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Creating Safe and Welcoming Schools for LGBT Students: Ethical and Legal Issues

SUSAN JACOB Department of Psychology, Central Michigan University,

Mt. Pleasant, Michigan, USA

This article addresses ethical and legal issues associated with creating safe and welcoming schools for lesbian, gay, biattrac- tional, and transgender (LGBT) youth and for students who simply do not conform to gender-role stereotypes. Ethical principles and standards that create a responsibility for educators to foster a learning environment respectful of the worth and dignity of all stu- dents are discussed first. Law related to discrimination against and harassment of LGBT students is then summarized. Special atten- tion is given to the controversy ignited by the U.S. Department of Education’s 2010 interpretation of Title IX of the Education Amendments of 1972 that requires schools receiving federal funds to take steps to prevent bullying of students on the basis of sex, including harassment based on a student’s nonconformity to gen- der role expectations. Finally, implications of ethical principles and law for school district practices regarding LGBT students are identified.

KEYWORDS lesbian, gay, bisexual, transgender, ethics, law, schools

The primary mission of public schools is to educate children, maintain order, and safeguard pupil safety (Burnside v. Byars, 1966). Unfortunately, schools can be cruel and dangerous places for students who are lesbian, gay, biat- tractional, or transgender, or who simply do not conform to gender-role stereotypes (hereafter LGBT; Kosciw, Greytak, Diaz, & Bartkiewicz, 2010).

Received May 7, 2012; accepted July 12, 2012. Address correspondence to Susan Jacob, Department of Psychology, Sloan Hall, Central

Michigan University, Mt. Pleasant, MI 48859, USA. E-mail: [email protected]

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LGBT students are more likely than their non-LGBT peers to report being threatened or injured with a weapon at school, to have their property dam- aged at school, and to stay home from school or drop out because of feeling unsafe (Massachusetts Department of Education, 2006). Despite media atten- tion to incidents of physical assault on LGBT youth and suicides triggered by student-on-student harassment, many school districts have not taken steps to reduce the bullying of youth who do not conform to gender-role expecta- tions. This article focuses on ethical principles and legal issues that together create an obligation for educators to foster a learning environment that is safe for all students and respectful of the worth and dignity of all persons.

ETHICAL PRINCIPLES

In 1975, the National Education Association (NEA) adopted its Code of Ethics of the Education Profession to promote “the highest possible degree of ethical conduct” among educators and support professionals, and to foster commu- nity respect for educators and confidence in them (NEA, 1975, Preamble). It explicitly recognizes that educators have ethical responsibilities to individual students as well as an obligation to provide leadership at the level of the classroom, school, and district, with the goal of ensuring that all students have equal opportunities to learn in an environment that is safe and healthy. In addition, school health and mental health professions have their own codes of ethics (e.g., American School Counselor Association [ASCA], 2010; National Association of School Nurses [NASN], 2010; National Association of School Psychologists [NASP], 2010; National Association of Social Workers [NASW], 2008). Many of the ethical themes that appear in the NEA’s code of ethics also are found in the codes of ethics of school nurses and school- based mental health providers (Table 1). However, because these health and mental health specialists often provide services within the context of a confidential professional relationship, manage sensitive student information, and participate in important decisions that directly impact the well-being of student-clients, the ethical standards of school health and mental health professionals are more extensive than the NEA’s code.

Seven ethical principles pertinent to LGBT students were identified based on Ross’s 1930 seminal description of the moral duties of the ethical person and contemporary scholarship in the area of applied professional ethics (e.g., Bersoff & Koeppl, 1993). Table 1 provides a description of those ethical principles and sample code statements of the NEA and four professional associations (ASCA, NASN, NASP, and NASW) whose members provide health and mental health services in elementary and secondary (K–12) schools. Although the codes cited in Table 1 date back to 1975, much consensus exists with regard to key themes, suggesting that school professionals generally have a shared set of broad ethical principles to guide

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TABLE 1 Ethical Themes and Sample Language Pertinent to LGBT Students in Codes of Ethics

Broad ethical theme Sample language from codes of ethics

Beneficence: “Do good” for individual students and/or at the level of the school system

• “The educator strives to help each student realize his or her potential as a worthy and effective member of society” (NEA, 1975, I).

• “School nurses support and promote individuals’ and families’ ability to achieve the highest quality of life as understood by each individual and family” (NASN, 2010, 1.B).

• “Beneficence, or responsible caring, means that the school psychologist acts to benefits others” (NASP, 2010, II). They “use their expertise in psychology and education to promote school, family, and community environments that are safe and healthy for children” (NASN, 2010, IV.1).

• “The primary mission of the social work profession is to enhance human wellbeing . . .” (NASW, 2008, Preamble).

Nonmaleficence: “Do no harm” and strive to correct potentially harmful situations

• “In fulfillment of the obligation to the student, the educator . . . shall make reasonable effort to protect the student from conditions harmful to learning or health and safety” (NEA, 1975, I.4).

• “Each person has the right to feel safe in school environments that school counselors help create, free from abuse, bullying, neglect, harassment or other forms of violence” (ASCA, 2010, Preamble).

• School psychologists have “an ethical obligation to take steps to protect all students from reasonably foreseeable risk of harm” (NASP, 2010, Introduction). “They assume a proactive role in identifying social injustices that affect children and schools and strive to reform systems-level patterns of injustice” (IV).

Competence: Perform professional responsibilities

• “The education profession is vested by the public with a trust and responsibility requiring the highest ideals of professional service” (NEA, 1975, II).

competently, maintain competence, be competent in meeting the needs of students/clients from diverse experiential backgrounds

• Professional school counselors “function within the boundaries of individual professional competence” (ASCA, 2010, E.1.a). They “develop competencies in how prejudice, power and various forms of oppression, such as . . . genderism, heterosexism . . . affect self, students and all stakeholders” (E.2.b). They acquire educational “experiences to improve awareness, knowledge skills and effectiveness in working with diverse populations . . . [including] sexual orientation, gender, gender identity/expression” (E.2.c).

• “When knowledge and understanding of diversity characteristics are essential to ensure competent assessment, intervention, or consultation, school psychologists have or obtain the training or supervision necessary to provide effective services, or they make appropriate referrals” (NASP, 2010, II.1.2).

• Social workers “should obtain education about and seek to understand the nature of social diversity and oppression with respect to . . . sexual orientation, gender identity or expression” (ASCA, 2010, 1.05c).

(Continued)

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TABLE 1 (Continued)

Broad ethical theme Sample language from codes of ethics

Respect for autonomy: Respect for the student/ client’s right to a voice and choice in decisions that affect them

• The educator “shall not unreasonably restrain the student from independent action in the pursuit of learning” (NEA, I.1).

• “Each person has the right to receive the information and support needed to move toward self-direction” (ASCA, 2010, Preamble).

• School nurses “actively collaborate with others to build student and family capacity for adaptation, self-management, self-advocacy, and learning” (NASN, 2010, 1).

• “In their words and actions, school psychologists demonstrate respect for the autonomy of persons and their right to self-determination” (NASP, 2010, I). They “respect the right of persons to participate in decisions affecting their own welfare” (I.1).

• “Social workers promote clients’ socially responsible self-determination” (NASW, 2008, Value: Dignity and Worth of the Person).

Respect for Privacy • “Each person has the right to privacy” (ASCA, 2010, Preamble).

• “School psychologists respect the right of persons to choose for themselves whether to disclose their private thoughts, feelings, beliefs, and behaviors” (NASP, 2010, I.2). They “respect the right of privacy of students . . . with regard to sexual orientation, gender identity, or transgender status. They do not share information about the sexual orientation, gender identity, or transgender status of a student (including minors), parent, or school employee with anyone without that individual’s permission” (I.2.6).

• “Social workers should not solicit private information from clients unless it is essential to providing services or conducting social work evaluation or research” (NASW, 2008, 1.07a).

Confidentiality • The educator “shall not disclose information about students . . . obtained in the course of professional service unless disclosure serves a compelling professional purpose or is required by law” (NEA, 1975, I.6).

• “School psychologists respect the confidentiality of information obtained during their professional work. Information is not revealed to third parties without the agreement of a minor child’s parent or legal guardian (or an adult student), except in those situations in which failure to release information would result in danger to the student or others, or where otherwise required by law” (NASP, 2010, I.2.4). They “discuss and/or release confidential information only for professional purposes and only with persons who have a legitimate need to know” (I.2.5).

(Continued)

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TABLE 1 (Continued)

Broad ethical theme Sample language from codes of ethics

• “Social workers should protect the confidentiality of all information obtained in the course of professional service except for compelling professional reasons” (NASW, 2008, 1.07c).

Justice: Equal educational opportunity, fairness, and justice at level of individual student and/or school system

• The educator “recognizes the supreme importance of . . . the guarantee of equal educational opportunity for all” (NEA, 1975, Preamble). “In fulfillment of the obligation to the student, the educator . . . shall not on the basis of . . . sexual orientation, unfairly exclude any student from participation in any program [or] deny benefits to any student” (I.6).

• Professional school counselors “create opportunities for equity in access and success in educational opportunities. . . . Each person has the right . . . to have access to a comprehensive school counseling program that advocates for and affirms all students from diverse populations including . . . sexual orientation, gender, gender identity/expression” (ASCA, 2010, Preamble).

• “In their words and actions, school psychologists promote fairness and justice. They use their expertise to cultivate school climates that are safe and welcoming to all persons regardless of actual or perceived characteristics, including . . . sexual orientation, gender identity, gender expression” (NASP, 2010, I.3). “School psychologists work to correct school practices that are unjustly discriminatory” (I.3.3).

• “Social workers pursue social change, particularly with and on behalf of vulnerable and oppressed individuals and groups of people” (Value: Social Justice). They “should not practice, condone, facilitate, or collaborate with any form of discrimination on the basis of . . . sexual orientation, gender identity or expression” (NASW, 2008, 4.02); and “should act to prevent and eliminate domination of, exploitation of, and discrimination against any person, group, or class on the basis of . . . sexual orientation, gender identity or expression” (6.04d).

Note. NEA = National Education Association, ASCA = American School Counselor Association, NASN = National Association of School Nurses, NASP = National Association of School Psychologists, and NASW = National Association of Social Workers. Only sample language from these codes of ethics is presented.

their decision-making with regard to LBGT students. It is important to rec- ognize, however, that codes of ethics provide only general and imperfect guidance; ethical conduct requires professionals to consider carefully how broad principles and code statements apply to LGBT students.

All codes reviewed include the theme of beneficence, namely the obli- gation to engage in actions that benefit students and promote their welfare. The codes generally require school professionals to “do good” for individ- ual students, to act as advocates for all students, and to promote a school

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culture that is safe and healthy for all individuals. A second common eth- ical theme was nonmaleficence or “do no harm.” Several codes of ethics included explicit statements requiring educators to work to correct condi- tions potentially damaging to the school’s mission and to take steps to protect all students from foreseeable harm.

All of the codes of ethics reviewed require members to strive to meet the highest ideals of their profession and to perform their responsibilities in a competent manner. In addition, all include language that requires com- petence in meeting the needs of students from diverse experiential and cultural backgrounds, with some codes explicitly requiring professionals to seek knowledge and understanding of human diversity with respect to sex- ual orientation, gender identity, and gender expression (i.e., ASCA, NASP, and NASW).

The fourth, fifth, and sixth ethical themes commonly found in the codes of ethics reviewed concerned respecting student autonomy and their rights to privacy and confidentiality. All codes created an ethical duty for educa- tors to respect the right of students to self-determination, that is, to ensure youth have the opportunity to develop their personal identities (e.g., gender identity and expression) in a supportive environment free from verbal or physical abuse. The theme of respect for autonomy also includes the obli- gation of school professionals to allow students, when feasible, to have a “voice and choice” in significant decisions that affect them. All codes also recognized the importance of respect for privacy and the confidentiality of student information. However, the codes of ethics of professionals who provide services within the context of a confidential professional relation- ship included more extensive discussion of these obligations than the NEA’s code.

School health and mental health providers who work with students within the context of a professional–client relationship consider privacy and confidentiality to be two different and important ethical-legal obligations. Privacy has been defined as “the freedom of individuals to choose for them- selves the time and the circumstances under which and the extent to which their beliefs, behaviors, and opinions are to be shared or withheld from oth- ers” (Siegel, 1979, p. 251). In the school setting, students do not have the full range of privacy rights afforded adult citizens. However, health and mental health professionals are ethically obligated to respect the right of privacy of students and do not seek private information that is not needed in the provision of services (e.g., NASP and NASW). NASP’s ethics code explicitly requires its members to:

Respect the right of privacy of students, parents, and colleagues with regard to sexual orientation, gender identity, or transgender status. They do not share information about the sexual orientation, gender identity, or transgender status of a student (including minors), parent, or school

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employee with anyone without that individual’s permission. (NASP, 2010, I.2.6)

In contrast, confidentiality is a professional promise that the educator will “not disclose information about students obtained in the course of pro- fessional service unless disclosure serves a compelling professional purpose or is required by law” (NEA, 1975, I.8). Although confidentiality is primarily a matter of professional ethics, the Family Educational Rights and Privacy Act of 1974 (Pub. L. No. 93-380) protects the confidentiality of student education records as defined in the law. Furthermore, confidential communications to a health or mental health professional in the context of an established help- ing relationship may be privileged. This means the school counselor, nurse, psychologist, or social worker could be held civilly liable for an impermissi- ble breach of client confidentiality, including inappropriate disclosure of an individual’s LGBT status, if the disclosure was the proximate cause of injury to the individual (Jacob, Decker, & Hartshorne, 2011).

Finally, the seventh broad ethical principle of justice was included in every code reviewed. The ethical principle of justice was articulated as a requirement to ensure equal educational opportunity at the level of the stu- dent and/or school system and within the broader framework of the concept of fairness. The NEA’s code states that the educator “recognizes the supreme importance of . . . the guarantee of equal educational opportunity for all” (NEA, 1975, Preamble) and “shall not on the basis of . . . sexual orienta- tion, unfairly exclude any student from participation in any program [or] deny benefits to any student” (I.6). The codes of ethics of school counselors, psychologists, and social workers specifically call for action to prevent and eliminate unfair treatment on the basis of sexual orientation, gender identity, and gender expression.

Codes of ethics thus provide guidance to school professionals in ethi- cal decision making regarding LGBT students and issues. Law, in contrast, is a set of rules of conduct prescribed by the state that has binding legal force. Recent years have witnessed an increased emphasis on positive ethics (Knapp & VandeCreek, 2006); that is, professionals are encouraged to strive for moral excellence rather than simply meeting the minimal obligations to LGBT students outlined in codes of ethics or law.

LEGAL ISSUES: DISCRIMINATION AND HARASSMENT

Under the 10th Amendment of the U.S. Constitution, state governments have assumed the duty to educate children and the power to do so. The authority to educate children and ensure pupil safety is further delegated by state governments to school boards. When educators employed by a school board make decisions in their official roles, such acts are seen as

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an extension of the authority of state government; in legal parlance, public school employees are considered to be state actors. As employees of a school board, educators have a legal obligation to protect all students from reasonably foreseeable risk of harm. However, they are not guarantors of student safety (Russo, 2006). Under state law, school districts and staff are typically shielded from liability if a student is injured as a result of unforeseeable student-on-student violence.

Also, as state actors, educators and school-employed health and mental health practitioners must know and respect the legal rights of schoolchil- dren. If public school employees violate the constitutional or federal statutory rights of students, they may face legal action against them in federal court under Section 1983 of the Civil Rights Act of 1871 (commonly called “Section 1983,” see Table 2).

Because public education is a state matter, many lawsuits involving the legal rights of LGBT students have been decided in state and/or federal courts, at times yielding inconsistent decisions across states and across fed- eral jurisdictions. The cases discussed in this article were chosen because they illustrate key concepts (e.g., Massey v. Banning, 2003), were influen- tial across multiple federal jurisdictions (e.g., Nabozny v. Podlesny, 1996), or because they were decided by the U.S. Supreme Court.

U.S. Constitution

Although public education is a state matter (Table 2), state public education laws and school district policies are subject to the provisions of the U.S. Constitution. For this reason, the Constitution has been the foundation for many decisions affecting education, including the right to equal educational opportunity for all children and student rights in the school setting (e.g., freedom of speech, expression, rights of assembly, privacy rights). For exam- ple, in Tinker v. Des Moines Independent Community School District (1969), the U.S. Supreme Court acknowledged student 1st Amendment rights to free speech and assembly as long as the exercise of those rights does not “materi- ally and substantially” interfere with or disrupt the functioning of the school. The court in Tinker v. Des Moines specifically noted that it was not ruling on a case involving “aggressive, disruptive action” by students (p. 504). Tinker v. Des Moines thus does not appear to extend free speech protections to student-on-student verbal threats or a pattern of aggressive verbal bullying on the basis of perceived LGBT status.

The 14th Amendment has been extremely important in decisions regard- ing schools (Table 2). The equal protection clause of the 14th Amendment provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.” The 14th amendment has been the basis for law- suits against school districts involving discrimination against LGBT students and for failure to provide equal protection from harassment for LGBT youth

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TABLE 2 Brief Overview of Federal Law Pertinent to LGBT Students

U.S. Constitution

10th Amendment State governments, rather than the federal government, have the authority to educate children.

14th Amendment: Substantive Due Process

Schools rules restricting student rights must be reasonably related to the purpose or mission of schools (Tinker v. Des Moines Independent School District, 1969).

14th Amendment: Due Process

Elementary and secondary education is a state-created property right protected by the 14th amendment. Procedural due process means that a state may not take away a liberty or property interest without some sort of procedural fairness to safeguard against wrongful infringement of a citizen’s rights by state government. For this reason, courts have ruled that public schools may not suspend or expel students without due process (Goss v. Lopez, 1975).

14th Amendment: Equal Protection Clause

The 14th Amendment equal protection clause provides that no state shall “deny any person within its jurisdiction the equal protection of the laws.” The courts have interpreted this clause to mean that a state may not make a free public education available to some children but not to others in the state and that the state must provide equal educational opportunity to all citizens within its jurisdiction (e.g., Brown v. Board of Education, 1954).

Federal Civil Rights (Antidiscrimination) Legislationa

Title IX of the Education Amendments of 1972

Protects students from discrimination and harassment based on the student’s gender. This law makes schools that receive any federal funds responsible for taking reasonable steps to remedy harassment based on gender when it is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the district’s programs or activities.

Section 1983 of the Civil Rights Act of 1871

Under Section 1983, any person whose constitutional rights (or rights under federal law) have been violated by a government official (e.g., a state actor such as a public school principal) may sue for damages in federal court, and the official may be held liable for the actual damages.

Note. The U.S. Department of Education Web site has links to statutes and regulations pertinent to education (http://www.ed.gov). aLegislation based on the 14th Amendment to ensure equal educational opportunity.

when compared to non-LGBT classmates. Discrimination and harassment are two separate, but sometimes overlapping, legal concepts. In Massey v. Banning (2003), Ashley, a 14-year-old student, was permanently barred from the girl’s locker room and from participating in gym class after the gym teacher overheard Ashley identify herself as a lesbian. Ashley’s parents filed a lawsuit against the school alleging that the school’s actions violated Ashley’s constitutional right to equal educational opportunity under the 14th Amendment. A federal court ruled the case would not be dismissed, noting

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“school officials who engage in such sexual orientation-based discrimination [emphasis added]” could be held liable under Section 1983 (p. 15).

Nabozny v. Podlesny (1996) provides an example of violation of a stu- dent’s 14th Amendment right to equal protection from harassment because the school failed to protect an openly gay student from harassment to the same extent it protected other students. This case concerned Jamie, a boy who was verbally harassed and physically abused by his fellow students because he was openly gay. While at school, Jamie was urinated on by his attackers, pelted with steel nuts and bolts, and beaten by eight boys. When Jamie reported the incidents, the principal told him “boys will be boys” and that he should expect such treatment from his fellow students if he is going to be openly gay. For over 4 years, Jamie and his parents repeatedly asked school officials to protect him and to discipline his assailants. Despite the fact the school had a policy of investigating and punishing student-on- student sexual harassment, the administrators did not respond to Jamie’s requests. Jamie eventually filed suit against several school officials under Section 1983 alleging, among other claims, his 14th Amendment right to equal protection had been violated by school officials because they denied him the protection extended to other students. Jamie was ultimately awarded nearly 1 million dollars.

Nabozny v. Podlesny (1996) is only one example of many cases in which federal courts ruled that the public schools have a “Constitutional obligation to protect their students from harassment on the basis of sexual orientation” (American Civil Liberties Union, 2007, p. 1). Between 1997 and 2007, the courts awarded over 4 million dollars to LGBT students who filed lawsuits against their schools or school officials for “refusing to take adequate steps to stop anti-gay harassment” (p. 1; see www.aclu.org/lgbt-rights/lgbt-youth- schools for summaries of litigation involving LGBT students).

Federal Statutory Law

Based on the 14th Amendment of the Constitution, Congress also has enacted civil rights legislation prohibiting state and school authorities from discrim- inating against individuals on the basis of race, color, or national origin; sex; or disability in any program or activity receiving any federal funding. Schools must comply with antidiscrimination legislation if they receive any federal funds for any purpose. Federal statutory law does not explicitly pro- hibit discrimination in the public schools based on sexual orientation, gender identity, or gender expression.

Congress passed Title IX of the Educational Amendments of 1972 (Pub. L. No. 92-318) to address the problem of discrimination based on sex. Sexual harassment of students by teachers and peer-to-peer sexual harassment can be a form of discrimination prohibited by Title IX when such harassment interferes with a student’s right to equal educational opportunity. Title IX

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allows schools to receive federal funds on the condition the school protects its students from discriminatory practices based on sex. It is administered by the U.S. Department of Education’s (DOE) Office for Civil Rights (OCR). After receiving notice of a violation, the OCR may order a school district to engage in remedial actions to correct the discrimination. If voluntary compliance cannot be achieved through informal actions, the OCR may take steps to suspend federal funding to the school.

In Gebser v. Lago Vista Independent School District (1998), the Supreme Court considered the remedies that should be available under Title IX to a student who was sexually harassed and concluded Title IX does not allow recovery of monetary damages solely because of a school’s failure to com- ply with the DOE’s Title IX administrative requirements. However, Title IX confers a right of private action; that is, students who are victims of sexual harassment may seek to hold school officials or the district liable for mone- tary damages through lawsuits under Section 1983 or state law. In Gebser v. Lago Vista, the Court noted federal agencies such as the DOE have the power to “promulgate and enforce requirements that effectuate [Title IX’s] nondiscrimination mandate” (Gebser v. Lago Vista Independent School District, p. 292) that extend beyond events and circumstances that would give rise to a claim for money damages (U.S. DOE OCR, 2001, p. ii; Gebser v. Lago Vista, p. 292). The OCR thus has the authority to craft detailed reg- ulations for compliance with Title IX and reduce the flow of federal funds to schools that refuse to comply. The courts, however, determine the legal tests that must be met before a school official or district school can be held liable for monetary damages in a Title IX lawsuit filed by a victim of sexual harassment under Section 1983 or state law.

In 1999, the U.S. Supreme Court decided Davis v. Monroe County Board of Education (1999), a Title IX lawsuit filed against school officials under Section 1983. The case was brought by the mother of a girl who, as a fifth grader, was subjected to a prolonged pattern of sexual harassment by one of her male classmates. The unwanted sexual advances included attempts to touch the girl’s breasts and genital areas. The teacher and school adminis- trators did not respond to complaints from the girl or her mother and the school did not take steps to stop the harassment by disciplining the boy or separating the two (e.g., changing the girl’s seat in class so she did not have to sit next to him).

In Davis v. Monroe County (1999), the Supreme Court ruled that Title IX applies to student-on-student sexual harassment and the Court ruled in favor of the victim. The opinion stated that “damages are not available for simple acts of teasing and name-calling among school children” but rather for behav- ior “so severe, pervasive, and objectively offensive” (p. 1675) that it denies its victims the equal access to education as guaranteed under Title IX. It went on to state that the school officials must have known of the harassment and, acting with “deliberate indifference,” failed to take reasonable steps to stop it.

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Office for Civil Rights Title IX Guidance

The U.S. DOE’s OCR initially published a document titled “Sexual Harassment Guidance: Harassment of Students by School Employees, Other Students, or Third Parties” in 1997 to provide guidance to eliminate sex- ual harassment—a form of sex discrimination—in schools receiving federal funds. In 2001, the OCR published revised and updated guidance. The 2001 document, like its precursor, was based on Title IX of the Education Amendments of 1972 and an analysis of legal issues and principles that emerged from court decisions concerning claims of sexual harassment under Title IX, racial harassment under Title VI of the Civil Rights Act of 1964 (Pub. L. No. 88-352), and sexual harassment in the workplace under Title VII of the Civil Rights Act of 1964.

The 2001 “Revised Sexual Harassment Guidance” document incorpo- rated analysis of the Supreme Court decisions in Davis v. Monroe County (1999) and Oncale v. Sundowner Offshore Services (1998). In Oncale v. Sundowner Offshore Services, the Supreme Court held that same-sex sex- ual harassment in the workplace is in violation of federal laws that prohibit discrimination on the basis of sex. Also, consistent with the 1989 Supreme Court opinion in Price Waterhouse v. Hopkins (1989) that harassment based on gender stereotyping is harassment based on sex, the 2001 document states that “gender-based harassment, including that predicated on sex- stereotyping, is covered by Title IX if it is sufficiently serious to deny or limit a student’s ability to participate in or benefit from its program” (p. v). The OCR’s sexual harassment guidelines also incorporate the Harris v. Forklift Systems (1993) Supreme Court decision, which held that a work environ- ment that is hostile to an employee because of his or her gender violates of Title VII. The OCR provides extensive guidance regarding factors used to evaluate whether a sexually hostile environment exists within a school; that is, whether a combination of factors have created a pattern of sex- ual harassment, noting that harassment based on nonconformity to gender stereotypes could be a factor in evaluating whether a hostile environment exists.

In a 2010 “Dear Colleague Letter” (Ali, 2010), the OCR made known that, as part of national efforts to reduce bullying in schools and to ensure equal educational opportunity for all students, the OCR now explicitly inter- prets Title IX as protecting all students from gender-based harassment. Title IX thus makes schools that receive any federal funds responsible for taking reasonable steps to remedy student-on-student harassment based on gender when it is sufficiently severe, pervasive, or persistent so as to interfere with or limit the ability of an individual to participate in or benefit from the district’s programs or activities. The DCL stated the OCR interprets Title IX to pro- hibit gender-based harassment “of both male and female students regardless

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of the sex of the harasser—i.e., even if the harasser and target are of the same sex” (Ali, 2010, p. 7). The letter also stated Title IX is interpreted as protecting students from harassment based on nonconformity to gender-role stereotypes. Furthermore, if harassment based on gender or nonconformity to gender-role stereotypes results in a hostile learning environment for a stu- dent, schools “have an obligation to take immediate and effective action to eliminate the hostile environment” (Ali, 2010, p. 8).

The OCR’s policy interpretation of Title IX in its 2010 “Dear Colleague Letter” sparked a quick response from the National School Boards Association (NSBA). The NSBA letter of response (Negrón, 2010) exposes the tension between the OCR’s “best practices” approach to creating safe schools—an approach based on promulgating guidelines constructed from analysis of Supreme Court decisions under various antidiscrimination laws— and the NSBA preference for only requiring schools to meet the minimal legal requirements necessary to avoid successful lawsuits against schools for failure to protect students based on characteristics explicitly enumer- ated in federal education antidiscrimination law. The NSBA response did not acknowledge that the DCL was a legitimate exercise of the OCR’s authority to promulgate policies that effectuate Title IX’s nondiscrimination mandate (as per Gebser v. Lago Vista Independent School District, 1998), and the letter failed to acknowledge that OCR policies do not, in and of themselves, impact the legal standards that courts consider (as outlined in Davis v. Monroe County Board of Education, 1999) for determining whether a school offi- cial or district might be held liable for monetary damages sought by a victim of sexual harassment under Section 1983 or state law. The NSBA response only mentioned in a footnote that when private action claims arise, the courts have looked favorably on school districts that implemented proactive steps (as outlined by the OCR) to eliminate harassment. Furthermore, the NSBA called for a greater deference to local control of antibullying efforts, but failed to acknowledge that reliance on local school discretion alone to pre- vent bullying has had unfortunate consequences for LGBT youth, particularly in communities where strong negative attitudes towards LGBT persons exist (e.g., Nabozny v. Podlesny, 1996).

State Antibullying Statutory Laws

In addition to federal efforts to end school bullying, most states had passed school antibullying laws as of July 2011 (NSBA, 2011). These laws differ from each other on multiple dimensions, including the types of conduct covered; how harassment or bullying is defined, whether the law explicitly prohibits bullying based on enumerated characteristics (e.g., race, sexual orientation, and gender expression), and whether the prohibitions include off-campus conduct such as cyberbullying (see NSBA, 2011).

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IMPLICATIONS

The codes of ethics of educators and the OCR’s Title IX policy guidelines recognize educators have a responsibility to promote proactively the safety and wellbeing of all students, at the individual and systems levels. The goal of the OCR’s guidance is to assist schools in developing and implementing their own policies to eliminate Title IX discrimination, including bullying of LGBT youth. As noted previously, the OCR relies primarily on voluntary compliance by schools with its Title IX policies. However, if a school refuses to comply, the OCR has the authority to reduce the flow of federal funds to that school. It is hoped the OCR’s 2010 “Dear Colleague Letter” (Ali, 2010) will encourage more school districts to adopt written policies that specifically prohibit harassment on the basis of sexual orientation, gender identity, and gender expression. The OCR’s 2001 revised sexual harassment guidelines (OCR, 2001) provide a blueprint for developing district policies to eliminate student-on-student sexual harassment and create a school climate that is welcoming to all individuals.

However, if school policies are to effectively influence school climate, they must be translated into practice. To foster a more positive school climate for LGBT students, it is critically important for all school staff to receive train- ing on LGBT youth issues and antibullying interventions. As Jacob, Drevon, Abbuhl, and Taton (2010) noted, growing consensus exists that training on LGBT youth issues must include an affective component (e.g., activities to heighten awareness of, and sensitivity to, the needs of LGBT individuals), a foundational knowledge component (e.g., the science of sexual orien- tation, legal rights of LGBT students), and instruction and supervision in role-specific knowledge and skills (e.g., best practices in teaching about LGBT issues, effective strategies to prevent and respond to bullying, and knowledge of best practices in counseling students who are struggling with questions related to their sexual orientation or gender identity). Schools also are well-advised to provide opportunities for parents to learn about the spe- cial challenges that face LGBT youth and gay-parented families at school and in the community, and to become knowledgeable of the school district’s policies prohibiting discrimination and harassment on the basis of sexual orientation and gender expression.

In addition to adopting policies to reduce discrimination and harass- ment based on sexual orientation and gender expression and ensuring adequate teacher and staff training related to LGBT student issues, school- wide interventions to reduce bullying of LGBT youth are needed. A number of resources are now available for school administrators and other educators who “want to strengthen their schools’ approach to family diversity, gender stereotyping and bullying, and help prepare this and future generations of children to live in an increasingly diverse society” (Kahn, 2010, p. 7). See Kahn (2010) and the Gay, Lesbian, and Straight Education Network (http://

112 S. Jacob

www.glsen.org). However, additional research is needed on the effectiveness of recommended interventions in reducing victimization of LGBT students.

Furthermore, it is important for schools to take steps to foster an envi- ronment in which it is no longer taboo to learn about and discuss LGBT issues in informal classroom discussions and as part of the district-approved curriculum. The federal courts have typically allowed school districts much discretion with regard to curricular content. For example, in Parker v. Hurley (2008), parents filed suit against a Massachusetts school district after children received books on gay people or relationships, or had such books read aloud in class. The parents argued they should have the right to exempt their chil- dren from exposure to such books, and that exposing their children to such books violated their constitutional rights to free exercise of religion as well as their parental rights. Massachusetts, like many states, requires public schools to provide parents notice of and an opportunity to exempt their child from a curricular unit or course on human sexuality. Consistent with an opinion let- ter written by the Massachusetts DOE, the judge in Parker v. Hurley rejected the parents’ argument that the school district should have given the parents prior notice it was going to include books on gay persons on their student reading lists, noting the instruction was to foster respect for diversity and not to teach the sexual implications of homosexuality. Consistent with other federal court rulings, the opinion also noted the books were not instruction in religion or religious beliefs, and that “public schools are not obligated to shield individual students from ideas which potentially are religiously offen- sive, particularly when the school imposes no requirement that the student agree with or affirm those ideas, or even participate in discussions about them” (Parker v. Hurley, 2008, p. 106).

A number of interventions to provide support for LGBT students may be effective in reducing their feelings of alienation and isolation. Available research suggests the presence of support groups for LGBT students and their allies (e.g., a gay–straight alliance group [GSA]) is associated with beneficial outcomes for LGBT youth including better attendance; grades; more positive relationships with friends, school personnel, and teachers; and feeling safer at school (Goodenow, Szalacha, & Westheimer, 2006). However, it is not possible to determine whether GSAs played a causal role in the positive out- comes reported because schools with GSAs may have had a more accepting overall climate than schools without GSAs. It is important for public school faculty to be knowledgeable of the Equal Access Act of 1984 (EEA; Pub. L. No. 98-337). The EEA is a federal law that requires secondary schools that receive any federal funds to permit its students to form a club or group such as a GSA if the school allows other noncurricular clubs. Under the EEA, the clubs must be initiated at student request and attendance must be voluntary. Furthermore, schools must treat such student groups equally when com- pared with other noncurricular groups (e.g., equal access to bulletin boards, meeting space, etc.).

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CONCLUSION

The codes of ethics of educators and the OCR’s 2010 “Dear Colleague Letter” (Ali, 2010) now provide a clearer mandate for public schools to foster a learning environment that is safe and welcoming to all students. A preven- tative, systems-wide, and educative approach to eliminating school bullying of LGBT youth is most likely to be effective and in the best interest of all students.

COMPETING INTERESTS

The author received no specific financial support for this research.

DISCLAIMER AND ACKNOWLEDGMENTS

Please note that the author is not an attorney and the information provided should not be construed as legal advice. A special thank you to Heidi R. Fisher who assisted with the research.

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