Responding to the growing number of LGBT teen suicides in recent weeks, the Obama administration announced today that “schools that don’t address the bullying of gay students may lose U.S. funds for not enforcing gender-discrimination laws.” In a first of its kind anti-bullying guidance distributed to some 15,000 school districts and colleges that receive federal funds, the Department of Education clarifies that Title IX of the Education Amendments of 1972 “requires schools to take action against bullying—including gender-based and sexual harassment of LGBT students.”
“A school is responsible for addressing harassment incidents about which it knows or reasonably should have known,” the memo instructs. “In all cases, schools should have well-publicized policies prohibiting harassment and procedures for reporting and resolving complaints that will alert the school to incidents of harassment.” The memo provides “hypothetical examples of how a school’s failure to recognize student misconduct as discriminatory harassment violates students’ civil rights” and describes “how the school should have responded in each circumstance.” Here is the example of LGBT bullying:
Although Title IX does not prohibit discrimination based solely on sexual orientation, Title IX does protect all students, including lesbian, gay, bisexual, and transgender (LGBT) students, from sex discrimination. When students are subjected to harassment on the basis of their LGBT status, they may also, as this example illustrates, be subjected to forms of sex discrimination prohibited under Title IX. The fact that the harassment includes anti-LGBT comments or is partly based on the target’s actual or perceived sexual orientation does not relieve a school of its obligation under Title IX to investigate and remedy overlapping sexual harassment or gender-based harassment. In this example, the harassing conduct was based in part on the student’s failure to act as some of his peers believed a boy should act. The harassment created a hostile environment that limited the student’s ability to participate in the school’s education program (e.g., access to the drama club). Finally, even though the student did not identify the harassment as sex discrimination, the school should have recognized that the student had been subjected to gender-based harassment covered by Title IX.
In this example, the school had an obligation to take immediate and effective action to eliminate the hostile environment.
“This is a wonderful first step as far as what the Department of Education is capable of doing with the existing laws, now we need that comprehensive law like the Safe Schools Improvement Act that gives more clarity to the states and the school district as to how they can address this problem,” Daryl Presgraves, Media Relations Manager of the Gay, Lesbian and Straight Education Network (GLSEN) told me during a phone interview.
“The practice right now falls to the states to enact enact anti-bullying laws absent any sort of federal action which we are hopeful will happen in the future.” Currently, 45 states that have enacted anti-bullying legislation but only 10 have a law that protects students from bullying based on sexual orientation and gender identity. A 2005 survey conducted by GLSEN found that these general laws do very little to prevent LGBT bullying, while “LGBT students who were covered by a comprehensive safe school policy that specifically protects sexual orientation were less likely to report being harassed at school, more likely to tell school officials when incidents of harassment occurred..and more than twice as likely to have a teacher intervene when harassment occurred versus students covered by a non-enumerated, or ‘generic,’ policy.” “Having a law that says don’t bully is great and feels good, but in practice, doesn’t necessary do a whole lot to address bullying in schools,” Presgraves added.
There are two pending pieces of federal legislation that would help enhance lax standards.. The Safe Schools Improvement Bill — sponsored by Representative Linda Sánchez (D-CA) in the House — would require schools and districts receiving federal funds “to adopt codes of conduct specifically prohibiting bullying and harassment, including on the basis of sexual orientation and gender identity.” Sen. Al Franken’s (D-MN) Student Non-Discrimination Act would prohibit discrimination in schools on the basis of sexual orientation and gender identity or expression.
Presgraves said that the Obama administration is expanding on President Clinton’s interpretation of Title IX. “The Department of Justice under the Clinton administration, their interpretation of Title IX related to in some ways protections of bullying based off of sexual orientation and gender expression. The Bush administration did not intervene in cases or show their support in cases of students protected by Title IX based on sexual orientation and gender identity expression,” he said. “So what this essentially does is it goes back to the Clinton-era interpretation of the law and adds to it by putting out this clear message to schools.”