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MAKING IT BETTER NOW: HOW ADVOCATES CAN AND SHOULD USE A

CRITICAL PERIOD FOR LGBT YOUTH TO CREATE SUSTAINABLE CHANGE

Rebecca Orel*

“K.R. was a target for other students to harass and intimidate. Students regularly called him ‘fag’ as he was passing by them in

the hallways . . . In seventh grade, K.R. was shoved down the stairs by an eighth grader. The eighth grader threatened K.R.’s life saying, ‘If you tell anyone about this, I’ll f***ing kill you.’”1

I. INTRODUCTION

In the last two years, stories of vicious verbal and physical attacks on LGBT (lesbian, gay, bisexual, and transgender) youth across the country have become the focus of national attention. Beginning in 2010, the media exploded with stories of anti-gay bullying2 and a spike in suicides among students who were taunted for their actual or perceived sexual orientation. Sadly, though the attention was new, these stories were not.

* J.D. Candidate 2013, Columbia Law School. I would like to thank

Professors Kendall Thomas, Christina Duffy Ponsa, and Suzanne Goldberg for their encouragement and feedback. I would also like to thank the editors of the Columbia Human Rights Law Review, especially Michael Powell and Matthew Jordan, for their feedback and editing. Finally, I would like to thank my friends and family for their support and advice throughout this process. This Note is dedicated to LGBT students across the country who are fighting, together with their families and advocates, to make sure that it will get better for generations to come.

1. Complaint at 19, Doe v. Anoka-Hennepin Sch. Dist. No. 11, 0:11–cv–01999–JNE–SER (D. Minn. July 21, 2011).

2. For purposes of this Note, “anti-gay bullying” is used to describe the verbal, physical, and sexual abuse endured by adolescents who are gay as well as those who may not be gay but who are perceived to be gay and who are taunted with anti-gay slurs and innuendo.

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In fact, gay and gender-nonconforming children in school districts all across the United States have long been the targets of bullying. It is only recently that this bullying has become the subject of a national conversation. Suicides among LGBT teenagers, like that of Rutgers student Tyler Clementi, drew significant attention from the media and the public. This prompted studies into the phenomenon and drew attention to the harassment that led these teenagers to take their own lives.3 The spike in news stories about these suicides led to the highly publicized “It Gets Better” campaign, an online project started by columnist Dan Savage that went viral in the fall of 2010. Thousands of people have posted videos to YouTube with messages of hope and solidarity for isolated gay, lesbian, bisexual, and transgender teenagers.4 Policymakers have gotten involved as well, with the Department of Education and the White House officially recognizing the breadth of the problem and the need for a solution.5

This Note argues that the recent attention to this long-term problem has created unprecedented momentum and made this a critical period for LGBT youth. It is the responsibility of advocates to use this period to push for change before national attention shifts and the momentum dissipates. LGBT rights advocates and youth advocates across the country are experimenting with a number of different advocacy strategies, including legislative initiatives and litigation against individual school districts. In July 2011, the Southern Poverty Law Center (SPLC) and the National Center for Lesbian Rights (NCLR) filed suit against the Anoka-Hennepin School District in Minnesota, alleging that the school’s policies regarding sexual orientation led to an epidemic of anti-gay and gender-based harassment. In filing this suit, the SPLC and NCLR followed in the footsteps of other advocates who attempted to use litigation to combat anti-gay bullying. This Note argues that comprehensive state

3. Anahad O’Connor, Suicide Draws Attention to Gay Bullying, N.Y. Times,

Well Blog (Sept. 21, 2011), http://well.blogs.nytimes.com/2011/09/21/suicide-of- gay-teenager-who-urged-hope.

4. Brian Stelter, Campaign Offers Help to Gay Youths, N.Y. Times (Oct. 18, 2010), http://www.nytimes.com/2010/10/19/us/19video.html?scp=1&sq=it%20gets %20better&st=cse.

5. See Letter from Russlyn Ali, Assistant Sec’y for Civil Rights, U.S. Dep’t of Educ., to the Staff of U.S. Dep’t of Educ. (Oct. 26, 2010), available at http://www2.ed.gov/about/offices/list/ocr/letters/colleague-201010.html. (discussing bullying in the context of anti-discrimination laws); Jackie Calmes, Obama’s Focus on Antibullying Efforts, N.Y. Times, Mar. 10, 2011, at A18.

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legislation, rather than suits like this one, is the best way to implement sustainable change. Legislation, more so than litigation, has the potential to force schools to create and continue refining policies to target anti-gay bullying long after national attention has shifted to another problem.

Part II of this Note describes the case law that has emerged from prior lawsuits against school districts. It identifies the common strategies that advocates have pursued in an effort to hold schools and school officials liable for a failure to respond to claims of students who were harassed because of their actual or perceived sexual orientation. Part III discusses the long history of anti-gay bullying in the United States and details its recent rise to national prominence. Part III argues that this attention has created unprecedented momentum that is of uncertain duration. Advocates must take advantage of this critical period to begin creating real, lasting change in schools. Part IV cautions against overreliance on litigation and argues that lawsuits will not be able to create the kind of widespread change that is needed. The existing case law indicates that even the best possible outcomes will not be able to force schools to overhaul their anti-harassment policies in the way necessary to protect LGBT students. Instead, this Note argues that the way to force schools to overhaul their policies and explicitly protect students from anti-gay bullying is through legislation. Advocates should use this critical period to help develop and lobby for legislation mandating that schools adopt anti-bullying programs that (1) are whole-school and prevention-oriented and require continuing education of faculty, students, and parents; (2) expressly protect students from being bullied based on their actual or perceived sexual orientation; and (3) include programs for ensuring compliance and for continually measuring the effectiveness of the programs adopted.

II. AN OVERVIEW OF EXISTING PRECEDENTS AND LITIGATION STRATEGIES IN THE CONTEXT OF ANTI-GAY BULLYING AND SCHOOL

LIABILITY

In July 2011, the Southern Poverty Law Center (SPLC) and the National Center for Lesbian Rights (NCLR) filed suit against the Anoka-Hennepin School District in Minnesota, alleging that the school’s policies regarding sexual orientation led to an epidemic of anti-gay and gender-based harassment.6 This was not the first such

6. See supra note 1 and accompanying text.

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suit against a school district for failure to prevent anti-gay bullying. As the problem is not a new one,7 it is unsurprising that students, parents, and advocates have previously attempted to force change through litigation.8 In fact, the SPLC and the NCLR followed a model that has been used in a number of cases over the past two decades. Suits of this type have tended to focus on the same few strategies and arguments, some of which have been more successful than others. This Part details the constitutional and statutory arguments pursued by advocates as well as their comparative rates of success. The main strategies that have been pursued are due process claims, equal protection claims, Title IX claims, and claims under state civil rights laws.

A. Due Process Claims9 Pursuant to 42 U.S.C. § 1983

Section 1983 of Title 42 of the United States Code provides a civil action for deprivation of constitutional and statutory rights by a state official.10 In order to establish an official’s liability under Section

7. In fact, studies since the 1990s have documented significantly higher

suicide rates among LGBT youth as compared to their heterosexual peers, and studies conducted by safe school and LGBT advocates over the course of three decades have documented the consistency of anti-gay harassment in schools. See Robert E. Owens, Jr., Queer Kids: The Challenges and Promise for Lesbian, Gay, and Bisexual Youth 96 (1998), (referring to a 1984 survey by the National Gay and Lesbian Task Force, which showed that 45 percent of males and 25 percent of females reported having been harassed or attacked in school because they were believed to be gay or lesbian; a decade later, the 1996–1997 report of the Safe Schools Coalition of Washington State reported seventy-seven attacks against lesbian and gay students during that school year, seven of which were gang rapes); Anthony R. D’Augelli, Development and Contextual Factors and Mental Health Among Lesbian, Gay, and Bisexual Youths, in Sexual Orientation and Mental Health: Examining Identity and Development in Lesbian, Gay, and Bisexual People 37, 39 (A.M. Omoto & H.S. Kurtzmann eds., 2006); Robert Garofalo et al., The Association Between Health Risk Behaviors and Sexual Orientation Among a School-Based Sample of Adolescents, 101 Pediatrics 895, 900 (1998).

8. Armen H. Merjian, Henkle v. Gregory: A Landmark Struggle Against Student Gay Bashing, 16 Cardozo J.L. & Gender 41 (2009); see also Alycia N. Broz, Nabozny v. Podlesny: A Teenager's Struggle to End Anti-Gay Violence in Public Schools, 92 Nw. U. L. Rev. 750 (1998) (discussing the failure of courts to apply suspect classification to gays and lesbians).

9. U.S. Const. amend. XIV, §1 (“[N]or shall any State deprive any person of life, liberty, or property, without due process of law. . . .”).

10. 42 U.S.C. § 1983 (establishing a right of action against state officials who, “under color of any [State] statute, ordinance, regulation, custom, or usage . . . subject[], or cause[] to be subjected” any person within the jurisdiction

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1983, a plaintiff must first assert the violation of a federally protected right.11 Advocates have claimed that school districts violate the due process rights of students when school officials fail to protect them from bullying and violence. However, such claims are litigated in the face of difficult Supreme Court precedent regarding the duties government actors owe to individuals.

The landmark case, decided in 1989, is DeShaney v. Winnebago County Department of Social Services.12 Joshua DeShaney’s father beat him repeatedly, and his mother made numerous complaints to the Department of Social Services and to social workers. While the department took steps to protect the child, they did not remove him from his father’s custody. After a beating rendered Joshua severely brain-damaged, he and his mother sued the county’s Department of Social Services. She argued that the failure to protect Joshua from his father had violated his rights under the substantive component of the Due Process Clause.13

The Court rejected the family’s argument, stating: “[A] State’s failure to protect an individual against private violence simply does not constitute a violation of the Due Process Clause.”14 The Court held that the Due Process Clause does not impose an affirmative duty on the government to protect its citizens from violence by private persons.15 It also rejected the plaintiffs’ alternative argument that a special relationship existed between Joshua and the Department of Social Services that gave rise to a duty to protect.16 The Court acknowledged that certain specific relationships can give rise to such

of the state “to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws.” ).

11. Golden State Transit Corp. v. City of Los Angeles, 493 U.S. 103, 106 (1989) (holding that “the plaintiff must assert the violation of a federal right” in order for the defendant to be liable under §1983); see also Baker v. McCollan, 443 U.S. 137, 144 n.3 (1989) (“[Section 1983] is not itself a source of substantive rights, but a method for vindicating federal rights elsewhere conferred by those parts of the United States Constitution and federal statutes that it describes.”).

12. DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189 (1989). 13. Id. at 193. 14. Id. at 197. 15. Id. at 195 (concluding that “[n]othing in the language of the Due

Process Clause itself requires the State to protect the life, liberty, and property of its citizens against invasion by private actors” because the “Clause is phrased as a limitation on the State's power to act, not as a guarantee of certain minimal levels of safety and security” and therefore “its language cannot fairly be extended to impose an affirmative obligation on the State to ensure that those interests do not come to harm through other means”).

16. Id. at 197.

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a duty, but stated that this is a limited rule. Distinguishing cases that recognized an affirmative duty of protection for prisoners and involuntarily committed mental patients, the Court explained: “[These] stand only for the proposition that when the State takes a person into its custody and holds him there against his will, the Constitution imposes upon it a corresponding duty to assume some responsibility for his safety and general well-being.”17 As the state in this case did not create the danger Joshua faced from his father or render him more vulnerable to it, it had no affirmative duty to protect him from his father’s abuse.18

The latter part of this holding has led lower courts to recognize an exception to the DeShaney holding, known as the “state- created danger doctrine.”19 This doctrine holds that if the state does create or exacerbate the danger to which a citizen is exposed, it may be liable for the resulting injuries.20 Erwin Chemerinsky, in a survey of cases decided in the wake of DeShaney, found that while the circuit courts differ on what is sufficient to demonstrate that a state-created danger exists, the cases have one thing in common: “[T]here are very few where the plaintiffs have been able to succeed.”21 Like Joshua DeShaney and his mother, victims of anti-gay bullying have found courts reluctant to apply the state-created danger doctrine to the abuse they suffered.

Due Process claims arising out of anti-gay violence in schools have been unsuccessful. In Nabozny v. Podlesny, the Seventh Circuit rejected the Due Process claim of Jamie Nabozny, a student who had been bullied at his school for being gay.22 The Seventh Circuit had previously held that school administrators do not have a “special relationship” with students and so do not have an affirmative due process duty to protect them.23

17. Id. at 199–200. 18. Id. at 201. 19. Erwin Chemerinsky, Selected Excerpts: Practising Law Institute’s

Twenty-Third Annual Section 1983 Civil Rights Litigation Program: The State- Created Danger Doctrine, 23 Touro L. Rev. 1, 3 (2007).

20. Id. 21. Id. at 23. 22. Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir. 1996). 23. J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990)

(holding that “the government, acting through local school administrations, has not rendered its schoolchildren so helpless that an affirmative constitutional duty to protect arises”).

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Given the lack of a special relationship, the court in Nabozny considered the question of whether the state had created or exacerbated the risk of harm to the plaintiff. The court found that while the school intentionally failed to act to prevent the abuse, it had no duty to do so in the first place and was not responsible for the danger Nabozny faced at school.24 The court acknowledged that this holding was in the face of “wrenching facts”: school officials had repeatedly ignored the harassment and told Nabozny that he deserved and should expect the abuse because of his sexual orientation.25 Nonetheless, the court found: “The defendants’ failure to act left Nabozny in a position of danger, but nothing suggests that their failure to act placed him in danger, or increased the pre-existing threat.”26

In finding that there is no special relationship between students and school administrators, the Seventh Circuit aligned itself with the majority of courts. Most courts have held that compulsory education laws do not create a special relationship and that schools have no affirmative duty to protect students from one another.27 In Dorothy J. v. Little Rock School District, a student who was sexually assaulted by another student sued the school district.28 The Eighth Circuit, relying on DeShaney, rejected the student’s claim that the school district’s custodial relationship with students gave rise to a duty to protect.29 The United States District Court for the District of Minnesota relied on the holding in Dorothy J. in Montgomery v. Independent School District No. 709 and dismissed the due process claim of a student who was verbally and physically harassed for being gay.30

24. Nabozny, 92 F.3d at 460. 25. Id. at 451–52. 26. Id. at 460. 27. Alison Bethel, Keeping Schools Safe: Why Schools Should Have an

Affirmative Duty to Protect Students from Harm by Other Students, 2 Pierce L. Rev. 183, 188–89 (2004); see also D.R. v. Middle Bucks Area Vocational Technical Sch., 972 F.2d 1364 (3d Cir. 1992) (holding that neither compulsory school attendance laws nor a school’s in loco parentis status create the kind of custodial relationship that imposes a duty to protect under DeShaney); Black v. Ind. Area Sch. Dist., 985 F.2d 707 (3d. Cir. 1993) (holding that there is no constitutional duty to protect students from a private bus driver); Maldonado v. Josey, 975 F.2d 727 (10th Cir. 1992) (holding that “no affirmative duty arises merely on the basis of compulsory attendance laws”).

28. Dorothy J. v. Little Rock Sch. Dist., 7 F.3d 729 (8th Cir. 1993). 29. Id. at 732. 30. Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1096

(D. Minn. 2000).

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Given the holding of DeShaney and its subsequent application by lower courts, these due process claims have proven to be an unsuccessful strategy for LGBT youth advocates. It is now highly unlikely that a court will recognize an affirmative duty on the part of schools to combat anti-gay bullying, and advocates appear to be recognizing this fact.31

B. Equal Protection Claims32 Pursuant to 42 U.S.C. §1983

While courts have rejected the argument that schools have a duty to protect students from violence by private persons, they have repeatedly recognized a student’s right to be treated equally with similarly situated students, regardless of sexual orientation. Courts have been much more receptive to claims that schools are violating this right when they ignore anti-gay bullying.

Claims that schools have violated the equal protection rights of their students by failing to respond to anti-gay violence have proven much more successful than due process claims. The landmark case is Nabozny v. Podlesny, discussed above. While the court rejected Nabozny’s due process arguments, it found that school officials had violated his rights under the Equal Protection Clause and were liable for damages. The key was the fact that the school officials’ disregard for Nabozny’s complaints ran contrary to the school district’s general anti-bullying policy. The court noted: “Despite the fact that the school administrator had a policy of investigating and punishing student-on- student battery and sexual harassment, they allegedly turned a deaf ear to Nabozny’s requests [for help].”33 Nabozny experienced verbal abuse, physical battery, and sexual harassment. He endured continuous teasing at school, with other students regularly using epithets such as “fag” and “queer.”34 He was attacked in the bathroom by a number of other students who hit him and knocked his books to the ground.35 Finally, he was held down and subjected to a mock rape in a classroom.36 Not only did the school fail to take action, but

31. Doe v. Anoka-Hennepin Sch. Dist. No. 11, brought by the SPLC and

NCLR, did not contain a due process claim. Nowhere in the complaint do the plaintiffs claim that the school district has an affirmative duty to protect its students from bullying.

32. U.S. Const. amend. XIV, §1 (“[N]or shall any State . . . deny to any person within its jurisdiction the equal protection of the laws. . . .”).

33. Nabozny v. Podlesny, 92 F.3d 446, 449 (7th Cir. 1996). 34. Id. at 452. 35. Id. at 451. 36. Id.

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Principal Podlesny also informed Nabozny and his parents that as an openly gay student he should have expected this behavior.37

Nabozny claimed that his right to equal protection was violated because the school discriminated against him based on both his gender and his sexual orientation. Pointing to the principal’s response of “boys will be boys” after Nabozny had endured the mock rape, the court stated: “We find it impossible to believe that a female lodging a similar complaint would have received the same response.”38 The court also found that Nabozny had introduced sufficient evidence to show that the school’s refusal to address the abuse was motivated by disapproval of his sexual orientation. The court refused to employ a heightened standard of review but found that there was not even a rational basis for the school district’s conduct: “We are unable to garner any rational basis for permitting one student to assault another based on the victim’s orientation, and the defendants do not offer us one.”39

Equal protection claims have proven much more successful than due process claims in targeting school districts for failure to respond to anti-gay bullying. While Nabozny succeeded on claims of gender- and sexual orientation-based discrimination, advocates in other cases have tended to focus on sexual orientation discrimination. Plaintiffs pursuing such claims face two hurdles. Not only must they prove discrimination by school officials, but they must also respond to school officials’ defenses of qualified immunity.40

Plaintiffs must meet a twofold standard when bringing these claims. First, they must prove that the school district discriminated against students as members of an identifiable class (here, their

37. Id. (“Podlesny’s alleged response is somewhat astonishing; she said that

‘boys will be boys’ and told Nabozny that if he was ‘going to be so openly gay,’ he should ‘expect’ such behavior from his fellow students.”).

38. Id. at 454–55. 39. Id. at 457–58. 40. Kentucky v. Graham, 473 U.S. 159, 166–67 (1985) (“When it comes to

defenses to liability, an official in a personal-capacity action may, depending on his position, be able to assert personal immunity defenses, such as objectively reasonable reliance on existing law.”); see also 14A C.J.S. Civil Rights § 459 (2007) (“‘Qualified immunity’ allows government officials to carry out their discretionary duties without fear of personal liability or harassing litigation, protecting from suit all but the plainly incompetent or one who is knowingly violating federal law.”). In the cases that follow, school officials were sued in their personal capacity and employed this defense.

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sexual orientation).41 Second, they must prove that the defendants intentionally discriminated or acted with deliberate indifference,42 which requires that the defendants acted in a manner that is “clearly unreasonable.”43

This standard is fact-specific and requires a very developed record. The courts that find for plaintiffs on these complaints cite to numerous specific instances of student-on-student harassment that clearly targets students for being or “seeming” gay.44 Successful cases feature instances that were brought to the attention of and dismissed by school officials who were aware of the basis for the harassment.45 Fortunately for advocates, though unfortunately for the students, by the time these claims reach a court the plaintiffs often have more than enough material to demonstrate sexual orientation-based harassment and school officials’ indifference.46 Successful claims are predicated on the school officials’ knowledge of the details of the

41. Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1134–35 (9th

Cir. 2003). 42. See Nabozny, 92 F.3d at 454 (holding that plaintiff “must show that the

defendants acted either intentionally or with deliberate indifference”); Gant v. Wallingford Bd. of Educ., 195 F.3d 134, 140 (2d Cir. 1999) (stating that “[i]n order for plaintiff to prevail on his claims for violation of the Fourteenth Amendment’s Equal Protection Clause . . . [proof of] discriminatory intent is required”).

43. Davis v. Monroe Cnty. Bd. of Educ., 526 U.S. 629 (1999) (noting school officials “are deemed ‘deliberately indifferent’ to acts of student-on-student harassment only where the recipient's response to the harassment or lack thereof is clearly unreasonable in light of the known circumstances”).

44. See Flores, 324 F.3d at 1133 (observing that “[o]n several occasions, plaintiff Alana Flores found pornography and notes to the effect of ‘Die, dyke bitch’ inside her locker”, and that plaintiff “alleges that she also complained to a teacher that her classmates in physical education class called her ‘dyke’ and ‘queer’”); Nabozny, 92 F.3d at 451 (noting that “Nabozny’s classmates regularly referred to him as ‘faggot,’ and subjected him to various forms of physical abuse,” such as the instance “Welty and Grande held Nabozny down and performed a mock rape on Nabozny, exclaiming that Nabozny should enjoy it”); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1096 (D. Minn. 2000) (stating that much of the abuse endured by the plaintiff was “because of his perceived sexual orientation, including [being called] . . . ‘femme boy,’ ‘gay boy,’ ‘bitch,’ ‘queer,’ ‘pansy,’ and ‘queen’”).

45. The courts that have addressed these claims frequently point to instances of school officials telling students that they either deserve or should expect the treatment they receive. See Nabozny, 92 F.3d at 452 (“Blauert, the school official supposedly in charge of disciplining, laughed and told Nabozny that Nabozny deserved such treatment because he is gay.”).

46. See Complaint, supra note 1.

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harassment and a failure to respond that is unique to the claims of gay students.47

Plaintiffs suing school officials in their individual capacities often have to overcome defendants’ arguments that they are entitled to qualified immunity under Section 1983.48 In order for a court to find that school officials are not entitled to qualified immunity, it must determine that a right is “clearly established.”49 The test prescribed by the Supreme Court is an objective one: the right at issue is clearly established if a reasonable official would know that his or her conduct was unlawful.50 Courts have been reluctant to recognize qualified immunity in cases where school officials failed to respond to anti-gay bullying, generally finding that it is well established that it is illegal to discriminate based on sexual orientation.51

47. In Nabozny, “[t]he defendants concede[d] that they had a policy and

practice of punishing perpetrators of battery and harassment.” Nabozny, 92 F.3d at 454. As “[i]t is well settled law that departures from established practices may evince discriminatory intent[,] . . . Nabozny’s evidence, combined with the defendants’ admissions, demonstrates that Nabozny was treated differently.” Id. In addition, “Nabozny introduced sufficient evidence to show that the discriminatory treatment was motivated by the defendants’ disapproval of Nabozny’s sexual orientation, including statements by the defendants that Nabozny should expect to be harassed because he is gay.” Id. See also Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 149 (N.D.N.Y. 2011) (rejecting defendants’ motion to dismiss plaintiff’s equal protection claims because “plaintiffs have alleged facts plausibly suggesting that the [school district, school board, and school officials] discriminated against Plaintiff Pratt because of his sex and sexual orientation, and were deliberately indifferent to antigay harassment of him by other students and faculty”).

48. See Saucier v. Katz, 533 U.S. 194, 201 (2001) (providing that government officials have discretion to perform official functions and are therefore immune from civil liability absent violations of federally protected rights that are “clearly established”); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (same).

49. Saucier, 533 U.S. at 201. 50. Harlow, 457 U.S. at 817 (holding that “government officials performing

discretionary functions generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known” [emphasis added]).

51. Nabozny, 92 F.3d at 457 (holding that state law and court precedent sufficiently established the impermissibility of sexual orientation discrimination and school officials were on notice as to their obligations to LGBT students); Flores v. Morgan Hill Unified Sch. Dist., 324 F.3d 1130, 1137 (9th Cir. 2003) (holding that defendants were on notice of their obligations because “our 1990 decision in High Tech Gays established that homosexuals were a definable minority prior to the period of the alleged discrimination in this case”).

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Courts have been receptive to equal protection claims by victims of anti-gay bullying, making these claims a better bet than the due process arguments discussed above.52 The existing case law indicates that plaintiffs in these cases are likely to succeed if they can demonstrate that there were clear instances of harassment based on their actual or perceived sexual orientation and provide evidence that school officials responded differently to the complaints of these students as compared to other students.

C. Title IX Claims

Advocates have also had some success in using Title IX claims to hold school officials accountable for a lack of response to anti-gay bullying.53 In Davis ex rel. LaShonda D. v. Monroe County Board of Education, the Court found that “sufficiently severe” student-on- student sexual harassment could rise to the level of sex-based discrimination actionable under Title IX.54 The Court held that in order to hold school officials liable, they must (1) have actual knowledge and (2) be deliberately indifferent to (3) harassment that “is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”55

While the female plaintiff in Davis was subjected to repeated sexual advances, both verbal and physical, from a male classmate, courts have extended Title IX liability to instances of same-sex sexual harassment. In Oncale v. Sundowner Offshore Services, Inc., the

52. Interestingly, some courts appear to feel constrained by the DeShaney

precedent even in the sphere of equal protection. In Morlock v. W. Cent. Educ. Dist., 46 F. Supp. 2d 892, 918 (D. Minn. 1999), the court held that the rationale articulated in DeShaney and Dorothy J. applied to equal protection claims as well, and that school districts do not have a duty under the Equal Protection Clause to prevent student against student harassment motivated by the victim’s class status.

53. Title IX of the Educational Amendments of 1972, 20 U.S.C. § 1681 (“No person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance. . . .”).

54. Davis ex rel. LaShonda D. v. Monroe Cnty. Bd. of Educ., 526 U.S. 629, 649–50 (1999).

55. Id. at 650 (“[F]unding recipients are properly held liable in damages only where they are deliberately indifferent to sexual harassment, of which they have actual knowledge, that is so severe, pervasive, and objectively offensive that it can be said to deprive the victims of access to the educational opportunities or benefits provided by the school.”).

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Supreme Court held that sex discrimination consisting of same-sex sexual harassment is actionable under Title VII,56 which covers discrimination in the workplace.57 The lower courts have interpreted the holding in Oncale to mean that Title IX, which covers discrimination in schools, also extends to same-sex sexual harassment.58 In Montgomery v. Independent School District No. 709, the district court permitted the plaintiff to amend his Title IX claim to include instances of same-sex sexual harassment.59

Courts have further extended Title IX liability to cases where students are harassed on the basis of their actual or perceived sexual orientation. In Doe ex rel. Doe v. Bellefonte Area School District, the federal district court for the Middle District of Pennsylvania found that verbal and physical assaults by both male and female students against a male plaintiff based on his perceived sexual orientation60 were sufficiently severe to trigger liability under Title IX.61 In Ray v. Antioch, the federal district court for the Northern District of California found that there is no difference between a female student being harassed because of the perception that she is a sex object and a male student being harassed because of the perception that he is

56. Oncale v. Sundowner Offshore Servs., Inc, 523 U.S. 75, 78 (1998)

(holding that “Title VII's prohibition of discrimination ‘because of . . . sex’ protects men as well as women”).

57. Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (“It shall be an unlawful employment practice for an employer . . . to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”).

58. See Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 151 (N.D.N.Y. 2011) (“[A] sex stereotyping claim is legally cognizable under Title VII . . . [s]imilarly, harassment based on nonconformity with sex stereotypes is a legally cognizable claim under Title IX.”); Riccio v. New Haven Bd. of Educ., 467 F. Supp. 2d 219, 226 (D. Conn. 2006) (holding that “the holding in Oncale clearly support[s] the conclusion that a female student, subjected to pejorative, female homosexual names by other female students, can bring a claim of sexual harassment under Title IX”).

59. Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1099– 1100 (D. Minn. 2000).

60. Doe ex rel. Doe v. Bellefonte Area Sch. Dist., No. 4:CV-02-1463, 2003 WL 23718302, at *2–5 (M.D. Pa., Sept. 29, 2003) (“Josh F. also called Doe a ‘fag,’ ‘queer,’ and ‘gay boy.’ . . . Josh F. assaulted Doe in the street. . . . Tara T. called Doe a ‘fairy,’ ‘pixie,’ ‘gay,’ ‘fag,’ ‘faggot,’ and ‘peter-eater.’”).

61. Id. at 8 (“We are of the view that a reasonable finder of fact could conclude based on that evidence of record, and the inferences therefrom drawn in Doe’s favor, that the harassment was sufficiently severe to trigger liability under Title IX.”).

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gay: “In both instances, the conduct is a heinous response to the harasser’s perception of the victim’s sexuality, and is not distinguishable to this court.”62

The federal government has recognized schools’ potential liability for anti-gay bullying under Title IX. In a 2010 “Dear Colleague” letter from the U.S. Department of Education’s Office of Civil Rights, the office warned that school officials failing to respond to sexual orientation-based harassment could be liable under Title IX. The letter explains: “[I]t 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 or femininity.”63

However, advocates making Title IX arguments still face the roadblock of proving that the school’s response amounts to deliberate indifference. The court in Doe v. Bellefonte Area School District, while recognizing the seriousness of the harassment endured by the plaintiff, still granted summary judgment in favor of the defendants. The court found that the school’s response did not rise to the level of indifference and unreasonableness needed to hold the officials responsible under Title IX.64 The court pointed to the district’s anti- harassment policies and the fact that individual perpetrators were warned, despite the fact that these individual warnings did nothing to stop the ongoing harassment Doe suffered at school.65 The plaintiffs made this argument on appeal,66 and the Third Circuit rejected it, holding that the school district met its obligation when it responded to the individual incidents of harassment.67

62. Ray v. Antioch, 107 F. Supp. 2d 1165, 1170 (N.D. Cal. 2000). The

plaintiff in this case was subjected to repeated verbal and physical abuse from his classmates because of the perception that he was gay and because of his mother’s status as a transgendered woman.

63. Dear Colleague Letter, supra note 5, at 7. 64. Doe, 2003 WL 23718302 at *9–10. 65. Id. at *6 (“At all relevant times the School District had in place an anti-

harassment policy . . .”); id. at *9 (“[E]very time Doe reported an alleged incident of harassment and Brachbill warned or otherwise disciplined the alleged perpetrator, that perpetrator never bothered Doe again.”)

66. Doe ex rel. Doe v. Bellefonte Area Sch. Dist., 106 F. App’x 798, 799 (3d Cir. 2004). Plaintiff argued that the failure of the school district to treat the harassment as a systemic problem amounted to deliberate indifference and that the school district’s response was clearly unreasonable in light of the fact that the harassment was ongoing.

67. Id. at 799 (holding that the school was not required to treat the problem as systemic, rather: “The relevant inquiry for purposes of evaluating whether the

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Not every court has set the bar so low for school officials, and advocates have had success arguing that ineffective responses should not shield school officials from liability. In Patterson v. Hudson Area Schools, a case with facts very similar to Doe, the Sixth Circuit reversed a district court’s decision granting summary judgment to the defendants.68 In Patterson, the plaintiffs sued the school district on Title IX grounds for failure to respond to their son’s ongoing harassment by his peers.69 Like Doe, Dane Patterson was subjected to ongoing verbal and physical harassment from a number of fellow students that featured a constant use of gay slurs and sexual innuendo.70 Dane was also the victim of a sexual assault while in school.71 The school’s response was to investigate the complaints made by Dane and reprimand the individual perpetrators;72 like the school district in Doe, there was no recognition or treatment of the harassment as a systemic problem. The federal district court, in holding that the defendants’ actions were not unreasonable, stated: “While Defendants’ actions may not be exactly what Plaintiffs desired and while their actions may not have yielded the results Plaintiffs hoped for, applicable law provides that the Plaintiffs do not have a right to dictate the actions Defendants take.”73 The Sixth Circuit reversed and remanded, holding that a school fails to act reasonably when it knows that its efforts to remedy the situation are ineffective and continues to use the same methods.74 While courts differ on when

School District here was deliberately indifferent to known circumstances of harassment is to review its response to reported incidents of harassment.”).

68. Patterson v. Hudson Area Sch., 551 F.3d 438 (6th Cir. 2009). 69. Id. at 439. 70. Id. (“Beginning in 2002, during DP’s sixth-grade year, various

classmates of DP began teasing DP, calling him names, and pushing and shoving him in the hallways. DP was pushed into lockers and called names such as ‘queer,’ ‘faggot,’ and ‘pig’ by various students on a daily basis.”).

71. Id. at 442 (“The final incident of harassment occurred in late May 2005. After Friday night junior-varsity baseball practice, DP was sexually assaulted by a fellow teammate, LP, in the locker room. LP stripped naked, forced DP into a corner, jumped on DP's shoulders, and rubbed his penis and scrotum on DP's neck and face.”).

72. Patterson v. Hudson Area Sch., No. 05-74439, 2007 WL 4201137, at *8 (E.D. Mich. Nov. 28, 2007) (“[I]n each situation where there was a complaint by the Plaintiffs or Dane, administrators at Hudson Area Schools took action by investigating the incident and, if the perpetrator was identifiable, reprimanding the perpetrator and imposing the punishment the administrators deemed appropriate under the circumstances.”).

73. Id. at *10. 74. Patterson, 551 F.3d at 446 (“Where a school district has actual

knowledge that its efforts to remediate are ineffective, and it continues to use

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a school district’s response is unreasonable and in violation of Title IX, it is undisputed that advocates have had some success using this strategy.

D. Claims Based on State Civil Rights Laws

Plaintiffs challenging schools’ responses to anti-gay bullying often include state law claims along with the federal statutory and constitutional claims detailed above. This Note provides a few examples.

The plaintiff in Pratt v. Indian River Central School District75 sued for violations of the New York Human Rights Law (NYHRL)76 and the New York Civil Rights Law (NYCRL).77 A.E.P., a student, witnessed her brother Charlie driven from school by pervasive bullying.78 In response to this harassment and the school’s subsequent inaction, the plaintiff attempted to form a Gay-Straight Alliance (GSA),79 and the school denied her request.80 The NYHRL

those same methods to no avail, such district has failed to act reasonably in light of the known circumstances.”).

75. Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011).

76. Plaintiffs sued under §296(4) of the New York Human Rights Law (NYHRL), which states in relevant part that it is “unlawful discriminatory practice” for an “education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation” to deny use of its facilities to “any person otherwise qualified, or to permit the harassment of any student or applicant, by reason of his race, color, religion, disability, national origin, sexual orientation, military status, sex, age or marital status. . . .” N.Y. Human Rights Law § 296(4) (2007).

77. Plaintiffs sued under § 40-c and § 40-d of The New York Civil Rights Law (NYCRL). Section 40-c states that every person “within the jurisdiction of this state shall be entitled to the equal protection of the laws of this state or any subdivision thereof” and that “[n]o person shall, because of race, creed, color, national origin, sex, marital status, sexual orientation or disability . . . be subjected to any discrimination in his or her civil rights, or to any harassment . . . in the exercise thereof” by any person, organization, or state entity. N.Y. Civil Rights Law § 40-c (McKinney 2010). Section 40-d provides the civil and criminal penalties, including damages owed to individuals whose rights were violated.

78. Complaint at 4, Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135 (N.D.N.Y. 2011) (No. 7:09-cv-411).

79. Id. (“After seeing first-hand the destructive effects of discriminatory abuse endured by her older brother, A.E.P. was determined to create a safer, more supportive school environment for all students—regardless of sexual orientation. . . . To this end, A.E.P. recently attempted to form a gay-straight student alliance at Indian River High School.”).

80. Id.

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and NYCRL claims centered on the school’s failure to treat its gay students equally by refusing to provide equal access to the GSA as well as its failure to respond to the ongoing harassment of gay students.81 The court dismissed the NYHRL claims on the grounds that “a school district is not an ‘education corporation or association’ within the contemplation of NYHRL, and therefore the statute does not apply to claims by students alleging discrimination by public school districts.”82 However, the court denied defendants’ motion to dismiss the NYCRL claims. The plaintiffs alleged that school officials violated the NYCRL by discriminating against plaintiffs based on sex and sexual orientation as well as perceived sexual orientation and anti-gay animus, and by aiding and inciting others to do the same.83 The court found that these allegations amounted to plausible claims under the NYCRL.84 The Pratt case is an example of using state law to allege both sex and sexual orientation discrimination, as well as discrimination on the basis of perceived sexual orientation.

The plaintiffs in Montgomery v. Independent School District No. 709 also pursued state law claims under the Minnesota Human Rights Act (MHRA).85 The court denied defendants’ motion for summary judgment on this claim, finding that the “egregious conduct”86 alleged by the plaintiff created a cognizable MHRA claim. However, the court employed language confining the MHRA to such egregious conduct, concerned that some might think the law reached “normal” bullying.87 This language implies that a certain amount of

81. Id. at 42–43. 82. Pratt, 803 F. Supp. 2d 135 at 148. 83. Id. at 150. 84. Id. 85. Minnesota Human Rights Act (MHRA), Minn. Stat. § 363.03, subd. 5

(2008) (sexual harassment constitutes a form of prohibited discrimination under this provision only when it “has the purpose or effect of substantially interfering with an individual’s education or creating an intimidating educational environment”).

86. Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1094 (D. Minn. 2000) (observing that “plaintiff’s allegations include conduct that is much more egregious than the ordinary childish behavior,” including allegations “that some of his peers grabbed his inner thighs, chest, crotch and buttocks during class, that one student on several occasions stood behind plaintiff and pressed his genitals into plaintiff’s backside, and that the same student repeatedly initiated physical contact with plaintiff while pretending to have involuntary sex with him”).

87. Id. (concluding that courts “must be cognizant of the reality” that “immature, micheivious, and sometimes mean behavior . . . is part of the

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cruelty is just a natural part of childhood and cannot and should not be reached by the law. Students who deal with pervasive verbal abuse but not physical violence or explicit sexual harassment could be left without this kind of state law remedy. As Part III of this Note explains, children and teenagers suffering this kind of harassment do not generally feel a clear distinction between “acceptable” meanness and “egregious” bullying. These victories on state law claims may be a double-edged sword because they render certain kinds of anti-gay bullying acceptable and, even worse, imply that children have to suffer unimaginable physical and mental distress before they have cognizable claims.

Plaintiffs have used various combinations of the above claims—federal and state, statutory and constitutional—in an effort to hold schools and their officials liable for anti-gay bullying. The challenges involved in litigating these claims, combined with the real dangers faced by LGBT students in schools, make it crucial to think critically about existing litigation strategies. When determining what tactics to focus on during this critical period, advocates must ask themselves if these suits are likely to produce real, long-term victories for LGBT youth in the United States.

III. A CRITICAL PERIOD FOR LGBT YOUTH

A national spotlight is shining on anti-gay bullying in schools and its tragic consequences, creating unprecedented momentum for change. The long history of mistreatment of LGBT students, coupled with the very recent national frenzy surrounding the issue, demonstrates why this is a critical period and why it is so dangerous for advocates to spend time on the wrong advocacy strategy. We cannot know how long the attention will last; the public eye is notoriously fickle, and there is no guarantee that it will continue to stay trained on the problems faced by gay and gender-nonconforming children and teenagers. This presents a problem for advocates: what is the best way to make use of this attention and momentum? The choice of strategy right now is crucial. Focusing on the wrong strategy risks wasting this momentum and having it fizzle out before advocates can plant the seeds needed for sustainable change.

maturation process ” and that a student “simply cannot sue his school district on the ground that he had a disagreeable childhood”).

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A. A Long History of Anti-Gay Bullying in Schools

Despite what the recent flurry of media attention may suggest, the severe bullying of LGBT students is not a new problem. As the precedents discussed in Part II demonstrate, advocates have been attempting to combat anti-gay bullying and school indifference for some time. The high levels of harassment that LGBT students experience have been particularly worrisome, given that studies since the 1990s have shown significantly higher suicide rates among LGBT youth as compared to their heterosexual peers.88

Studies conducted by psychologists, safe school advocates, and LGBT advocates over the course of the past three decades have documented the consistency of anti-gay harassment in schools. In a 1984 survey by the National Gay and Lesbian Task Force, 45 percent of males and 25 percent of females reported that they had been harassed or attacked in school because they were believed to be gay or lesbian.89 The 1996–1997 report of the Safe Schools Coalition of Washington State reported seventy-seven attacks against lesbian and gay students during that school year, seven of which were gang rapes.90

In a 1995 study conducted by Neil Pilkington and Anthony D’Augelli, 22 percent of the male respondents and 29 percent of the female respondents reported that they had been physically hurt by another student because of their sexual orientation.91 Pilkington and D’Augelli reported the consequences of both physical and mental harassment: “Approximately one third of the males and females reported that being harassed or verbally abused in school currently limits their openness about their sexual orientation. 28 percent of males and 19 percent of females acknowledged that their openness was affected by fears of being physically hurt by students and

88. Poppy Harlow & Emily Probst, Don’t Teach, Don’t Tell?, CNN.com (July

29, 2011), http://www.cnn.com/2011/US/07/29/minnesota.school.gay.policy /index.html?iref=allsearch.

89. Owens, supra note 7; see Curtis D. Proctor & Victor K. Groze, Risk Factors for Suicide Among Gay, Lesbian, and Bisexual Youths, 39 Social Work 504 (1994); Scott L. Hershberger et al., Predictors of Suicide Attempts Among Gay, Lesbian, and Bisexual Youth, 12 J. Adolescent Res. 477 (1997); Linda L. Morrison & Jeff L’Heureux, Suicide and Gay/Lesbian/Bisexual Youth: Implications For Clinicians, 24 J. Adolesence 39 (2001).

90. Owens, supra note 7. 91. Neil W. Pilkington & Anthony R. D’Augelli, Victimization of Lesbian,

Gay, and Bisexual Youth in Community Settings, 23 J. Cmty. Psychol. 44 (1995).

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teachers.”92 In addition, students reported feelings of helplessness due to the inaction of authorities.93

Since 1999, the Gay, Lesbian, and Straight Education Network (GLSEN) has conducted an annual School Climate Survey, detailing LGBT students’ experiences with verbal, physical, and sexual harassment.94 In a press release announcing the 2009 School Climate Survey, GLSEN reported: “An analysis of National School Climate Survey data over 10 years showed that since 1999 . . . LGBT students’ experiences with more severe forms of bullying and harassment have remained relatively constant.”95 The 1999 School Climate Survey found that the majority of youth surveyed (69 percent) reported experiencing some form of harassment or violence.96 Ten years later, the 2009 School Climate Survey found that 84.6 percent of students surveyed were verbally harassed at school because of their sexual orientation and 63.7 percent because of their gender expression.97 In addition, 40.1 percent reported being physically harassed at school because of their sexual orientation and 27.2 percent because of their gender expression.98 Finally, a third of students surveyed reported complete inaction on the part of school authorities in response to this abuse.99

92. Id.; see Anthony R. D’Augelli, Development and Contextual Factors and

Mental Health Among Lesbian, Gay, and Bisexual Youths, in Recent Research on Sexual Orientation 37 (A.E. Omoto & H.M. Kurtzmann eds.), available at http://www.hhdev.psu.edu/hdfs/faculty/pubs/Omoto1.pdf; Anthony R. D’Augelli, Lesbian, Gay, and Bisexual Youth in Community Settings: Personal Challenges and Mental Health Problems, 21 Am. J. Cmty. Psychol. 421 (1993); Robert Garofalo et al., The Association Between Health Risk Behaviors and Sexual Orientation Among a School-Based Sample of Adolescents, 101 Pediatrics 895, 900 (1998).

93. Pilkington & D’Augelli, supra note 91. 94. See GLSEN, GLSEN Research Summary: 1999 National School

Climate Survey, http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/ file/2-1.pdf (last visited Feb. 2, 2013).

95. Press Release, GLSEN, 2009 National School Climate Survey: Nearly 9 out of 10 LGBT Students Experience Harassment in School (Sep 14, 2010), available at http://www.glsen.org/cgi-bin/iowa/all/news/record/2624.html.

96. GLSEN Research Summary: 1999 National School Climate Survey, supra note 94, at 1.

97. GLSEN, 2009 National School Climate Survey: The Experiences of Lesbian, Gay, Bisexual, and Transgender Youth in Our Nation’s Schools xvi, available at http://www.glsen.org/binary-data/GLSEN_ATTACHMENTS/file/000/ 001/1675-2.pdf [hereinafter 2009 School Climate Survey].

98. Id. 99. Id. (reporting that “[t]his high incidence of harassment and assault is

exacerbated by school staff rarely, if ever, intervening on behalf of LGBT

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LGBT advocates and health professionals have been attuned to the problem of anti-gay bullying in schools for decades. However, it is only in the past two years that the public and policymakers have begun to pay the same kind of attention.100 The next section deals with the recent eruption of media coverage, the drawing of national attention to the problem, and the ways in which this attention has created a critical period for LGBT youth.

B. Gaining the National Spotlight

On September 22, 2010, Rutgers University freshman Tyler Clementi jumped off the George Washington Bridge to his death. The day before, two fellow students had secretly recorded and broadcast a video of him having sex with another man.101 As Tyler’s story gained the attention of the national media, journalists began linking his death to other suicides across the country. Thirteen-year-old Seth Walsh from Tehachapi, California, thirteen-year-old Asher Brown from Houston, Texas, and fifteen-year-old Billy Lucas from Greensburg, Indiana all committed suicide within the same three-week period. Each one had been bullied relentlessly at school, either because he was out or because other students assumed he was gay.102

What could have remained local stories gained the attention of national outlets like The Washington Post and The New York Times. The problem of suicide among gay teens was not new, but it was suddenly news. As The New York Times reported: “The deaths have set off an impassioned—and sometimes angry—response from gay activists and caught the attention of federal officials, including

students” and that “62.4% of students who were harassed or assaulted in school did not report the incident to school staff, believing little to no action would be taken or the situation could become worse if reported” while “33.8% of the students who did report an incident said that school staff did nothing in response”).

100. GLSEN Executive Director Eliza Byard has recognized this long reluctance by the public to pay serious attention to the dangers faced by LGBT youth: “As our nation seems to finally be taking bullying more seriously, it is crucial that LGBT students are no longer left out of efforts to address this public health crisis.” Press Release: “2009 National School Climate Survey: Nearly 9 out of 10 LGBT Students Experience Harassment in School,” supra note 95.

101. Beth DeFalco & Geoff Mulvihill, N.J. Student Kills Self After Sex Broadcast, Wash. Post, Sept. 30, 2010, at A3.

102. Melissa Bell, Four dead in three weeks, Wash. Post Blog Post (Sept. 30, 2010), http://voices.washingtonpost.com/blog-post/2010/09/suicide_of _gay_teenagers_four.html.

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Secretary of Education Arne Duncan, who . . . called the suicides ‘unnecessary tragedies’ brought on by ‘the trauma of being bullied.’”103

The issue gained even more momentum after columnist Dan Savage wrote about the rash of suicides on his blog and in his column, “Savage Love.” In the wake of Billy Lucas’s death, Savage wrote: “I wish I could have talked to this kid for five minutes. I wish I could have told Billy that it gets better. I wish I could have told him that, however bad things were, however isolated and alone he was, it gets better.”104 Savage posted a video in which he and his husband reached out to LGBT kids with that very message and encouraged his readers to do the same. The project and the story soon went viral, with thousands of people posting their own videos to the YouTube site that Savage set up.105

Grim studies also shed light on the high rates of bullying and suicide suffered by gay teens. GLSEN’s 2009 National School Climate Survey found that nearly nine out of ten LGBT students experienced harassment at school and that almost two-thirds felt unsafe because of their sexual orientation.106 The national attention devoted to the issue prompted new studies as well: a 2011 study in Pediatrics found that LGBT students were significantly more likely than their heterosexual peers to attempt suicide. Mark Hatzenbuehler, who conducted the study, found that 20 percent of gay and lesbian youth and 22 percent of bisexual youth had attempted suicide at least once in the past year, as compared with 4 percent of heterosexual youth.107

Furthermore, the study found that LGBT teens living in unsupportive (“negative”) social environments were 20 percent more likely to attempt suicide.108

The publicity surrounding the suicides, the proliferation of studies on the subject, and the phenomenon of the It Gets Better movement have all combined to put the problem of anti-LGBT

103. Jesse McKinley, Suicides Put Light on Pressures of Gay Teenagers,

N.Y. Times, Oct. 3, 2010, at A9. 104. Dan Savage, Give ‘Em Hope, The Stranger, Sept. 23, 2010, at 71,

available at http://www.thestranger.com/seattle/SavageLove?oid=4940874. 105. Nicole Santa Cruz, YouTube Channel Tells Gay Teens: It Gets Better,

L.A. Times, Oct. 9, 2010, available at http://articles.latimes.com/2010/oct/09/ nation/la-na-adv-gay-youtube-20101010.

106. 2009 National School Climate Study, supra note 97, at 22, 26. 107. Mark L. Hatzenbuehler, The Social Environment and Suicide

Attempts in Lesbian, Gay, and Bisexual Youth, 127 Pediatrics 896, 899–900 (2011).

108. Id.

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bullying and its consequences in the national spotlight. The shock produced by these suicides fed into the increased publicity. Andrew Barnett, the executive director of the Sexual Minority Youth Assistance League (SMYAL) in Washington, D.C., explained: “There’s this feeling in the older LGBT community that coming out is easier for youth now than it was for them. And that’s just not always true.”109 The suicides and the light that they shed on the difficulties faced by LGBT students stand in stark contrast to the recent successes of the gay rights movement, such as the repeal of Don’t Ask, Don’t Tell and the legalization of gay marriage in New York and Washington State. As Kevin Cathcart, executive director of Lambda Legal, explained: “It’s a very odd moment, because there’s all of these horrific things happening, and they are happening at a moment when we’re making faster progress than, I think, ever before.”110

C. An Epidemic Within an Epidemic

As stories of bullying and spiking teen suicide rates surfaced around the country, advocates began focusing particular attention on the Anoka-Hennepin School District in Minnesota, and news stories began mentioning the particularly high suicide rate in the district. In one of its earlier stories on the issue, The Washington Post reported: “15-year-old Justin Aaberg, who killed himself in July, was the third openly gay student from his Minnesota high school to take his own life in a year.”111 Within two years, the number of teen suicides in the district had risen to eight and state officials declared a “suicide contagion.”112 CNN, which devoted a “CNN Presents” episode to the story in July 2011, noted in its coverage that at least four of the students were gay, questioning their sexuality, or perceived to be gay.113

In May 2011, the Southern Poverty Law Center and the National Center for Lesbian Rights sent a letter to the district superintendent. Current and former students from the school district had retained the organizations and asked them to investigate the

109. Petula Dvorak, As Life Experiences of Gay Teens Illustrate, the World

Is Still Far From Accepting, Wash. Post, Oct. 5, 2010, at B4. 110. Sandhya Somashekhar, Bittersweet Victories for Gay Rights

Advocates, Wash. Post, Oct. 17, 2010, at A10. 111. Dvorak, supra note 109. 112. Erik Eckholm, In Suburb, Battle Goes Public on Bullying of Gay

Students, N.Y. Times, Sept. 13, 2011, at A1. 113. Harlow & Probst, supra note 88.

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bullying of students based on their sexual orientation, perceived sexual orientation, and gender expression. According to the SPLC and NCLR, this investigation revealed that “lesbian, gay, bisexual, and transgender (‘LGBT’) students and those perceived as LGBT within the District remain in jeopardy in a hostile and alienating environment.”114 The organizations demanded that the school district take steps to remedy the environment and threatened a lawsuit if no action was taken.115 Two months later, the U.S. Department of Justice and the Department of Education’s Office of Civil Rights revealed that they had also begun an investigation into claims of bullying and harassment in the school district.116

The increased attention from both advocates and journalists drew attention to the school district’s attitude towards the LGBT community. The school district’s “Sexual Orientation Curriculum Policy,” adopted in 2009 by the school board and referred to as the “neutrality policy,” stated:

Teaching about sexual orientation is not a part of the District adopted curriculum; rather, such matters are best addressed within individual family homes, churches, or community organizations. Anoka-Hennepin staff, in the course of their professional duties, shall remain neutral on matters regarding sexual orientation including but not limited to student led discussions.117 At an August 2010 meeting of the school board, graduates of

Anoka High School described the isolation they felt as a result of the policy. According to one graduate: “I go home and my parents tell me I am cursed. I go to my church and I am rejected and condemned. I go to my community? What community do I have to go to?”118 School officials disputed the notion that anti-gay bullying had contributed to the suicide contagion and pointed to new anti-bullying and anti-suicide programming in the district. LGBT advocates and

114. Letter from Samuel Wolfe, Staff Attorney, S. Poverty Law Ctr., to

Dennis L. Carlson, Superintendent, Anoka-Hennepin Sch. Dist. (May 24, 2011). 115. Id. 116. Poppy Harlow, Minnesota School District Investigated After Civil

Rights Complaint, CNN.com, July 21, 2011, http://www.cnn.com/2011/US/07/20/ minnesota.school.civil.rights.probe/index.html.

117. Andy Birkey, Anti-Gay Group Organizes in Anoka-Hennepin Schools as Community Deals With Gay Suicides, Minnesota Independent, August 26, 2010, available at http://minnesotaindependent.com/64047/anti-gay-group- organizes-in-anoka-schools-as-community-deals-with-gay-suicides.

118. Id.

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parents of bullied students argued that any such programs were undercut by the existence of the neutrality policy, calling it a “gag order” that created a hostile environment for LGBT and gender-nonconforming students.119

In July 2011, the SPLC and NCLR made good on their threat and filed a lawsuit against the school district on behalf of six current and former students. The suit claimed that the school’s policy on LGBT issues fostered an environment of silence and stigma and prevented teachers from effectively responding to bullying and destructive stereotypes.120 The suit detailed the verbal and physical abuse suffered by the plaintiffs and alleged that these students suffered discrimination based on sexual orientation in violation of the Fourteenth Amendment, discrimination based on sex in violation of Title IX, and discrimination based on sexual orientation in violation of the Minnesota Human Rights Act.121 The suit concluded in the spring of 2012, when the school district settled with the plaintiffs.122 The settlement resolved both the SPLC-NCLR suit and the separate complaint brought by the U.S. Justice Department after its joint investigation with the Department of Education. The settlement included a total of $270,000 in damages for the six plaintiffs, as well as an agreement by the school board to take proactive measures to combat bullying in the district’s schools. According to a press release by the Southern Poverty Law Center, the agreement “outlines specific steps the district must take to address and prevent anti-LGBT harassment, including fully investigating reports of harassment and instituting training that specifically addresses anti-LGBT bias.”123

119. Eckholm, supra note 112. 120. Complaint, supra note 1, at 4–6. 121. Id. at 46–64. 122. Press Release, S. Poverty Law Ctr., Minnesota School District Agrees

to Protect Students from Anti-Gay Bullying in Settlement with SPLC (Mar. 3, 2012), available at http://www.splcenter.org/get-informed/news/minnesota- school-district-agrees-to-protect-students-from-lgbt-bullying-in-settlem.

123. The press release details the specific steps the district must take, including hiring a “harassment prevention official to lead efforts to eliminate and prevent future instances of harassment in the district” and a “mental health consultant to assess how the district helps harassed students.” Id. “The district’s annual anti-bullying survey will be strengthened” and the district’s “policies and practices regarding harassment will be reviewed by the Great Lakes Equity Center, which will recommend revisions.” Id. The center helps public schools promote equal educational opportunities. The district will also “work with the center to identify harassment ‘hot spots’ in its schools, on school buses and in other locations.” Id. In addition, the “district will work with its harassment prevention official and the equity center to provide anti-harassment training to

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Furthermore, the Departments of Justice and Education agreed to monitor the district’s compliance for five years.124

Abbe Land, the executive director and CEO of The Trevor Project125 proclaimed the settlement a “blueprint for school safety” and claimed that it demonstrated a “sea change” for LGBT youth in schools.126 However, while Ms. Land’s article correctly described the preventative procedures required by the settlement—preventative procedures that other schools can model themselves after—she glossed over the issue of compliance. The federal government agreed to monitor compliance for this particular school district, but what happens to students in other school districts in Minnesota? In states across the country? Advocates rightly cheered this settlement and these plaintiffs, but these advocates have not explained how such settlements are meant to force statewide and nationwide change that can be effectively monitored.

Finally, the district’s choices in the implementation of this settlement cast serious doubt on its ability to self-monitor. The settlement did include some measures aimed at ensuring compliance: the school district was told to adopt a coordinator to ensure that the school lives up to its promises, as well as establish a task force to advise the district.127 In the fall of 2012, the Anoka-Hennepin school district appointed Bryan Lindquist, a member of the Parents Action League (PAL), to the anti-bullying task force.128 The Parents Action

students and district employees who interact with students” and “will ensure that a counselor or other qualified mental health professional is available during school hours for students.” Id. Finally, the district “will develop procedures for parental notification that are sensitive to a student’s right of privacy regarding his or her real or perceived orientation or gender identity” and “will improve a recently formed harassment prevent task force which will advise the district on how to promote a positive educational climate.” Id.

124. Id. 125. The Trevor Project is a national organization that provides crisis

intervention and suicide prevention services to LGBT youth across the country. See The Trevor Project, http://www.thetrevorproject.org.

126. Abbe Land, The Anoka-Hennepin School District Settlement: A Sea Change for School Safety Nationwide, The Huffington Post (Mar. 8, 2012, 1:40 PM), http://www.huffingtonpost.com/abbe-land/anoka-hennepin-settlement- school-safety_b_1332411.html.

127. Doe v. Anoka-Hennepin Sch. Dist. No. 11, No. 11-cv-01999-JNE-SER, slip op. 16–22, 35–36 (D. Minn. Mar. 5, 2012).

128. Zack Ford, Bullying-Riddled School District Appoints Hate Group Leader To Anti-Bullying Committee, ThinkProgress.org (Oct. 18, 2012, 12:45 PM), http://thinkprogress.org/lgbt/2012/10/18/1040471/bullying-riddled-school-district- appoints-hate-group-leader-to-anti-bullying-committee.

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League has been labeled an anti-gay hate group by the Southern Poverty Law Center.129 Lindquist has previously advocated for the inclusion of discredited “ex-gay” propaganda on the school district’s website, and has referred to homosexuality as a “sexual disorder” and “concerning” in previous testimony before the school board.130

In contrast, Tammy Aaberg, whose son Justin was bullied and committed suicide in 2010, applied to the task force and was denied.131 Ms. Aaberg spoke directly with a reporter from LGBTQ Nation, stating: “Another slap in the face by Anoka-Hennepin. . . . I would like to make sure that they adopt better policies and better ways of handling bullying.”132 School Board Chairman Tom Heidemann defended Lindquist’s appointment as ensuring “very diverse points of view” on the task force.133

The settlement is a significant success for the SPLC, the NCLR, and LGBT youth advocates generally. However, given its limitations both locally and as a blueprint, it is important to be cautious when estimating the ability of such settlements to create real, long-term change both in the district in which they occur and in other districts and states.

D. A Critical Period for LGBT Youth

High rates of harassment and suicide among LGBT youth are not new problems. What is new is the national focus on this problem and the momentum for change that it has created. Beginning in the fall of 2010, national media outlets started reporting on the high incidence of anti-LGBT activity in schools, prompting action on the part of the government as well as advocates. The Justice Department’s investigation into Anoka-Hennepin and the

129. See Active Anti-Gay Groups, S. Poverty Law Ctr.,

http://www.splcenter.org/get-informed/intelligence-files/ideology/anti- gay/active_hate_groups (last visited Feb. 18, 2013).

130. Brody Levesque, Parent raises concerns over appointment of gay rights opponent to anti-bullying task force, LGBTQNation (Oct. 16, 2012), http://www.lgbtqnation.com/2012/10/parent-raises-concerns-over-appointment-of- gay-rights-opponent-to-anti-bullying-task-force/.

131. Id. 132. Id. 133. Bryan Lindquist Controversy: Anoka-Hennepin Parents Upset That

Anti-Bullying Task Force Includes Man From “Hate Group,” The Huffington Post (Oct. 19, 2012, 4:26 PM), http://www.huffingtonpost.com/2012/10/19/bryan- lindquist-controver_n_1989350.html.

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Department of Education’s 2010 “Dear Colleague” letter to schools focusing on anti-LGBT activity134 indicate that the federal government is paying attention. In March 2011, President Obama hosted the first ever White House Conference on Bullying Prevention.135 The events of 2010-2011 were what Matthew Coles would call a “galvanizing event”136 that illustrated the severe problems that LGBT youth face every day in schools across the country. The serious momentum created by the press coverage, the It Gets Better movement, and the federal government presents advocates with an opportunity to work on implementing real, sustainable change across the country.

There is reason to fear that this attention and momentum will dissipate. In addition to the general risks presented by a nation with a short attention span, there is a danger that this new awareness of the problems faced by LGBT youth will fade in the face of victories elsewhere in the gay rights movement. As Kevin Cathcart, executive director of Lambda Legal, explained: “[This is] a moment when we’re making faster progress than, I think, ever before.”137 Andrew Barnett, of SMYAL, discussed above, related the mistaken belief that LGBT youth have it “easier” now than the older generations did.138

In fact, there has been a great deal of discussion in the past few years focusing on the increased political power of the gay community and the major successes that have occurred in relatively quick succession. John D’Emilio, in a 2000 essay, described the cyclical nature of the gay rights movement, stating that change comes in periods “we might colloquially describe as ‘leaping’ and ‘creeping.’”139 Given the recent repeal of Don’t Ask, Don’t Tell,140 the legislative successes for gay marriage in New York141 and

134. Dear Colleague Letter, supra note 5. 135. Jackie Calmes, Obama’s Focus on Antibullying Efforts, N.Y. Times,

Mar. 10, 2011, at A18. 136. Matthew A. Coles, Try This at Home! A Do-It-Yourself Guide to

Winning Lesbian and Gay Civil Rights 61 (1996). 137. Somashekhar, supra note 110. 138. See supra text accompanying note 109. 139. John D’Emilio, Cycles of Change, Questions of Strategy: The Gay and

Lesbian Movement After Fifty Years, in The Politics of Gay Rights 42 (Craig A. Rimmerman et al. eds., 2000).

140. Elisabeth Bumiller, A Final Phase for Ending ‘Don’t Ask, Don’t Tell,’ N.Y. Times, July 23, 2011, at A13.

141. New York City Clerk, Same Sex Marriage Information, City Clerk’s Office–City of New York, available at http://www.cityclerk.nyc.gov/html/marriage/ marriage_bureau.shtml.

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Washington,142 and the Ninth Circuit’s very recent and highly visible affirmation of the unconstitutionality of California’s Proposition 8,143 it is easy to argue that the gay rights movement is in a period of “leaping.” David Remnick, editor of the New Yorker, has categorized the gay rights movement as a civil rights movement in “hyperspeed.”144 A 2010 article by Kenji Yoshino argues that “a ‘gay tipping point’ occurred in the United States in the latter decades of the twentieth century” that should make us rethink whether the LGBT community can still be considered “politically powerless” for purposes of constitutional litigation.145

Specifically, there is a great deal of focus on the idea that the younger generations are bringing with them a future of increased tolerance. Evan Wolfson, Director of Freedom to Marry, instructs advocates: “Remember, we have a secret weapon. . . . [W]e on the side of justice have generational momentum. Younger people overwhelmingly support ending this discrimination. . . . [A]s young people come into ascendancy, even the voting will change.”146 The relative speed of political change and the concept of increased tolerance among young people does not sit comfortably with statistics on the high levels of anti-gay bullying in schools. There is a real danger that the public and policymakers who are now attuned to the dangers faced by LGBT students will stop paying attention because the news of harassment and suicides will be overwhelmed by the successes of the broader gay rights movement. These successes and the frequent assumptions about the relative tolerance of younger generations contribute to a picture that things are getting better for LGBT youth. In reality, the recent studies detailed above, both from LGBT advocates and physicians, demonstrate that anti-gay bullying

142. Lornet Turnbull, Gregoire Signs Gay Marriage Bill Into Law, Seattle

Times (Feb. 13, 2012), http://seattletimes.com/html/localnews/2017497028_ gaymarriage14m.html.

143. Maura Dolan & Carol J. Williams, Divided Court Rejects Proposition 8, L.A. Times (Feb. 8, 2012), http://articles.latimes.com/2012/feb/08/local/la-me- prop8-20120208.

144. David Remnick, It Gets Better, The New Yorker, July 11, 2011, at 31, 31–32 (“The gay-rights movement has, in many respects, mirrored the black freedom movement, but in hyper-speed. . . . [T]he advances made . . . have been remarkable, even thrilling.”), available at http://www.newyorker.com/talk/ comment/2011/07/11/110711taco_talk_remnick.

145. Kenji Yoshino, The Gay Tipping Point, 57 UCLA L. Rev. 1537, 1542– 44 (2010).

146. Evan Wolfson, Marriage Equality and Some Lessons for the Scary Work of Winning, 14 Law & Sexuality 135, 145 (2005).

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is a current, intransigent problem with severe and sometimes tragic consequences.

Part IV examines the major downfalls of litigation as an advocacy strategy in this area and suggests that advocates should instead focus their attention on lobbying for state legislation that will force schools to embrace comprehensive anti-bullying policies that protect LGBT students.

IV. AN ARGUMENT FOR FOCUSING ON STATE LEGISLATION

This is a critical moment for LGBT youth. The problem facing advocates is how to harness the unprecedented momentum for change before it dissipates. As the Anoka-Hennepin suit demonstrates, advocates have turned again147 to the type of litigation that has been pursued, with varying rates of success, since Nabozny v. Podlesny.148 This Part explains the risks of pursuing a litigation-based strategy in the context of anti-gay bullying and suggests that advocates focus instead on taking advantage of the current attention and momentum to fight for state legislation that has a greater chance of producing lasting, widespread change.

A. The Problems of a Litigation-Based Strategy in the Context of Anti-Gay Bullying

1. Monetary Damages Are Counterproductive and Not a Guarantee of Change

The arguments in favor of a litigation-based strategy are easy to articulate. By forcing school districts to settle or to pay damages when they lose, litigation creates a financial incentive for that school and other schools to change the policy at issue out of fear of further financial consequences. Cummings and Rhode explain: “[L]egal action

147. See Doe v. Anoka-Hennepin Sch. Dist. No. 11 (D. Minn. filed July 21,

2011); Pratt v. Indian River Cent. Sch. Dist., 803 F. Supp. 2d 135, 149 (N.D.N.Y. 2011); see also Kathleen Conn, Allegations of School District Liability for Bullying, Cyberbullying, and Teen Suicides after Sexting: Are New Legal Standards Emerging in the Courts?, 37 New Eng. J. on Crim. & Civ. Confinement 227, 227 (“Allegations of school district liability for failing to curb bullying and cyberbullying, once relatively rare, are now commonplace in the courts.”).

148. Nabozny v. Podlesny, 92 F.3d 446, 460 (7th Cir. 1996).

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may allow activists to leverage gains by putting specific issues on the public agenda and threatening to impose litigation costs if decision makers fail to find political solutions.”149 In fact, advocates have had success in imposing financial consequences on school districts. In addition to the winning cases discussed in Part II, some school districts have chosen to settle suits by victims of bullying. In August 2009, for example, the New York Civil Liberties Union sued the Mohawk Central School District in New York on behalf of a gay teenager who had faced relentless bullying. In March 2010, the school district settled with the NYCLU, agreeing to pay damages to the student in question and implement a series of reforms to protect students from anti-gay harassment.150

There are two major problems with this argument. The first is that by suing school districts to try to force education reform, advocates are taking money away from schools. As a result, schools forced to pay damages either due to settlement or litigation loss will have less funding to implement the proposed reforms. Stephen Sugarman pinpoints the tension between a desire for reform and a desire for compensation: “[W]hen such suits succeed a school district would have to pay damages out of its general budget . . . so the schools would wind up with less money for running the educational system.”151

If the goal of LGBT youth advocates was simply to get justice and compensation for certain individual victims of anti-gay bullying,

149. Scott L. Cummings & Deborah L. Rhode, Public Interest

Litigation: Insights from Theory and Practice, 36 Fordham Urb. L.J. 603, 610 (2009); see also Sylvia Hermann Bukoffsky, School District Liability for Student- Inflicted Sexual Harassment: School Administrators Learn a Lesson Under Title IX, 42 Wayne L. Rev. 171, 193 (“[W]hen a school does not take adequate measures to stop the sexual harassment, threatening a portion of the school budget, already a sparse resource, may be the ultimate weapon a student can use to ensure compliance with federal standards.”); Stephen D. Sugarman, Accountability Through the Courts, 82 School R. 233, 233–34 (arguing that “[a]dvocates of damage suits . . . believe that if the legal system makes the schooling enterprise financially responsible for its academic failures, these dual purposes will be served” because “the threat of liability will serve a deterrence function and provide an incentive for school success, while the availability of the damage claim in cases of failure will permit victims to be compensated for their loss”).

150. Press Release, New York Civil Liberties Union, NYCLU, DOJ and Herkimer Co. School District Settle Lawsuit with School Agreeing to Protect Gay Students from Harassment (Mar. 29, 2010), available at http://www.nyclu.org/ news/nyclu-doj-and-herkimer-co-school-district-settle-lawsuit-with-school- agreeing-protect-gay-stude.

151. Sugarman, supra note 149, at 234.

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the larger systemic effects (or lack thereof) of successful litigation might not matter. However, these advocates discuss litigation as a means to a broader end of increasing tolerance in schools and ensuring that school officials remain accountable to every student regardless of his or her sexual orientation or gender expression. In a statement on the filing of the Anoka-Hennepin suit, GLSEN Executive Director Eliza Byard spoke of a wide-ranging strategy: “Every student deserves to go to school free from fear and able to learn and fulfill their full potential. For schools to live up to their responsibility to every student, they must be prepared to address anti-LGBT bias and behavior to clear away a barrier to learning.”152 Forcing schools to pay damages to individual victims is contrary to the larger goals of reducing the instances of anti-gay bullying in schools by increasing tolerance education and ensuring that educators are responding to this harassment in ways that address its systemic nature.

Furthermore, there is no guarantee that these suits will produce lasting change in these particular schools or broader change in surrounding schools afraid of similar suits. Advocates who believe that monetary consequences can force these schools to change need to take a look at the effects of litigation that has already occurred. Suits against schools for failure to respond to anti-gay harassment are not new. However, while they have been brought fairly consistently and with some success for the past two decades, they do not appear to have had a broader impact on anti-gay bullying in schools. In the sixteen years since Nabozny v. Podlesny was decided, students across the country have continued to experience severe harassment in schools.153 Minnesota is a particularly interesting case study. In 2000, the federal district court for the District of Minnesota recognized the potential for equal protection and Title IX claims against a school district that responded in disparate ways to heterosexual and LGBT students who reported abuse.154 Nearly twelve years later, Minnesota’s largest school system still features rampant anti-gay bullying155 and a high teen suicide rate.156 Neither the abstract threat

152. Press Release, GLSEN, GLSEN Statement on NCLR, SPLC Lawsuit

against Anoka-Hennepin School District (July 21, 2011), available at http://www.glsen.org/cgi-bin/iowa/all/news/record/2777.html.

153. See GLSEN, The 2009 National School Climate Survey, supra note 97. 154. Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081,

1096–1100 (D. Minn. 2000). 155. See Complaint, supra note 1; Eckholm, supra note 112; Harlow, supra

note 116.

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of litigation posed by the existing case law or the specific threat of litigation posed by the SPLC and the NCLR have changed the way that the district’s schools approach the problem. Despite victories like Nabozny, anti-gay bullying is still a major problem in schools all over the country. As Anoka-Hennepin shows, advocates should be very cautious about overestimating the value of these suits.

2. Individual Litigation Victories Do Not Easily Translate Into Broader Structural Change: The Danger of a Hollow Win

The most likely victories under existing precedent will not easily translate to broader changes in schools. Litigation does not happen in a vacuum, and an advocate’s victory in court does not always translate to a victory for the movement. Levitsky points to the dangers that can occur when a movement’s strategies are not in sync: “[L]egal strategies [can] become disconnected from the movement’s political/cultural strategies, leaving the movement vulnerable not only to political backlash, but also to legal victories that cannot be translated into social reform.”157

This latter risk is particularly acute in the context of anti-bullying litigation. In the wake of DeShaney and its interpretation by the majority of lower courts, courts cannot mandate that schools have an affirmative duty to prevent or respond to anti-gay harassment and violence.158 The best possible outcome of

156. Birkey, supra note 117. 157. Sandra R. Levitsky, To Lead with Law: Reassessing the Influence of

Legal Advocacy Organizations in Social Movements, in Cause Lawyers and Social Movements 145, 158 (Austin Sarat & Stuart A. Scheingold eds., 2006).

158. See DeShaney v. Winnebago Cnty. Dept. of Soc. Servs., 489 U.S. 189 (1989); Montgomery v. Indep. Sch. Dist. No. 709, 109 F. Supp. 2d 1081, 1096 (D. Minn. 2000); J.O. v. Alton Cmty. Unit Sch. Dist. 11, 909 F.2d 267, 272 (7th Cir. 1990); D.R. by L.R. v. Middle Bucks Area Vocational Tech. Sch., 972 F.2d 1364, 1369 (3d Cir. 1992) (holding that neither compulsory school attendance laws nor a school’s in loco parentis status create the kind of custodial relationship that imposes a duty to protect under DeShaney); Black v. Indiana Area Sch. Dist., 985 F.2d 707, 714 (3d. Cir. 1993) (holding that there is no constitutional duty to protect students from private bus driver); Maldonado v. Josey, 975 F.2d 727, 731 (10th Cir. 1992) (holding that “no affirmative duty arises merely on the basis of compulsory attendance laws”). The district court in Minnesota where the SPLC’s suit was filed has extended the DeShaney holding even further. In Morlock v. W. Cent. Educ. Dist., 46 F. Supp. 892, 918 (D. Minn. 1999), the court held that the rationale articulated in DeShaney and Dorothy J. applied to equal protection claims as well, and that school districts do not have a duty under the Equal

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these suits is the receipt of damages on equal protection, Title IX, or state law grounds.159 In addition to the possible counterproductive nature of these damages, this type of win does not easily translate into widespread change. It does not mandate the implementation of pro-tolerance education or an anti-bullying policy that pays specific attention to anti-gay harassment. A victory in these cases does not create a duty on the part of schools; it merely creates a fear of financial liability that, as discussed above, has not had the sort of effects that advocates are aiming for, either more broadly or within the very school districts where the litigation took place.

In addition, the possibility of victory is limited to certain types of cases and may not in fact be the right kind of victory for many plaintiffs. The victories that have been achieved have focused on the problem of a school’s disparate treatment of its LGBT students. A school’s failure to combat anti-gay bullying, absent evidence that it responded more forcefully to the claims of its heterosexual students, is unlikely to lead to a win in the courts given the existing precedent and trends. Yet LGBT students suffer in school districts that ignore all types of bullying. Evidence of disparate treatment may not exist in these districts, even though gay students are being targeted. In addition, not every school district is ineffective in the same way. Officials in a district may be taking measures to respond to bullying generally that are not effective in targeting the specific kind of intolerance that leads students to harass those who are gay and gender-nonconforming. If courts follow the lead of existing precedent, such a case would not meet the test for an equal protection violation.

Advocates must consider these limitations. In their discussion of the possible pitfalls of impact litigation, Arkles, Gehi, and Redfield explain: “[E]ven if a court grants the relief demanded in an impact case, the relief sought may not be the relief most beneficial to the

Protection Clause to prevent student against student harassment motivated by the victim’s class status.

159. See Nabozny v. Podlesny, 92 F.3d 446, 460–61 (7th Cir. 1996); Doe ex rel. Doe v. Bellefonte Area Sch. Dist., No. 4:CV–02–1463, 2003 WL 23718302, at *2, *5 (M.D. Pa. Sept. 29, 2003); Ray v. Antioch, 107 F. Supp. 2d 1165, 1170–71 (N.D. California 2000); Patterson v. Hudson Area Sch., No. 05-74439, 2007 WL 4201137, at *8 (E.D. Mich. Nov. 28, 2007); Pratt v. Indian River Cent. Sch. Dist., 805 F. Supp. 2d 135 (N.D.N.Y. 2011).

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community.”160 For LGBT students who are targets of abuse, getting the same treatment afforded to heterosexual victims of bullying may not be enough. Decisions like Nabozny are important statements that all students deserve equal treatment in school regardless of sexual orientation. Yet anti-gay bullying and the deep-rooted intolerance that produces it may require a level of special attention and programming that decisions like Nabozny do not mandate.

Given the existing case law, the danger of a hollow victory in these cases is high. Thomas Stoddard explains: “[Lawsuits] are often ineffective at the long-term resolution of issues with deep cultural roots, for they focus on rules rather than the culture that sustains those rules, and as a result frequently fail to engage or connect with the public.”161 Even if there is a victory in court, the maximum relief possible under existing case law will not force schools to adopt the type of policies necessary to change the underlying cultural forces that led to this abuse in the first place. Without underlying structural change, the impact of these lawsuits is likely to fade, and with it the attention of the nation. A focus on lawsuits that benefit individual victims of anti-gay bullying but do not lay the groundwork for new programming and lasting change in schools risks wasting the momentum that has been created. The danger is that the people and policymakers finally paying attention will witness the temporary vindication produced by these suits and assume that they are change-producing wins. As a result, the attention of the public and the government will move to another problem now that this one has been “solved.” The serious limitations of litigation when it comes to creating change both within and outside individual school districts caution against overreliance on lawsuits during this critical period.

B. A Better Solution: State-Based Legislative Change

In order to effectively combat anti-gay bullying, schools need to implement preventative rather than punitive policies that specifically address the problems of intolerance and take affirmative steps to educate students and teachers as to the need for equal treatment regardless of sexual orientation. Punitive policies that punish offenses individually without addressing the larger problem of

160. Gabriel Arkles et al., The Role of Lawyers in Trans Liberation:

Building a Transformative Movement for Social Change, 8 Seattle J. Soc. Just. 579, 597 (2009).

161. Thomas Stoddard, Bleeding Heart: Reflections on Using the Law to Make Social Change, 72 N.Y.U. L. Rev. 967, 985–86 (1997).

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anti-gay bullying and its broader causes have not proven effective at changing school environments,162 even though some courts have found such responses sufficient to shield schools from liability.163

“A Guide For Schools,” published by the U.S. Department of Education’s Office of Civil Rights and the National Association of Attorneys General, recognizes the need for preventative measures that address systemic problems rather than punishment for individual instances: “To establish an educational environment free from discrimination and harassment will ordinarily require more than just punishing individual instances of misconduct.”164 The report recognizes the larger structural causes of bullying; namely, intolerance and ignorance. Among the preventative measures recommended by the report are “programs [that] . . . provide students with a curriculum, teaching methods, and school activities that discourage stereotypes and respond to the concerns of students of different races and cultural backgrounds,” continuous monitoring of the school climate, requirements on school staff to monitor and intervene, and partnerships with parents and community groups.165 The National Education Association, the National PTA, the American Association of School Administrators, and the National Association of Secondary School Principals have all recommended that Congress make changes in federal law that would require schools to adopt preventative rather than punitive policies.166

162. The schools in Doe and Patterson employed policies of responding to

individual incidents of bullying. These responses were ineffective and the plaintiffs in both cases continued to suffer ongoing and pervasive anti-gay bullying from multiple students throughout their time in the schools.

163. In Doe the school responded to individual instances of harassment, but these responses failed to stop the ongoing abuse the plaintiff faced from multiple students. The court held that preventative measures addressing the systemic problem were not necessary: “[T]he relevant inquiry for purposes of evaluating whether the School District here was deliberately indifferent to known circumstances of harassment is to review its response to reported incidents of harassment.” Doe v. Bellefonte Area Sch. Dist., 106 F. App’x 798, 800 (3d Cir. 2004).

164. U.S. Dep’t of Educ., Office of Civil Rights & Nat’l Ass’n of Att’ys Gen., Protecting Students From Harassment and Hate Crime: A Guide for Schools 5 (1999), available at http://www.ed.gov/offices/OCR/archives/Harassment/ harassment.pdf (“Students will benefit most from stopping harassment from happening at all. Therefore, an effective anti-harassment program must incorporate the kinds of strategies that will prevent harassment. . . .”).

165. Id. at 8. 166. Nat’l Educ. Ass’n, Bridging the Gap in Federal Law: Promoting

Safe Schools and Improved Student Achievement by Preventing Bullying

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As discussed above, the possible litigation victories available under existing case law cannot force schools to take the kinds of comprehensive, wide-ranging, and affirmative steps that are necessary to truly change school environments. Legislative changes on the state level are necessary in order to force schools to implement these preventative measures. Advocates should focus on legislative initiatives that compel schools to implement comprehensive anti-bullying policies that specifically protect LGBT students, including measures to ensure compliance.

In 1996, a Norwegian researcher named Dan Olweus wrote an article arguing for the implementation of a “school-based intervention program” in response to school bullying.167 Olweus explained his recommended program in the following way: “This core program in many ways represents what is often called ‘a whole-school policy approach to bullying’ . . . [i]t consists of a set of routines, rules, and strategies of communication and action for dealing with existing and future bullying problems in the school.”168 The program focuses on preventative strategies that involve students, faculty, and parents in the creation of a more positive school environment.169 The Olweus program grew out of a period in Norway very similar to the critical period discussed in this Note. In 1983, three adolescent boys in northern Norway committed suicide as a result of severe bullying by peers, leading the Ministry of Education to initiate a national campaign against bullying in schools. The Olweus program was developed and implemented successfully and since 2001 has been

and Harassment in Our Schools 5–7 (2007), available at http://www.nea.org/schoolsafety/images/bridginggap.pdf. The article details the proposition by the NEA’s member organizations that Congress change federal law to require (1) school districts to adopt comprehensive, clear anti-bullying policies; (2) school districts to adopt preventative rather than punitive anti-bullying strategies; and (3) states and districts to maintain data regarding bullying incidents.

167. Dan Olweus, Bullying at School: Knowledge Base and an Effective Intervention Program, 794 Annals N.Y. Acad. Sci. 265 (1996).

168. Id. at 275. 169. Id. at 273–74. The intervention program is “built on a limited set of

key principles derived chiefly from research on the development and modification of the implicated problem behaviors, in particular, aggressive behavior.” It emphasizing creating a school environment “characterized by warmth, positive interest, and involvement from adults, on the one hand, and firm limits to unacceptable behavior . . . on the other.” Id.

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implemented on a wide scale in elementary and lower secondary schools throughout Norway.170

LGBT advocates should use current awareness and momentum to press for state legislation that would force schools to implement preventative policies. Such policies must affirmatively teach tolerance of differences, including sexual orientation. Some states are already working towards this kind of change. In May 2010, Massachusetts Governor Deval Patrick signed into law Senate Bill 2404, entitled “An Act Relative to Bullying in Schools.”171 This law came in the wake of two student suicides in Massachusetts, including that of Carl Walker-Hoover, an eleven-year-old who was repeatedly taunted for being gay.172

The law is an application of the Olweus whole school approach, in that it requires each Massachusetts school, whether public, charter, or non-public, to “develop and update a bullying prevention and intervention plan in consultation with teachers, school staff, professional support personnel, school volunteers, administrators, community representatives, local law enforcement agencies, students, parents and guardians.”173 The law requires schools to draw on the entire community—parents, students, and staff—to create and monitor the implementation of these policies. The

170. Olweus Bullying Prevention Program, A Brief History of the Olweus

Bullying Prevention Program http://www.violencepreventionworks.org/public/ olweus_history.page (last visited Nov. 1, 2012). According to the organization, the initial Olweus program led to: “Reductions of 50% or more in student reports of being bullied and bullying others. Peer and teacher ratings of bullying problems have yielded roughly similar results. . . . Clear improvements in the classroom social climate, as reflected in students’ reports of improved order and discipline, more positive social relationships, and more positive attitudes toward schoolwork and school.” See Dan Olweus & Susan P. Limber, Blueprints for Violence Prevention: Bullying Prevention Program (1999); Dan Olweus, Bully/Victim Problems Among Schoolchildren: Basic Facts and Effects of a School-Based Intervention Program, in The Development and Treatment of Childhood Aggression 411, 411–48 (D. Pepler & K. Rubin eds., 1991); Dan Olweus, A Useful Evaluation Design, and Effects of the Olweus Bullying Prevention Program, 11 Psychol. Crime & L. 389, 389–402 (2005); Jan Helge Kallestad & Dan Olweus, Predicting Teachers’ and Schools’ Implementation of the Olweus Bullying Prevention Program: A Multilevel Study, 6 Prevention & Treatment 3, 3–21 (2003).

171. S.B. 2404, 186 Gen. Ct., 2d Ann. Sess., 2010 Mass. Acts ch. 92. 172. Press Release, GLSEN, 11-Year-Old Hangs Himself after Enduring

Daily Anti-Gay Bullying (Apr. 9, 2009), available at http://www.glsen.org/ walker.html.

173. Mass. Gen. Laws ch. 71, § 37O (2012).

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law also requires that faculty report incidents of bullying when they hear or become aware of them and mandates that teachers undergo prevention and intervention training every year.174 Finally, the law states that the bullying prevention programs adopted by Massachusetts schools must include provisions for educating parents on the curriculum and how it can be reinforced at home.175 In compelling schools to adopt programs that recognize the need for reinforcement at home, the Massachusetts law recognizes that the larger structural causes of bullying, namely intolerance and ignorance, require the intervention of parents as well as teachers.

Advocates should press for whole-school, prevention-based approaches such as the one mandated by the Massachusetts law. However, given the specific risks faced by LGBT students, advocates should push for policies that include sexual orientation among the categories specifically protected from bullying, something that the Massachusetts model failed to do. While the law provides that the continuing education of faculty and staff must include “information about specific categories of students who have been shown to be particularly at risk for bullying in the school environment,” the at- risk nature of LGBT students and the problem of homophobia in schools are not specifically mentioned.176 According to the Society for Research in Child Development, “16 states plus the District of Columbia prohibit discrimination or harassment in schools on the basis of sexual orientation . . . [but] 33 states have enacted school anti-bullying/anti-harassment laws that do not enumerate specific protections for any group of students, including LGBT students.”177 Schools in these latter states have room to skip over the particular threats faced by their LGBT students without technically flouting the law. These schools can conduct anti-bullying training, mentioning students with special needs or students of different races, without ever stating that it is impermissible to target a student because of sexual orientation. These laws leave schools free to ignore the

174. Id. 175. Id. (providing that the plan shall include “provisions for educating

parents and guardians about the bullying prevention curriculum of the district or school; how parents and guardians can reinforce the curriculum at home and support the district or school prevention and intervention plan; the dynamics of bullying; and online safety and cyber-bullying”).

176. Id. 177. Stephen Russell et al., Social Policy Report: Safe Schools Policy for

LGBTQ Students, 4 Sharing Child & Youth Dev. Knowledge 8 (2010).

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particular strain of intolerance leading to the severe harassment of LGBT youth.

In contrast, laws passed in 2010 in Illinois178 and New York179 explicitly prohibit bullying on the basis of actual or perceived sexual orientation. Both the Illinois and New York models contain measures to ensure school compliance and monitor the progress of schools in the fight against bullying. The Illinois law (Prevent School Violence Illinois) created the School Bullying Prevention Task Force, which is tasked with monitoring the effectiveness of anti-bullying programs adopted by schools.180 The New York law (Dignity for All Students Act) requires that schools report incidents of discrimination and bias harassment to the State Education Department and requires the State Education Department to assist schools with implementation of these anti-discrimination and anti-bullying policies.181

Given the pervasive nature of anti-gay harassment in schools, punitive measures and weak reporting requirements are not enough. Advocates should examine the recent legislative successes in Massachusetts, New York, and Illinois and press for the same kinds of comprehensive legislation elsewhere. Advocates should help develop and lobby for state legislation that (1) mandates that schools adopt whole-school, prevention-oriented programs that require

178. Prevent School Violence Illinois, ch. 5/27, 2010 Ill. Laws 989. This law

defines bullying for the first time in Illinois state law and creates the Illinois Bullying Prevention Task Force. The law lists the categories of students against which bullying is explicitly prohibited, including “[a]ctual or perceived . . . sexual orientation, gender-related identity or expression, [or] association with a person or group with one or more of the aforementioned actual or perceived characteristics, or any other distinguishing characteristic.”

179. Dignity for All Students Act, ch. 482, 2010 N.Y. Laws 1319 (McKinney). This law provides protection from harassment or discrimination, including such acts based on a person’s “actual or perceived . . . sexual orientation, gender, or sex.” Id., § 12. It requires schools to: adopt non-discrimination and anti- harassment policies and inform students and parents of those policies; develop guidelines for nondiscriminatory instruction and counseling and for training teachers, administrators, and other school employees to discourage discrimination and harassment; and report incidents of discrimination and bias harassment to the State Education Department. The law also requires the State Education Department to assist school districts to implement the requirements of the act with regulations, direct services, and model policies.

180. Prevent School Violence Illinois, ch. 5/27, 2010 Ill. Laws 989; see The School Bullying Prevention Task Force (SBPTF), http://www.isbe.net/SBPTF/ default.htm (last visited Nov. 4, 2012).

181. Dignity for All Students Act, ch. 482, §§ 14–15, 2010 N.Y. Sess. Laws 1319, 1320–1321 (McKinney).

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continuing education of faculty, students, and parents; (2) expressly protects students from being bullied based on their actual or perceived sexual orientation; and (3) includes programs for ensuring compliance and for continually measuring the effectiveness of the programs adopted.

Anti-gay bullying is a pervasive problem in schools across the country, and the amount of abuse suffered by LGBT and perceived-LGBT students has remained consistent over the past two decades, even in the face of litigation victories. Advocates must turn their attention to legislative change, as legislation, not litigation, has the potential to mandate that schools update and enforce their anti-bullying programming to address the problems faced by LGBT youth.

V. CONCLUSION

Anti-gay bullying is not a new problem. As studies by health professionals and advocates demonstrate, gay and gender-nonconforming students have suffered verbal and physical abuse in schools across the country for decades. The difference now is that people are finally paying attention. Continuous news coverage in 2010 and 2011, sparked by the tragic suicides of LGBT students across the nation, opened the public’s eyes to the depth and breadth of this problem. This new attention has created serious and unprecedented momentum for change that is of uncertain duration. As a result, this is a critical period for LGBT youth. The problem that advocates face in this period is what strategy to pursue: Misplaced focus risks losing the attention of the nation and of the policymakers who have the power to start creating real change.

This Note has argued that focusing on litigation is a mistake that will waste the potential of this critical window. The existing case law reflects the limits of victories that can be achieved through the courts. The inability and unwillingness of courts to state that schools have an affirmative duty to protect students from anti-gay bullying means that the ultimate litigation win in these cases is the award of damages for violations of equal protection, Title IX, and state laws. Damages have so far proved ineffective in scaring schools into reforming their anti-bullying policies, and the implementation of settlements has created some serious doubts about the ability of school districts to self-police once litigation has ceased.

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The way to force schools to overhaul their policies and explicitly protect students from anti-gay bullying is through legislation. Advocates should use this critical period to lobby for legislation that: (1) Mandates that schools adopt whole-school, prevention-oriented programs that require continuing education of faculty, students, and parents; (2) expressly protects students from being bullied based on their actual or perceived sexual orientation; and (3) includes programs for ensuring compliance and for continually measuring the effectiveness of the programs adopted.

Those who want to improve life for LGBT students must work to help implement laws that will maintain awareness and prevention of anti-gay bullying in schools even when national attention has shifted elsewhere. Advocates need to recognize that we are in a critical period and take advantage of its momentum to focus on legislation that has the potential for sustainable change. This will ensure that “it gets better” for LGBT youth sooner rather than later.

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