The Speech Divide: GLBT Students Struggle for Visibility and Safety

Vol. 35 No. 3

By

Sarah Warbelow, a civil rights attorney, is the Justice for All Fellow at the Human Rights Campaign and an affiliated professor at the Georgetown Public Policy Institute and George Washington University.

Gay, lesbian, bisexual, and transgender (GLBT) persons, as a minority group comprising approximately 5 percent of the secondary student population, face significant challenges at school. As GLBT students seek to be recognized as a vital part of the academic community, their freedom of speech can be threatened by schools’ efforts to minimize their visibility. They are also subject to harassment and intolerance, and often lack protection from speech and behaviors that render the school environment hostile.


Harassment

Despite growing acceptance for the GLBT community and a proliferation of gay-straight alliances (GSAs) in high schools, harassment continues to be a major concern for GLBT students in secondary education. A recent study conducted by Harris Interactive for the Gay, Lesbian and Straight Education Network (GLSEN) found “9 out of 10 secondary school principals report that their students have been harassed because of how masculine or feminine they are or because they are or are perceived to be gay, lesbian or bisexual.” GLSEN, The Principal’s Perspective: School Safety, Bullying and Harrassment (May 2008) . Unfortunately, students’ legal right to have a school experience free from harassment may turn on whether the harassment was sexual in nature or if the state or local government has a policy prohibiting discrimination on the basis of sexual orientation or gender identity .

Title IX of the Education Amendments of 1972, 20 U.S.C. §§ 1681-1688 prohibits discrimination in educational programs on the basis of sex, but in most instances Title IX has been interpreted as not applying to sexual orientation. However, in Oncale v. Sundowner Offshore Services, Inc ., 523 U.S. 75 (1998), the U.S. Supreme Court found same sex-sexual harassment to be illegal under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Because Title VII sexual harassment cases are generally interpreted to apply to Title IX cases, the Department of Education Office of Civil Rights explicitly stated in their guidance that same-sex sexual harassment is prohibited under Title IX. However, if the harassment is not sexual in nature, Title IX does not apply.

If a school district ignores pervasive derogatory comments directed toward female students—such as “girls are dumb in math”—it may be liable under Title IX. However, school officials may routinely ignore epithets such as “fag” without fear of liability. Almost all of the cases finding that GLBT students have a right to be free from nonsexual forms of harassment are based on state or local nondiscrimination statutes that include sexual orientation. The closely watched case of L.W. v. Toms River Regional School Board of Education, 189 N.J. 381 (2007), in which a student was subjected almost daily to sexual orientation epithets, was decided in the student’s favor by the New Jersey Supreme Court because that state has a statute that allows the court to recognize the harassment on perceived sexual orientation and to hold the school to a stricter standard than Title IX.

Gay-straight Alliances

GSAs have rapidly proliferated across the country since the first was established in 1988. Today, more than 3,000 middle schools, high schools, and colleges have GSAs, which are clubs that work to provide a safe environment for GLBT students with support from their heterosexual allies. Students have a limited right to form GSAs at public schools and have them recognized by the administration as part of their First Amendment right of freedom of speech.

Under the federal Equal Access Act, 52 U.S.C. § 4071, as interpreted by the courts, schools must allow students to form GSAs whenever they permit other noncurricular groups to meet during noninstructional hours. A club is classified as curricular as long as it is sufficiently related to official school curriculum. In practice, this means a club may be determined curricular at one school but noncurricular at another. In East High Gay/Straight Alliance v. Board of Education of Salt Lake City School District, 81 F. Supp. 2d 1166 (D. Utah 1999), the court concluded that an Odyssey of the Mind Club was curricular because the staff advisor taught the same thinking skills in his classroom, but the court left open the possibility of a different outcome in other schools. Furthermore, although school boards may choose to permit only curricular clubs to form in order to minimize controversial subjects, they may not do so with discriminatory intent.


Freedom of Speech

Schools may limit speech and expression and that creates a dangerous situation. Problems often arise not because of actual speech but because administrators lack a true understanding of a GSA’s purpose. In East High, students wanted to form what they referred to as a Rainbow Club that would explore GLBT history, role models, and current events. The application to form the group was denied on the ground that the “proposed subject matter is ‘sexual orientation,’ a topic ‘that is not a curricular subject taught at East High School.’” Id . at 1175. In general, clubs relating to sports, games, politics, advocacy, and religion are considered noncurricular.

Freedom of speech has created conflicts in schools between some religious students and GLBT students. Both groups want to be able to express their own viewpoints even if others consider them harassment. Numerous cases have established a limited right of free speech for elementary and secondary students, including the recent Supreme Court decision in Morse v. Frederick, 127 S. Ct. 2618 (2007) (more famously known as Bong Hits 4 Jesus), in which the school was found not to have violated Frederick’s free speech rights when he was expelled for displaying a banner at an off-campus event that was not sponsored by the school.

A large number of cases revolve around the right to wear T-shirts with political statements on them that may be viewed as intolerant, but the circuit courts have reached different conclusions based on similar facts. The Ninth Circuit, for instance, upheld a restriction on a shirt bearing the slogan “Homosexuality Is Shameful,” Harper v. Poway Unified School District, 445 F.3d 1166 (9th Cir. 2006), while the Seventh Circuit defended the right to wear a shirt that said “Be Happy, Not Gay.” Nuxoll v. Indian Prairie School District No. 204, 523 F.3d 688 (7th Cir. 2008).


Conclusion

Changing interpretations of GLBT status within Fourteenth Amendment law offer hope for improved student experiences. But GLBT students are entitled to the same protections students receive under Title IX on the basis of sex. Congress must revise Title IX to incorporate sexual orientation or create a new statute mirroring its protections in order to provide an equitable educational experience for all students.

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