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The Coalition for Safer Schools of NYS, PO Box 2345, Malta, NY 12020
Email to:SARATOGANY@aol.com

"The Actual or Perceived GLBT Student Protection Project"

CSS-NYS Note:As I have mentioned on other occassions, under Title IX gay and lesbian students are NOT protected from discrimination. However, they are protected against SEXUAL HARASSMENT and SEX DISCRIMINATION. Frequently harassment of gay and lesbians students is SEXUAL in nature, by word or act. For example; "hey faggot you want to suck my c**k?" or a simulated sex act. Obviously these have a sexual connotation. See hotline for US ED - Office of Civil Rights at the end of this message followed by an attorney's comment on this.

You should note in the below text "students who are, or are perceived to be, gay or lesbian."
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US Education Department (http://www.ed.gov)
Office of Civil Rights (OCR)

Protecting Students from Harassment and Hate Crime:A Guide for Schools -
January 1999

(Obtain this free guide by calling toll free 1-800-USA-LEARN)

Excerpts:
There is an increasing awareness among school officials of the frequency and severity of harassment of students who are, or are perceived to be, gay or lesbian. Schools should consider whether there is a need to include harassment based expressly on sexual orientation in their anti-harassment programs. Harassment on the basis of sexual orientation may violate state discrimination laws or the U.S. Constitution. As described in Harassment Based on Sexual Orientation, a recent holding of the Seventh Circuit Court of Appeals, Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), allowed a lawsuit for damages under the United States Constitution against a school district where school officials allegedly failed to protect a gay student from harassment to the same extent as other students because of his sex and sexual orientation. Of course, gay and lesbian students can also be targets of sexual harassment. See Sexual Harassment of Gay and Lesbian Students for a discussion of sexual harassment of gay and lesbian students. See also Part II of this Guide, Addressing Hate Crime, for a discussion of state and federal criminal laws that may be relevant to certain kinds of bias motivated incidents.

HARASSMENT BASED ON SEXUAL ORIENTATION. Some state and local laws may prohibit discrimination on the basis of sexual orientation. Also, under certain circumstances, courts have permitted a remedy for harassment on the basis of sexual orientation under other federal legal authority. For example, a 1996 federal court of appeals case held that a gay student could recover for discrimination based on both sex and sexual orientation under the Equal Protection Clause of the United States Constitution in a case in which school district officials allegedly failed to protect the student to the same extent that other students were protected from harassment due to the student's sex and sexual orientation.33 School districts should consult appropriate state and local officials and legal counsel regarding the extent of their responsibility to address harassment of students based on sexual orientation.

Harassment and criminal conduct based on actual or perceived sexual orientation has been recognized as a significant problem in many schools. School officials should consider whether adopting specific statements or policies regarding harassment based on sexual orientation will help to protect students from violence and damaging behavior of this sort.34

SEXUAL HARASSMENT OF GAY AND LESBIAN STUDENTS. Sexual harassment directed at gay or lesbian students may constitute unlawful sexual harassment. For example, targeting a gay or lesbian student for physical, sexual advances may constitute sexual harassment. However, nonsexual harassing behavior directed at a student because of the student's sexual orientation does not constitute sexual harassment under the federal discrimination laws enforced by OCR. For example, heckling comments made to students because of their sexual orientation, such as "gay students are not welcome here," does not constitute sexual harassment under Title IX.25

State laws may explicitly bar harassment based on sexual orientation or treat it as prohibited sex discrimination. In addition, other federal, state, or local laws may apply to harassment based on sexual orientation if the behavior is criminal or violent in nature.

A district's policy may include a statement that harassing conduct of a sexual nature, which is otherwise prohibited, is not exempted based on the sex or sexual orientation of the harasser or target of harassment

Note 25 See OCR's Sexual Harassment Guidance, 62 Federal Register 12039, for a discussion of sexual harassment of gay and lesbian students.

Note 33 See Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996).

Note 34 For example, the State of Vermont prohibits harassment based on sexual orientation. The example of harassing behavior based on sexual orientation given in the Vermont Department of Education's Model Policy is "unwelcome verbal, written, or physical conduct, directed at the characteristics of a person's sexual orientation, such as negative name calling and imitating behaviors."

Civil Rights Hotline
Call the Office for Civil Rights (OCR) at 1-800-421-3481 to report any educational discrimination on the basis of race, sex, disability, etc., request information on civil rights compliance programs, procedures for filing discrimination complaints, or access to civil rights regulatory and policy documents. The local number in Washington, D.C. is 202-205-5413. TTY: 1-800-260-0471. Email:ocr@ed.gov.

One attorney's comment:
Title IX does NOT prohibit sexual orientation discrimination. It DOES prohibit sex discrimination. BUT lesbian and gay students suffer sex discrimination, often in the form of sexual harassment, often in the form of sex stereotyping. Here is the major problem for NY school attorneys, if they do not understand the above distinctions: they may believe incorrectly, as many do, that just because the targeted victim is gay, and the harassment or abuse or discriminatory conduct may involve some anti-gay sentiment, that there cannot be any sex discrimination. We will prove them otherwise in courts of law. For the sake of students, it is better to understand the distinctions, and make sure school administrators understand the distinctions, so the problems are solved without litigation, which is better for everyone.

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"The Actual or Perceived GLBT Student Protection Project"

A project of:
Coalition for Safer Schools of New York State

John Myers
Director of Operations and Programs
PO Box 2345

Malta, NY 12020
(518) 587-0176
Email:saratogany@aol.com

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