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Home » Legal » High School Civil Liberties Project » Gay Students' Rights
GAY STUDENTS' RIGHTS Can my school ban gay student groups? If your 7th- to 12th-grade school allows other non-curricular clubs to form and meet at the school, then it must give official recognition to any gay student group. Your right to organize and meet in public schools stems from the First Amendment, the Bill of Rights — specifically, its bottom-line statement that no law can restrict “the right of the people peaceably to assemble” — and is further backed by the federal Equal Access Act of 1984, which says that public schools must allow all non-curricular clubs to meet and receive funding on an equal footing. However, if your school does not allow any non-curricular clubs at all, it is not obligated to allow a gay student group to meet. (Bd. Of Educ. of Westside Comm., Schs. v. Mergens, 1990). Can I speak my mind about gay issues in a public school? While your public school has wide-ranging authority to determine what is taught in class, you have the right to voice your point of view when speaking on an issue relevant to the discussion at hand - unless your conduct “materially disrupts class work or involves substantial disorder or invasion of the rights of others.” (Tinker v. Des Moines Indep. Sch. Dist., 1969). The Tinker standard also gives students free reign to wear symbols such as rainbows or pink triangles, unless the school can show that the symbols trigger an actual threat to school order. In general, the Supreme Court has upheld the importance of a free exchange of ideas, as long as they are not lewd or disruptive of the educational process. Do I have the right to take a same-sex date to the prom? Yes. A student’s choice to take a same-sex date to a prom, or any other school function, is a political statement protected by the First Amendment. In 1980 a gay student in Rhode Island sued his school for refusing to let him attend his senior prom with a male date, and won. The court concluded that unless the school had a solid factual basis for believing that a same-gender couple would cause severe disruption, the school had to permit everyone to attend with his or her chosen date. The court even required that the school provide security in case the couple was harassed. (Fricke v. Lynch, 1980). Also, Title IX bars a school from discriminating by gender in its prom invitations. Are gay students protected from discrimination and harassment? Gay students, like all other students, have a right to equal protection under the law as stated in the Equal Protection Clause of the Fourteenth Amendment. This promise includes a safe school environment free from harassment. Although sexual orientation is not a “protected class,” meaning the courts do not protect the rights of gays and lesbians with the same vigilance they apply to race and gender discrimination, recent court rulings have made it clear that there is no rational basis for a state to perpetuate anti-gay bigotry. (Nabozny v. Podlesny, 1996). In the context of public schools, this decision means that school officials must confront and deal with anti-gay harassment just as they would all other harassment. Does my school have to have a policy specifically addressing anti-gay harassment? Probably. Title IX, a 1972 statute barring sex discrimination in federally funded educational programs, does not apply specifically to anti-gay harassment but can be used to combat it if certain conditions are met. Modifications made to Title IX by the Clinton Administration hold that anti-gay harassment that creates a “sexually hostile environment” is illegal, such as harassment by sexual conduct that rises to a level in which the victim is unable to access educational opportunity at the school. Schools have a legal responsibility to adopt sexual harassment policies inclusive of anti-gay harassment, as well as to define and publish complaint procedures. If your public school lacks these harassment rules it is in danger of losing its federal funding. Can my school get sued for peer harassment of gay students occurring at school? Yes. A 1997 Supreme Court decision holds that public schools receiving federal funds can be held liable for damages from student-on-student anti-gay harassment, and stipulates that a school district can be held legally accountable when it demonstrates “deliberate indifference” to pervasive anti-gay hostility. (Davis v. Morgan County, 1994). Students who have experienced harassment should follow the school’s established procedure for reporting it. Can I get in trouble for asking a teacher for materials about gay youth issues? It depends. If the conversation takes place outside the classroom and any school-sponsored activities, then it is a personal matter and should not be subject to any school restrictions. However, schools have discretion to restrict information that teachers in their official capacity can give to students. Local school district policies are the first place to look for a clear answer to this question. Try looking in the school library first to see if any materials are available to you there. Can my parents elect to pull me from a class with gay-relevant, non-sexual content? Consult your school district’s policy for guidelines as to whether the teacher is required to inform parents of controversial content in his or her classes, the parent’s right to remove his or her child, and the student’s right to opt out of certain classes. Web Links: |
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