Gender and sexually variant students the legal responsibilities of educators
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Gender and Sexually Variant Students The Legal Responsibilities of Educators. This is a guide and over view and legal advice from a competent lawyer is strongly advised Jennifer Ellis, Esquire Maxine Ellis Center for Justice and Equality 717-856-6370 [email protected]

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Gender and sexually variant students the legal responsibilities of educators l.jpg

Gender and Sexually Variant StudentsThe Legal Responsibilities of Educators

This is a guide and over view and legal advice from a competent lawyer is strongly advised

Jennifer Ellis, Esquire

Maxine Ellis Center for Justice and Equality

717-856-6370

[email protected]


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Who Am I & Why Am I Here?

  • Regular employment – Attorney for the Pennsylvania Bar Institute

    • Nonprofit continuing legal education

    • Teach and organize programs


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What Does the Center Do?

  • Focus on education

    • Teach different people and groups about the rights and needs of GLTB people.


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What Does the Center Do?

  • Lawsuits as a last resort

    • When all other efforts fail or the organization or school refuses to negotiate


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Why Avoid Lawsuits?

You need the money to educate your kids.


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Why Sue?

All kids have a right to be safe at school.



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What If?

  • Think about the following scenarios

  • What would you do if the following happened?

  • Do you know what the appropriate response is legally?


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What If?

What if a male student came to school in a skirt and blouse?


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What If?

What if a female student came to school in overalls and a flannel shirt?


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Answer

  • This is a dress code issue

  • This is an equal protection clause issue

  • You must treat all of your students the same when it comes to clothing.


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Answer

  • You may control dress to the extent that:

  • The clothing causes a "material and substantial disruption of the educational process"

  • Someone else’s dress harms the rights of others.


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Answer

  • You may not control dress because other students or teachers might be offended or upset by a student's clothing

  • Such clothing does not constitute a sufficient disruption to justify suppression or punishment.


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Suggested Response

  • Recently I was told that a school administrator had the following response when a young man wore a skirt to school.

    • Our dress code requires skirts to be no less than so many inches below the knee. Please wear a longer skirt next time. The boy did.


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What If?

What if a female student brought another female to the prom? A male student another male?


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Answer

  • The prom question is a well-settled one.

  • You must allow students to bring same-sex partners to dances.


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What If?

What if a student questioned curriculum around same sex sexuality in health class?


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Answer

  • You have the right to control your curriculum.

  • However, a student also has the right to discuss homosexuality, the fact that he or she is gay, the fact that his parents are gay, and so on.


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Answer

  • A teacher who wants to teach about gay and lesbian issues should check the curricular policies.

  • A teacher may mention the word gay or lesbian in an accurate matter, for the most part.

  • If you plan on teaching gay and lesbian issues, check with the school administrator if you are uncertain as to your school’s policies.


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What If?

What if a student who has two mothers asks to have his mothers identified as his parents on all school records?


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Answer

  • If both mothers have a legal relationship with the child you must include both mothers on the records.

  • In 2002 the Supreme Court of Pennsylvania has held that same-sex, second parent adoption is legal.


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What If?

What if students ask for support and full privileges to form a Gay-Straight Transgender Alliance club in your school?


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Answer

  • The Equal Access Act of 1984 applies here.

  • If you have any club that meets the following requirements:


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Answer

  • Noncurriculum related

  • Student Group

  • Meets at School

    You must allow GSTAs to meet at your school too.


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What If?

What if a student reported to the proper school disciplinarian that he was called “faggot” repeatedly when changing classes?


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What If?

What if a teacher uses anti-gay slurs in the classroom and a student complains?


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What If?

What if a student is attacked physically because he is perceived as being homosexual?


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What if?

What if you do not make your school safe for gay, lesbian, bisexual, transgender, questioning youth?


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Answer

All students, regardless of sexual orientation, have a legal right to a safe school.

If you are deliberately indifferent to anti-gay harassment, you will be sued and you will be found liable.


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Answer

“If a kid with a gender issue is being harassed and the school doesn’t mobilize, the institution fails” –Anthony Scariano, attorney to 200 Illinois School Districts.


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Answer

  • Title IX applies to all schools.

  • It prohibits harassing conduct of a sexual nature

  • This includes targeting a lesbian student for physical sexual advances

  • This includes any conduct that creates a sexually hostile environment.


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Answer

  • Title IX does not apply to simple heckling.

  • However, the Constitution provides a right to equal protection under the law.

  • Pennsylvania has an ethics code which requires administrators to take sexual-orientation discrimination seriously.


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Answer

  • In Pennsylvania the Ethnic Intimidation Act includes GLTB individuals.

  • If a hate crime occurs in your school you have a duty to report it to the police.


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Legal Support

  • Title IX of the Education Amendments of 1972, 20 U.S.C. § 1681; Davis v. Monroe County Bd. of Educ., 526 U.S. 629 (1999) (student-on-student sexual harassment); Gebser v. Lago Vista Indep. Sch. Dist., 524 U.S. 274 (1998) (teacher-on-student sexual harassment).

  • Nabozny v. Podlesky, 92 F.2d 446 (7th Cir. 1996) (student-on-student sexual orientation harassment.)


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Suggested Responses

  • Create a policy that makes it very clear that anti-gay harassment will not be tolerated by staff or students.


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Anti-Harassment Policy

  • Set forth the school’s commitment to protect students from harassment and violence and to maintain a nondiscriminatory environment.


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Anti-Harassment Policy

  • Identify the types of harassment prohibited. Give examples.

  • Require staff to report harassment when they learn about it.


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Anti-Harassment Policy

  • Explain how to report harassment and to whom to report it.

  • Describe the various steps the school will take to respond to reported incidents.


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Anti-Harassment Policy

  • Include formal complaint procedures.

  • Prohibit retaliation against persons who report harassment or participate in related proceedings.


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Anti-Harassment Policy

  • Ensure that all members of the school community are aware of their rights and responsibilities.


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Anti-Harassment Policy

  • Make sure your student codes of conduct and personnel policies address these issues.

  • These suggestions and the following advice are taken from the Department of Education Office for Civil Rights.


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If Harassment Occurs

  • Investigate immediately

    • Determine the scope and severity

    • Identify the perpetrators

    • Evaluate the harm to victims

    • Determine the appropriate corrective action


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If Harassment Occurs

  • Immediately refer the incidents to law enforcement authorities when the acts are violent or criminal.

  • If the incidents are well known or of public concern, school officials should give a forthright announcement and promise results.


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If Harassment Occurs

  • Punish the student harassers as is appropriate.

  • Discipline any employee harassers as is appropriate.

  • Engage in ongoing remedial action to prevent reoccurrence.

    • Increase adult supervision

    • Monitor victim’s security

  • Provide emotional and psychological support for the victim as needed.


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If Harassment Occurs

  • When appropriate, use informal procedures for resolution.

    • Peer mediation or counseling but only if

      • Voluntarily selected by all participants.

      • Victim has full knowledge of rights for the formal process

      • School determines that peer involvement is appropriate.


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If Harassment Occurs

  • Teach students who engage in harassing conduct more acceptable behavior

    • Especially if the students are very young

    • Or the Conduct was not intended to be harmful.


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A Formal Complaint Process

  • A formal complaint process is necessary to ensure students and parents have a means of obtaining corrective action.

  • Federal laws require due process.


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A Formal Complaint Process Should Include:

  • Notice to all concerned parties.

  • Opportunity for a prompt, thorough and impartial investigation, including opportunity to present witnesses and other evidence.

  • Confidentiality to the extent possible

  • Notification to complainant of outcome (while respecting privacy laws)

  • Effective remedies when discrimination is found.


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Involving the Police

  • If a crime happens, notify the police.

  • This includes hate crimes on school property or in connection with off-site school activities.

  • Consider developing guidelines for involvement of police with less serious instances of harassment if these could lead to retribution.

  • Develop a line of communication with law enforcement.

  • If you have on-site security, involve them.


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Involving the Police

  • If a crime does occur preserve evidence.

    • Balance this need however with the need to minimize student exposure to harmful messages.

    • If harassing graffiti occurs preserve it when

      • Repetitive or persistent

      • Located in a place of high visibility

      • Targeted

      • Identifies the perpetrator

      • Contains incitement to violence, threats or intimindations and/or targets a particular group.


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Involving the Police

  • Use methods to reduce exposure to the offense which do not destroy the physical evidence.

    • Cover it or conceal it.

    • Photograph all instances of hate-motivated or harassing graffiti.

    • If it is a crime, preserve it until the police approve removal.


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Have a Crisis Intervention Plan

  • Include methods of:

    • Rumor control

    • Media contacts

    • Close and continuing communication with students, parents, community and law enforcement liaison

    • See Early Warning, Timely Response: A Guide to Safe Schools: http://www.ed.gov/offices/OSERS/OSEP/earlywrn.html


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Remember

  • It is not the victim’s job to end the harassment. It is yours.

  • Do not victimize the victim in your efforts to solve the problem.


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Reality Check

What has happened to schools that have failed to appreciate the rights of their students when it comes to GLTB issues?


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Some Cases

  • Gay students have the right to attend the prom with a partner of their choice. Fricke v. Lynch in his official capacity as Principal of Cumberland High School.


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The Prom

  • In this case a Rhode Island school was sued because it would not allow two boys to attend.

  • This 1980 case found that school had to allow the boys to attend together and also, had to provide them with security if it seemed necessary.

  • In addition Title IX forbid discriminating on the basis of sex in its invitations to the prom.


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The Prom

  • More recent cases have continued to uphold the right of same-sex couples to attend the prom.

  • Attempts to prevent same-sex couples from attending the prom together will most likely result in a lawsuit.

  • Precedent suggests, you will lose.


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Gay-Straight Alliances

  • If you allow non-curricular groups to meet on campus and do not allow gay-straight alliances, you will be sued.

  • On February 3rd of this year the ACLU reached a settlement with a school that refused a GSA.


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Gay-Straight Alliances

  • The settlement required the school to:

    • Treat the gay-straight transgender alliance no differently from other clubs

    • Conduct an annual training session on all types of harassment (including a special component on anti-gay harassment)

    • Revise all student activities policies to treat members of all clubs equally. 


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Gay-Straight Alliances

  • Fortunately the students didn’t ask for any money.

  • Unfortunately: "The Boyd County Public Schools wasted over a year’s time and a lot of taxpayer money to try to stop these students from having their club, when a federal judge had already made it clear that the district was breaking the law by trying to silence students who wanted nothing more than a place to talk about how to stop anti-gay harassment and discrimination at school and in the community"


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Gay-Straight Alliances

  • In 2000 students in Wisconsin won the right, with the assistance of the ACLU, to have a gay-straight alliance.

  • Several schools in Pennsylvania now have GSAs. Most recently in Cedar Crest. One of the reasons provided by the superintendent of schools was legally, he had no choice. The other was that it was the right thing to do.


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Gay-Straight Alliances

  • If you refuse to allow a gay-straight alliance to have the same rights as other student run groups at your school. You will end up on the losing side of a lawsuit.


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Students Have the Right to be Out

  • In 2003 a school in Arkansas disciplined a student for stating that he was gay.

  • The ACLU became involved.

  • In a conference with the judge, 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. 


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  • This decision opens up the gate for a lawsuit against the school.

  • The ACLU contends that school officials violated the boy’s rights to free speech, equal protection, and privacy, and that they violated the establishment clause of the First Amendment by preaching to him and forcing him read the Bible as punishment.


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Harassment disciplined a student for discussing the fact that his mother was gay.

  • There have been numerous cases on anti-gay harassment over the past few years.

  • These cases have resulted in the following lessons:


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Harassment disciplined a student for discussing the fact that his mother was gay.

  • School districts will be held liable for failing to protect students from harassment based on sexual orientation or gender identity.

  • Many states offer no clear directive to schools so schools fail to act. This leaves them open to liability.


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Harassment disciplined a student for discussing the fact that his mother was gay.

  • In all of the cases brought to date, the students have either won in court or a settlement has been reached between the school district and the student(s).

  • These cases are expensive.

    • School districts have paid anywhere from $40,000 to $1,100,000 to the plaintiff(s) in settlements.

    • This does not include attorney’s fees.

    • Many of these cases were brought in states that do not specifically forbid discrimination based upon sexual orientation.


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Flores v. Morgan Hill Unified School District (N.D. Cal.) disciplined a student for discussing the fact that his mother was gay.

  • Facts: Suit brought on behalf of students who were subjected to daily harassment and threats of physical violence on the basis of their real or perceived orientation or gender.

  • Legal Basis: Equal Protection Clause, Title IX and State Laws.


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Result disciplined a student for discussing the fact that his mother was gay.

  • Settlement agreement reached

  • Mandatory staff training including retention of an agreed upon trainer.

  • Mandatory student training.

  • Alteration of policies to prevent future harm

  • See http://www.aclunc.org/students/040106-settlement.pdf


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Result disciplined a student for discussing the fact that his mother was gay.

In addition to all of the above:

1.1 million dollars.


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Henkle v. Gregory, 150 F. Supp.2d 1067 (D. Nev. 2001) disciplined a student for discussing the fact that his mother was gay.

  • Facts: Constant harassment, discrimination, intimidation based on his sex and sexual orientation, name calling, assaults, punched in face, lassoed around the neck, threatened, transferred from school to school and told to keep silent about his sexual orientation, put into adult education program


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  • Claims: disciplined a student for discussing the fact that his mother was gay.

    • Title IX, Equal Protection Clause, First Amendment, state tort claims

  • Money

    • $451,000

  • Other:

    • New harassment policy including sexual orientation

    • Training for staff

    • Training for students


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Loomis v. Visalia Unified School District (E.D. Cal.) disciplined a student for discussing the fact that his mother was gay.

  • Settled 2002

  • Facts: Verbal harassment and name calling by teachers and students, spit on in hallway, put in independent study program (thereby losing ability to attend any U.C. school), subjected to sexually suggestive touching


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  • Claims disciplined a student for discussing the fact that his mother was gay.

    • Equal Protection Clause, Due Process Clause, state law claims

  • Money

    • 130,000

  • Other


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  • Required training for students, including a mandatory 50 minute training

  • Required to integrate peer-to-peer education and counseling into existing programs

  • Required to revise anti-harassment policy to include real or perceived sexual orientation and gender

  • Required training for school staff, including a one-time 3 hour program, and 30 minute annual training


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Dahle v. Titusville (Pa.) one male and one female (although only one required for elementary schools)

  • Settled 2002

  • Facts: Severely tormented based on sexual orientation, daily verbal and physical assaults over 5-year period. Harassment was so traumatizing that student attempted suicide.

  • Money: $312,000


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Lesson Learned? one male and one female (although only one required for elementary schools)

  • Do not tolerate harassment based upon sexual orientation at your schools.

  • It will cost you a lot of money, a lot of time and a lot of public opinion problems.

  • No matter how hard you fight, if you allowed harassment to occur, you will either end up settling or end up with a verdict against your district.


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Need Help? one male and one female (although only one required for elementary schools)

  • Feel free to contact me.

  • I would much rather help you resolve a situation and save all concerned the money, time, and difficulty caused by a lawsuit.


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Need Help? one male and one female (although only one required for elementary schools)

  • Contact Common Roads in Pennsylvania

  • They will come into your school and train you, your staff, and your students.

  • www.commonroads.org


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