Today the Department of Education is sending out a letter to 15,000 school districts, colleges and universities nationwide providing new guidance on schools’ obligations under the Title IX Education Amendments of 1972 with respect to how those obligations apply to sex discrimination and sexual harassment directed at students who are gay, lesbian, bisexual or transgender.
In several cases over the last decade victims of anti-LGBT bullying have sued their schools over the discrimination and harassment they have suffered. The cases were the product of the intersection of two important Supreme Court cases from the late 1990’s: Davis v Monroe County Board of Education finding schools can be liable under Title IX for student on student harassment and Oncale v Sundowner Offshore Services finding sexual harassment can include harassment where the harasser and victim are of the same sex. Almost immediately, federal courts began finding some forms of discrimination and harassment of students by other students on the basis of actual or perceived sexual orientation can violate Title IX. See for example Montgomery v. Independent School District No. 709, Flores v Morgan Hill Unified School District, Theno v Tonganoxie Unified School District, Ray v Antioch Unified School District and Schroeder v Maumee Board of Education.

In 1998, before both Supreme Court cases, the Dept of Education’s Office of Civil Rights had already pursued action based on Title IX in the matter of a formal complaint against an Arkansas school filed by the parents of a student who suffered anti-LGBT bullying and harassment so severe, his parents removed him from school. As a result, the school district changed a number of their policies and was required to better train faculty and staff to address harassment and bullying in the future.

But with today’s action, the Department of Education is trying to make such policy improvements nationwide by reminding schools of their obligations under the law and stressing the potential negative consequences of ignoring it, which include loss of federal funding and liability for damages in a lawsuit. From the letter being sent out:


Title IX prohibits harassment of both male and female students regardless of the sex of the harasser-i.e., even if the harasser and target are members of the same sex. It also prohibits gender-based harassment, which may include acts of verbal, nonverbal, or physical aggression, intimidation, or hostility based on sex or sex-stereotyping. Thus, it can be sex discrimination if students are harassed either for exhibiting what is perceived as a stereotypical characteristic for their sex, or for failing to conform to stereotypical notions of masculinity and femininity. Title IX also prohibits sexual harassment and gender-based harassment of all students, regardless of the actual or perceived sexual orientation or gender identity of the harasser or target.

Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also […] be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment.

On Monday, the Department of Education announced the move and hosted a conference call with several members of the LGBT press.

Kerry Eleveld of the Advocate reports


“A lot of bullying experienced by LGBT kids is accompanied by or in the form of sexual harassment or gender-based harassment because students are perceived as not conforming to traditional gender roles,” explained the department’s assistant secretary for Civil Rights, Russlynn Ali. “We want to be sure that recipients understand that that kind of discrimination and harassment can very much be a violation of Title IX in federal civil rights laws.”

…

Institutions that receive complaints but fail to take action to protect students who are being unlawfully bullied or harassed could face legal action or financial penalties. Ali said those cases could be referred to the Department of Justice to go to court or they could result “in the withdrawal or termination or conditioning of all federal funds received from the Department of Education.”

Administration officials said the effort was a response to a rash of recent bullying episodes resulting in a series of suicides that have grabbed front-page headlines. Although DOE officials said 44 states have enacted basic anti-bullying laws, only 14 have laws protecting students on the basis of either their sexual orientation and gender identity, with another three protecting sexual orientation only according to the Human Rights Campaign.

Asst Secretary Ali stressed the importance and timing of the measure. In remarks reported by Dana Rudolph of Keen News Service, Ali said, “If students don’t feel safe in school, they simply cannot learn.”

Rudolph also noted “The U.S. Justice Department also intervened in January in the case of a New York teen who was bullied and physically hurt for being effeminate. Justice Department lawyers argued that the federal law against gender-based discrimination also applied to gender expression. In an out-of-court settlement, the school district agreed to pay the boy ,000, legal fees, and the cost of therapy.”

Asst Deputy Secretary for Safe and Drug-Free Schools, Kevin Jennings, said that resources for schools, students and parents would be available at the web site bullyinginfo.org. Twenty years ago, Jennings, a former educator, founded the Gay, Lesbian and Straight Education Network, a group dedicated to addressing homophobia, discrimination and bullying in schools and a key resource for many student lead Gay Straight Alliances (GSAs) around the country that promote tolerance in schools. According to Eleveld, Jennings said the administration is trying to take a proactive role in protecting LGBTQ youth, especially in light of recent events:

“In this administration, we plan to apply the letter of the law to fullest extent of the law in order to extend the greatest level of protections humanly possible to LGBT students,” Jennings said.

There are currently two bills pending in Congress that are relevant to the topic of bullying of LGBTQ youth: the Safe Schools Improvement Act (SSIA) and the Student Non-Discrimination Act (SNDA) which is sponsored by openly gay Colorado U.S. Rep. Jared Polis. When asked by Chris Geidner of Metro Weekly whether the administration supports the bills, Asst Sec Ali responded, “We certainly support the goals of both Polis’s bill and the bill on safe and healthy schools,” but declined to give either an endorsement. “Today, though, is about using the tools at our disposal now.”

This is precisely the kind of move on LGBT issues the Administration has needed to make for a long time. Just two months ago, I said as much in a diary on Daily Kos on the administration’s lack of coherent messaging compounding a lack of sufficient action on the issues. Hopefully this won’t be the only “proactive” move the administration intends to make on LGBT issues. Several people on twitter late yesterday tweeted that a meeting would take place today between top White House officials and gay rights groups (used in plural, so hopefully that means more than just HRC is invited). Just yesterday, HRC President Joe Solmonese changed course and joined the growing chorus lead by GETEqual and Dan Choi calling for the President to drop the appeal of the DADT case and/or issues a stop loss order to halt DADT discharges. See indiemcemopants’ diary for more info on that “shocking” turn of events. Could we be in store for a new aggressive move to insure the authorization of a potential repeal of DADT in passed in Congress and some sort of plan B if attempts to pass the legislation in the National Defense Authorization Act fail? Stay tuned.
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