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Volume 17, Number 5
September/October 2001

Ignoring Sexual Minority Students Can Have Legal Consequences


Only five states—California, Connecticut, Massachusetts, Vermont, and Wisconsin—currently have laws specifically protecting public school students from harassment and/or discrimination based on sexual orientation. Only one, California, also protects students based on gender identity. But a 1996 lawsuit demonstrated that existing federal laws are often enough to make school officials liable if they fail to deal effectively with harassment against students who are lesbian, gay, bisexual, or transgender (LGBT).

Jamie Nabozny successfully sued school administrators in Ashland, WI, for failing to protect him against anti-gay abuse in middle and high school, dramatically changed the landscape with regard to the rights of sexual minority students under the law. Working with the Lambda Legal Defense and Education Fund, an organization that fights anti-gay discrimination, Nabozny received a settlement of just under $1 million. The principal of Nabozny's middle school, as well as the principal and vice principal of his high school, were held personally liable in the case.

Nabozny's abuse began in the usual way—with anti-gay epithets in the early middle school years. As they often do, the verbal attacks escalated to physical assault. In high school, Nabozny was mock-raped by some fellow students, urinated on in a school bathroom, and beaten to the point where he required hospitalization for internal bleeding. In each case, Nabozny and his parents say school officials failed to punish the perpetrators.

David Buckel, one of the Lambda attorneys who argued Nabozny's case, says the Equal Protection Clause of the U.S. Constitution makes clear that the school officials' failure to support Nabozny was illegal. "Under this clause, public schools cannot pick and choose which students will be safe and which students will not be safe," writes Buckel in an article published last year in Education and Urban Society. Buckel says this constitutional provision was instrumental to the success of Lambda's argument: "We asserted that Jamie's school made some students safe but treated Jamie differently on two different and independent grounds: because he is male and because he is gay."

The Lambda attorneys made their claim partly on the basis of Wisconsin anti-discrimination laws, but even in states without such protections, school officials can be held liable if they treat harassment complaints differently based on the sex of the complainant. "We often find that male students are treated differently on their complaints of harassment because school administrators believe that boys should fight back physically rather than request help from administrators," Buckel notes.

Buckel adds that in addition to the Equal Protection Clause, numerous other laws can make school personnel vulnerable to charges of discrimination. Some states and municipalities have general anti-discrimination laws that may apply in some cases to LGBT students. The federal statute Title IX, which prohibits discrimination on the basis of sex in schools, can be applied where students are targeted—or their complaints are ignored—because they are perceived as not conforming to gender norms. Moreover, anti-LGBT behavior can be construed as sexual harassment where a perpetrator's actions involve sexual gestures or similar conduct, and school personnel can be held liable if they fail to respond under these circumstances.

Students have also used existing federal laws successfully to win the right to form gay-straight alliances (GSAs). When the board of the Salt Lake City School District tried to block the formation of a GSA at the city's East High School, students there argued that they had the same right to assemble on school grounds as other student clubs under the federal Equal Access Act. In a highly publicized decision, the school board voted in 1996 to ban all noncurricular clubs rather than allow the gay-straight alliance to meet. Eventually, the board relented and lawsuits brought by several civil-rights groups were dropped.