom Powell, the school district’s attorney, says such language isn’t necessary. “It’s pretty obvious that bullying is bullying,” he says. While the policy doesn’t create “an additional protective class,” he notes, it does give a couple of examples of bullying that clearly refer to sexual orientation.
“If you create additional rights that go beyond the law -- and don’t have the staff to ensure those rights are enforced -- you’re opening yourself to litigation you can’t defend yourself against,” Whiteman says.
A controversial issue
California has long had a law on the books banning harassment based on sexual orientation and gender identity, but when the legislature enacted a new law in 2007 making minor revisions, some conservative and religious organizations started a campaign to have it repealed.
If they get enough signatures on a petition to repeal the new law, known as SB 777, the issue would be on the ballot in June.
Opponents of the measure claim it legitimizes homosexuality and will give transgendered male students who view themselves as female access to women’s restrooms and locker rooms. One such group, the Capitol Resource Institute, for example, says SB 777 promotes “social indoctrination” and “seeks to normalize alternative lifestyles in California schools with special recognition for homosexuality, bisexuality, and transexuality.”
Rick Pratt, assistant executive director of the California School Boards Association, calls the conflict “a tempest in a teapot.” Both CSBA and the California Department of Education believe SB 777 “is really a technical clean-up bill,” doesn’t make any substantial changes to the previous law, and wouldn’t require all the extreme things opponents of the measure claim, he says.
According to Pratt, organizations opposing SB 777 are “deliberately misconstruing the law and using it as a convenient fund-raising and organizing issue, and they are getting a lot of attention.”
In Louisville, the Jefferson County school board agreed -- on a 4-3 vote -- to amend its personnel policies to extend antidiscrimination protections based on sexual orientation but rejected specific language on transgendered individuals. According to Superintendent Sheldon Berman, gender identity “is not well defined and applies to a wide range of behaviors.”
Board member Steve Imhoff told the Courier-Journalhe voted in support of the policy to ban harassment based on sexual orientation “because it’s the right thing to do.”
Board member Linda Duncan, who initially supported the policy change, ultimately voted against it. She changed her mind after learning about an incident in a seventh-grade classroom, where a student made a comment about lesbians, and the teacher, viewing the remark as a “teachable moment,” responded by declaring that she was a lesbian and found the remark offensive.
“That jarred me,” Duncan says. “It is not appropriate to talk about sexual preferences with a student. That opened up a can of worms.”
For Duncan, it was a question of balancing “a teacher’s right to talk about anything versus parents’ views about what they want their children to hear.” She says “we already have an antidiscrimination policy in place. We don’t need to broaden the rights of teachers to say inappropriate things to students.”
But Berman says the policy change only addresses employees’ rights and won’t affect what goes on the classroom.
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