First, a resolution (eventually) to a previously mentioned situation in Jacksonville, Arkansas, Junior High:
American Civil Liberties Union : Arkansas School District Agrees to Guarantee Gay Student's Right to be Out at School: In a court conference held this afternoon, the Pulaski County Special School District agreed with the American Civil Liberties Union and a federal judge that students have a Constitutional right to be openly gay in school.
"We're very pleased that the court recognized right away that a school has no place telling gay students that they can't be out of the closet at school," said Leslie Cooper, a staff attorney for the ACLU Lesbian and Gay Rights Project. In talks with ACLU attorneys representing 14-year-old Thomas McLaughlin and counsel for the school district, U.S. District Judge G. Thomas Eisele said that under the First Amendment schools cannot silence or restrict students' speech unless it is disruptive. The school's attorney agreed when Judge Eisele asked if the school would adhere to the conditions the ACLU had asked for in its motion: that the school not restrict McLaughlin's speech during non-instructional time with regard to his sexual orientation or punishments he has received from school officials. Judge Eisele went on to tell attorneys that he would expedite the trial in McLaughlin's lawsuit, which the ACLU filed Tuesday.
That is, frankly, a better resolution than anyone might have expected. I suspect that the school district looked at what they'd done, looked at the massive liability they had hanging out there because of teachers proselytizing at a student and forcing him to take it, and their lawyers said, "You guys are screwed, you know. Any jury ruling in accordance with the law is going to hang you out to dry, whether or not they like this kid."
On the other hand, it might have taken a few rounds of trials to get through to that result. Arkansas only lost its sodomy laws in 2002 ... because they were found unconstitutional by a judge from the selfsame country in which the current unpleasantness is taking place, ironically enough. One suspects the end of that road would have been a thoroughly pissy but unanimous opinion coming out of both the Arkansas Supreme Court and the Court of Appeals, slamming the school district.
Meanwhile, back at the ranchlands:
Court says school personnel liable in anti-gay taunt case (SFgate.com, Wednesday, April 9, 2003): In a ruling that could lead to new protections for gay students, a federal appeals court ordered a trial Tuesday in a suit that accuses Morgan Hill school officials of brushing off years of complaints of anti-gay taunts and abuse. The U.S. Circuit Court of Appeals in San Francisco said school administrators can be held personally responsible under federal law for failing to protect students from harassment based on sexual orientation.
The lawsuit was filed by six former students who said they were either gay or perceived as being gay. Although no federal statute expressly protects gays or lesbians, the three-judge panel pointed out that a 1990 appellate ruling established that "state employees who treat individuals differently on the basis of their sexual orientation violate the constitutional guarantee of equal protection." A prominent gay-rights lawyer said Tuesday's ruling, binding in nine Western states, was the first of its kind in the nation.
It will be interesting to see the flight of this case. On the one hand, the school district could appeal for a full en banc hearing of the appeals court -- that is, they could ask to be heard by the full court, and not just a three-judge panel -- and thence to the Supreme Court if they didn't like the results. On the other, they rather make themselves out to be bigoted the more they pursue the case, don't they?
That said ... if the school district didn't have a policy in place, they would, in all likelihood, not be liable. The real problem is that they had such a policy and did not enforce it. (I am a mite puzzled as to how that constitutes a failure of equal protection, as far as the Constitution is concerned, however.)
The federal government has, startlingly enough, taken a position on this issue, although it's not precisely helpful:
... Although Title IX does not prohibit discrimination on the basis of sexual orientation, sexual harassment directed at gay or lesbian students that is sufficiently serious to limit or deny a student’s ability to participate in or benefit from the school’s program constitutes sexual harassment prohibited by Title IX under the circumstances described in this guidance. For example, if a male student or a group of male students target a gay student for physical sexual advances, serious enough to deny or limit the victim’s ability to participate in or benefit from the school’s program, the school would need to respond promptly and effectively, as described in this guidance, just as it would if the victim were heterosexual. On the other hand, if students heckle another student with comments based on the student’s sexual orientation (e.g., “gay students are not welcome at this table in the cafeteria”), but their actions do not involve conduct of a sexual nature, their actions would not be sexual harassment covered by Title IX.
So in other words, grabbing someone's crotch would be against the rules of Title IX, but calling them faggot or lesbo isn't covered. And hitting them with bricks isn't covered. And shoving them to the floor because the bathroom "is where they belong" isn't covered.
Kids in the crossfire, by Mara Leveritt (Arkansas Times, April 11, 2003): But, aside from his decision to confront the abuse, Thomas McLaughlin is not unique. For many GLBT kids, walking into school means confronting harassment in the halls, accompanied by the certainty that the adults in charge will do nothing to stop it. Mainly, the assaults are verbal. As Thomas puts it, "just mostly calling names, like 'queer,' 'fag,' stuff like that." His approach was to "just ignore them." Occasionally, the attacks were worse. Once, he says, "This one guy spit on me and one of my friends. We reported it to the office. The assistant principal was supposed to suspend him [the spitter] for five days. He only suspended him for one."
..... Joseph Powell, then a student at Sylvan Hills High School, didn't see the brick coming. His attacker struck from behind, sending Powell, now 23, to the hospital with a concussion.
The attack at Hall High School was different. Jeana Huie, now 18 and a dropout, saw the girls coming. She recalls them slowly surrounding her, shoving, taunting, calling her "dyke" and "bitch." They pushed her into the boys' restroom and knocked her to the floor. "This is where you belong," they said.
Powell and Huie are among the growing number of high school students, in Arkansas and nationally, who are daring to identify themselves as other than heterosexual. In doing so, they find themselves - often alone and undefended - on a cultural battlefield. [...] Though Joseph Powell did not instigate the attack that sent him to the hospital, he - though not his attacker - was sent to another school. Huie, in a decision she now regrets, dropped out of school altogether rather than brave its halls again.
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