Settlement Ends Harassment Investigation Against Minnesota School District

This week, the Departments of Education and Justice announced that the Anoka-Hennepin school district in Minnesota will agree to a settlement resolving the Departments' joint investigation of claims that the district's failure to investigate claims of gender-based harassment violates Title IX. The settlement also terminates litigation entered into on behalf of six student plaintiffs who have suffered harassment at the hands of their peers because they were gay, perceived gay, or have gay parents. In recent years, four students at Anoka-Hennepin have committed suicide in response to bullying.

Justice officials are calling the settlement "the most comprehensive and detailed school harassment agreement in the history of the Department of Justice." It requires the school district to identify and quickly address "hot spots" from which multiple complaints of harassment originate. Other provisions of the agreement require the school district to:

• Retain an expert consultant in the area of sex-based harassment to review the district’s policies and procedures concerning harassment;
• Develop and implement a comprehensive plan for preventing and addressing student-on-student sex-based harassment at the middle and high schools;
• Enhance and improve its training of faculty, staff and students on sex-based harassment;
• Hire or appoint a Title IX coordinator to ensure proper implementation of the district’s sex-based harassment policies and procedures and district compliance with Title IX;
• Retain an expert consultant in the area of mental health to address the needs of students who are victims of harassment;
• Provide other opportunities for student involvement and input into the district’s ongoing anti-harassment efforts;
• Improve its system for maintaining records of investigations and responding to allegations of harassment;
• Conduct ongoing monitoring and evaluations of its anti-harassment efforts; and
• Submit annual compliance reports to the departments.

The consent decree will remain in place for five years.

Eighth Circuit Affirms Jury's Dismissal of Gay-Slur Harassment Case

Earlier this month, the Eight Circuit Court of Appeals affirmed the a jury's dismissal of a Title IX harassment case against the Fayetteville (Arkansas) School District (earlier posts here, here, and here). The plaintiff, William "Billy" Wolfe sued the district to challenge their response to harassment that included anti-gay epithets by his peers. After a trial, the jury decided that as a matter of fact, the anti-gay name-calling was not motivated by Wolfe's perceived sexual orientation or any gender nonconforming behavior, and therefore could not be addressed by Title IX. The school district presented evidence that the students who harassed Billy were retaliating against him for bullying someone else, which allowed the jury to label this an instance of generic bullying rather than sexual harassment.



Wolfe's appeal challenged the language of the jury instructions, which required evidence that the harassers were targeting Wolfe because they perceived him to be gay or gender-nonconforming, in order to find in his favor. Wolfe argued that the jury should have been given broader leeway to find in his favor, including based on a finding that his harassers spreading of false rumors about his homosexuality in order to "debase his masculinity." But citing Supreme Court and other court decisions that emphasize Title IX's application to discrimination because of sex, the appellate panel rejected Wolfe's argument that Title IX applies when the means of harassment are linked to gender when the motive is apparently not.

School District with Sexual Orientation "Neutrality" Policy Targeted by Lawsuit and Investigation

The Anoka-Hennepin School District is the only district in Minnesota with a curriculum policy that requires teachers and staff to remain "neutral" on sexual orientation issues, deferring instead to students' "family homes, churches, and community organizations" to disseminate attitudes and information about homosexuality.

Two major civil rights organization, the National Center for Lesbian Rights and the Southern Poverty Law Center, have sued the district on behalf of LGBT student plaintiffs who experienced harassment and discrimination at Anoka-Hennepin schools. They argue that the neutrality policy amounts to gag-order that contributes to a hostile environment for LGBT students by rendering teachers ineffective at dealing with LGBT harassment when it occurs and at laying a foundation of inclusion and appreciation for diverse sexual orientations that could prevent harassment of LGBT students in the first place. They argue that the policy singles out LGBT students for exclusion in violation of the federal Constitution's Equal Protection Clause, Title IX, and the Minnesota Human Rights Statute.

Meanwhile, the Justice Department and the Department of Education's Office for Civil Rights are investigating allegations that Anoka-Hennepin School District is responsible for bullying and harassment motivated by students' failure to conform to gender stereotypes in violation of Title IX. Four students have committed suicide in recent years in apparent reaction to such harassment, though reports suggest it is not clear whether suicides or the district's sexual orientation "neutrality" policy are part of the investigation.

How Anoka-Hennpin's policy fares in court and in this government investigation could affect other states with restrictions on teaching about homosexuality. Reportedly, these states include Alabama, Arizona, Louisiana, Mississippi, Oklahoma, South Carolina, Texas and Utah, while Tennessee considered such legislation earlier this year.

Settlement Follows OCR Investigation of Anti-Gay Bullying and Suicide

In January, we blogged that the Department of Education's Office for Civil Rights had undertaken an unprecedented investigation by agreeing to look into charges that a school district failed to protect a middle-school student from anti-gay bullying that resulted in the student's suicide. Today OCR announced that the school district, Tehachapi Unified in California, has agreed to a settlement in response to OCR's finding that the school district was in violation of Title IX. Specifically, OCR determined that the student, Seth Walsh, was targeted for his "nonconformity with gender stereotypes, including his predominantly female friendships and stereotypically feminine mannerisms, speech and clothing." Additionally, the harassment was severe and pervasive, and that the school officials knew about it and did not adequately respond.

Under the terms of the settlement, the school district has agreed to a number of reforms, including revision of its harassment policies to address gender-based harassment, better training and education for its students, teachers, administrators, a survey assessment of the school climate regarding harassment, and responding to the climate through measures determined by consultation with an advisory committee, of administrators, students and parents.

These settlement terms are in my opinion are not so much punitive as simply "best practices" for prevention of bullying and harassment. Other school districts should not wait for a situation to escalate into a tragedy and government intervention before taking this list on themselves.

Dept of Ed Letter Supports Gay-Straight Alliances

Yesterday, the Department of Education circulated a "Dear Colleague" Letter to remind and apprise elementary and secondary schools of the government's position that schools must provide equal access and support to student clubs formed around shared interest in sexual orientation discrimination, namely, gay-straight alliances (GSAs). The Department's interpretation is not rooted in Title IX, however, whose prohibition on sex discrimination would seemingly not apply to viewpoint discrimination on the basis of sexual orientation. Rather, the Department rooted its interpretation in another law, the Equal Access Act. Congress passed this law in 1984 because it was concerned that schools were not allowing religion-based student groups meet on campus. But it applies to all student groups. As the letter explains,

The general rule, approved by the U.S. Supreme Court, is that a public high school that allows at least one noncurricular student group to meet on school grounds during noninstructional time (e.g., lunch, recess, or before or after school) may not deny similar access to other noncurricular student groups, regardless of the religious, political, philosophical, or other subject matters that the groups address.

Of course, a school wishing to deny access to a GSA may choose to have no extracurricular clubs at all, as a Utah school district once did. But the Department of Education's letter urges schools to consider the role of such clubs in fostering the kind of welcoming and supportive atmosphere that can be an antidote to the bullying crisis which has claimed several gay students' lives.

New Jersey Presses Anti-Gay Discrimination Charges Against School District

The federal Department of Education is not the only agency trying to hold schools accoutable for their role in bullying of students who are or perceived to be gay.

The New Jersey Office of Civil Rights has reportedly filed a complaint with the state's Department of Law and Public Safety against Ridgewood Public School District, alleging that it violated the state nondiscrimination law when it discriminated against then-high school student Matthew Zimmer. The district allegedly committed discrimination against Matthew when his health teacher outed him to his class, and when school officials painted over a "gay must die" graffiti without addressing the incident with the student body. The agency believes that the district's conduct created an environment that denied Matthew of his education by forcing him to withdraw from school.

Unlike Title IX, New Jersey law enumerates protection against discrimination based on sexual orientation. This gives the state agency wider latitude than its federal counterpart to consider acts of discrimination that are motivated solely by the student's orientation, rather than only those overlapping with the student's gender nonconformity. The article does not say whether Matthew was targeted for appearing or behaving in a nonmasculine manner, but if he was not, this may have been a harder case to pursue under Title IX. It's therefore a good illustration for why it is important for state laws to include sexual orientation in their antidiscrimination laws. As this map illustrates, most states do not have such comprehensive laws.

ESPN Magazine Profiles Homophobia and Recruiting

Props to ESPN The Magazine, for publishing an excellent profile on role of homophobia in recruiting for women's college basketball. Here's the first paragraph, which describes an example of the problem:

On every top recruit's college visit, there comes the moment of the final pitch, when the head-spinning hoopla finally gives way to the business of basketball, when the high school girl steps away from the rah-rah of all the games and the ego-stroking of all the VIP intros to sit down with the head coach. During one teen's big moment, a heart-to-heart with Iowa State's Bill Fennelly, the decorated coach of 23 years sang an insistent refrain. "He kept drilling that 'this would be a family,'" says the player, who asked not to be named. "'You should come here,' he said, 'because we're family-oriented.'"

The article goes on to unpack the references to family and reveal them for the veiled homophobia they contain. Though it presents quotes from defenders of the term -- like Fennelly himself, who defends his right to sell what he thinks his program has to offer, and UConn's Geno Auriemma -- the input from coaches, players, and scholars presents a far more persuasive case that recruits and their families interpret the family rhetoric to be "cloaking" something else. Specifically, it is a suggestion that here, unlike other programs, you don't have to worry about lesbians coaches and teammates. Backing this up, the Magazine presents the results of its own survey of current and recent players, 55% of whom said that sexual orientation was an "underlying topic of conversation" in recruiting talks.

The article also makes a persuasive case for why this is bad for the game. Unlike other forms of negative recruiting, like suggestions that an opponent coach is violating rules, or planning to leave the program -- the lesbian variety is unique to the women's game, and is operating as what Professor Heather Barber calls "subtle weapon against programs led by unmarried female coaches." It is a major factor in the disproportionately low number of head coaching jobs held by women. Homophobia not only deters some women from going into coaching in the first place, the threat of a lesbian stigma also keeps women isolated and prevents them from forging mentor relationships and networks that are necessary for advancement in the coaching profession. It is even rumored to be the reason why the biggest powerhouse teams in the game, Tennessee (coached by an unmarried woman, Pat Summit) and Connecticut (coached by a married man, the aforementioned Auriemma) don't play a head-t0-head game anymore (though the article did not present any evidence to substantiate the rumor, only that the rumor exists). More importantly, it is oppressive to student athletes, like Emily Nkosi (nee Niemann) who played for Baylor until she couldn't stand the closet any more. She left Waco because in her words, "my internalized homophobia made me believe that if people found out I was gay, they would kill me."

Ending on a hopeful note, the article echoes coaches and others calling for better education and enforcement of recruiting violations, and a campaign to raise the ethical bar from within the coaching profession. More optimistically, it suggests that the changing cultural attitudes about lesbians will eventually catch up to athletics and render the lesbian stigma meaningless there too. Veiled homophobic references will backfire when they are addressed to recruits who are looking for team atmosphere that is open and affirming of their or their teammates' lesbian orientation.

Coach Sues University of Minnesota to Challenge Anti-gay Discrimination

Last week, former University of Minnesota women's golf coach Katie Brenny reportedly filed suit against the university and officials, arguing that she was forced to resign by anti-gay hostility in the athletic department. Brenny charges that the university violates the state of Minnesota's Human Rights Law, which unlike Title IX, covers discrimination on the basis of sex and sexual orientation. Brenny alleges that though she was hired as associate head coach of the women's golf team, she was never permitted to carry out coaching duties, as she reassigned to administrative duties soon after arriving at the University, while the someone else took over the team. The University denies that it discriminated against Brenny, while Brenny argues that she is entitled to compensation for lost wages and the expense of finding another job, as well as humiliation, embarrassment, and distress.

OCR Investigates Anti-Gay Abuse that Lead to Suicide

The Office for Civil Rights will reportedly investigate claims that the Tehachapi Unified School District in California failed to protect a student from anti-gay bullying and harassment that resulted in the student's suicide in September. This appears to be the first investigation of its kind, coming on the heels of OCR's guidance letter to schools that delineates schools' responsibilities under Title IX to address sexual orientation discrimination that overlaps with sex discrimination, like where the student is targeted for failing to conform with stereotypes about sex and gender. The student whose suicide has prompted this investigation was thirteen-year-old Seth Walsh, who hanged himself from a tree in his backyard after fellow students at Jacobsen Middle School harassed him because he was openly gay, and because if his mannerisms and appearance. The investigation will determine whether school officials responded appropriately to bullying that they knew or should have known was going on.

OCR "Dear Colleague" Letter Addresses Title IX and Bullying

Today the Department of Education's Office for Civil Rights sent letters of guidance to thousands of educational institutions across the country, reminding them of their obligation under Title IX and other civil rights laws to protect students from bullying and harassment.

OCR's letter provided hypothetical examples to illustrate the type of harassment that would warrants protection under Title IX (as well as other examples about race, ethnicity, and disability). One example seemed loosely based on the recent bullying of a Massachusetts teenager that resulted in her suicide:

Shortly after enrolling at a new high school, a female student had a brief romance with another student. After the couple broke up, other male and female students began routinely calling the new student sexually charged names, spreading rumors about her sexual behavior, and sending her threatening text messages and e‐mails. One of the student’s teachers and an athletic coach witnessed the name calling and heard the rumors, but identified it as “hazing” that new students often experience. They also noticed the new student’s anxiety and declining class participation. The school attempted to resolve the situation by requiring the student to work the problem out directly with her harassers.

OCR used this example to make several points: one, that harassment based on a student's sexual behavior is covered by Title IX, two, that harassment may take the form of text messages and rumor-spreading, and three, that school officials did not respond properly by requiring the students to work it out. Rather, the school should have investigated the situation and taken preliminary steps to separate the accuser from the harassers.

Another example, involving bullying of LGBT students, also seemed ripped from recent headlines:

Over the course of a school year, a gay high school student was called names (including anti‐gay slurs and sexual comments) both to his face and on social networking sites, physically assaulted, threatened, and ridiculed because he did not conform to stereotypical notions of how teenage boys are expected to act and appear (e.g., effeminate mannerisms, nontraditional choice of extracurricular activities, apparel, and personal grooming choices). As a result, the student dropped out of the drama club to avoid further harassment. Based on the student’s self‐identification as gay and the homophobic nature of some of the harassment, the school did not recognize that the misconduct included discrimination covered by Title IX. The school responded to complaints from the student by reprimanding the perpetrators consistent with its anti‐bullying policy. The reprimands of the identified perpetrators stopped the harassment by those individuals. It did not, however, stop others from undertaking similar harassment of the student.

With this hypothetical, OCR clarified that while Title IX does not cover discrimination on the basis of sexual orientation, that does not absolve school districts from their obligation to address sexual orientation-based harassment that "overlaps" with sex-based harassment. Specifically, harassment that targets a student for failing to conform to sex stereotypes, such as the teasing in this hypothetical, is sex discrimination that warrants school officials' response. According to OCR's analysis of this hypothetical, the school officials should have done more than reprimand identified perpetrators. Additional steps include: notifying the victim's teachers and otherwise increasing efforts to monitor the situation to prevent ongoing harassment, making a clear statement that such conduct violates the school's policy on harassment, conducting school-wide education on civil rights and tolerance as they relate to gender issues, and providing counseling or other appropriate resources to affected students.

In the end, OCR's guidance letter does not tell schools officials anything they should not already know. After all, all of these responsibilities derive from existing agency and judicial interpretations of Title IX. But judging by the number of sexual harassment cases we blog about here, the word hasn't been getting out and hasn't been sinking in. So this letter was necessary. And hopefully, it will provide school officials with the impetus and the means to take harassment seriously.

Sexual Harassment Litigation Roundup

Here is a roundup of news related to Title IX cases involving sexual harassment and assault:

• A former student at Arizona State has sued the Board of Regents claiming that the university failed to adequately protect her from a rape that occurred at a fraternity house.

• A district court judge set aside a jury verdict in favor of a Michigan student, who had sued the school district over its response to other students' perpetration sexual and anti-gay harassment. The case had been reinstated by the 6th Circuit after the district court dismissed on summary judgment. But considering new evidence presented at the jury trial, the district court judge held that the harassment was not severe and pervasive, but typical of middle school students, and that the school responded adequately by investigating each incident of harassment and punishing the perpetrators. See Patterson v. Hudson Area Schools, 2010 WL 2670167 (E.D. Mich. July 1, 2010).
  

• A district court in Indiana dismissed a plaintiff's case stemming from peer harassment because there was no support for plaintiff's claim the abuse was motivated by his gender nonconformity, only his perceived sexual orientation (which is not covered by Title IX). Turpin v. Good, 2010 WL 2560421 (S.D. Ind., June 24, 2010).
  

• A district court in Illinois dismissed a case in which a student challenged the university's response to his complaints about a professor's weird and inappropriate statements about the plaintiff's hair (the professor said that his hair would be sexy on a lady, and that if the plaintiff was a lady, he would want to date him). The court held that this did not constitute harassment based on the plaintiff's sex. The court also considered the fact that the professor harassed male and female students equally to cut against the plaintiff's argument that the harassment was motivated by his sex. Milligan v. Bd. of Trustees, 2010 WL 2649917 (S.D. Ill. June 30, 2010).
  

• A district court in Wisconsin denied a university's motion for summary judgment in a case arising out of a resident advisor's alleged assault on the plaintiff, a student, in her dorm room at the University of Wisconsin-Parkside. The court agreed that the plaintiff's complaint contained sufficient allegations -- including that campus officials waited three days before calling the police -- that could allow a jury to find the university liability under Title IX. Albiez v. Kaminski, 2010 WL 2465502 (E.D. Wisc. June 14, 2010).
  

Litigation Updates

Here is a roundup of recent developments in ongoing Title IX cases that we've blogged about before.

• Potential settlement in J.L. v. Mohawk Central School District. This is the gay bullying case in upstate New York, that was filed by the ACLU last summer and in which the Department of Justice recently intervened on the side of the plaintiff. News reports suggest that the parties recently considered a settlement agreement that would have provided $50,000 to the plaintiff, $25,000 to the ACLU, district-wide training on appropriate responses to anti-gay harassment, and payment to cover the plaintiff's continued therapy. However, this agreement was never signed off upon and the parties have "moved beyond" this particular draft, according to school district's attorney quoted in the article. The article suggests that the draft settlement is evidence that the parties are at least considering settlement, as well as the general topics on the negotiation table.

• Hearing in Doe v. Vermilion Parish School Board. Last fall we blogged about the ACLU's challenge to the sex-segregated classes in Rene Rost Middle School under the Constitution and Title IX. On Thursday, the federal district court in Louisiana heard arguments in support of the plaintiffs' motion for a preliminary injunction, which would halt single sex education while the judge considered the merits of the case. An ACLU attorney recently posted this summary and analysis of the case at the Huffington Post blog.
  

• Denial of defendant's motion to dismiss Mary V. v. Pittsburgh Public Schools. This is the case that made news last summer because the plaintiff alleged that the school failed to protect her daughter from bullying that was so severe, it contributed to psychological harm, including anorexia. Judge Ambrose (who Title IX fans may remember from the Slippery Rock litigation) determined that the plaintiff's case could go forward because she had adequately plead all of the elements of a Title IX peer harassment case. In particular, that the harassment was motivated by the victim's sex (in particular, her "developing adult female figure"), that plaintiff and her daughter had met with school officials about the harassment, thus providing actual notice, that the school district's response was inadequate to amount to deliberate indifference, and that the harassment occurred on a daily basis and throughout the day, and thus was severe and pervasive. This decision paves the way for litigation to continue. Next steps may include discovery, additional dispositive motions, trial, or in the alternative, settlement. The decision on the motion can be found at 2010 W.L. 562909 (W.D. Pa. Feb. 17, 2010).
  

Student Nondiscrimination Act Introduced in Congress

Yesterday, Representative Jared Polis (D-Co.) introduced in the House of Representative a bill that would provide Title IX-like protection to LGBT students. If passed, the Student Nondiscrimination Act would offer remedies for discrimination that targets students because of their "actual or perceived sexual orientation or gender identity."

This law is sorely needed. GLSEN reports that 86.4% of LGBT students who responded to a 2007 school climate survey said they had been harassed in the past year. 60.8% said they felt unsafe at school because of their sexual orientation. Yet, there is no federal law protects students from discrimination on the basis of sexual orientation and gender identity, like there are for protected categories of sex (Title IX), race (Title VI of the Civil Rights Act, which applies to public accommodations), and disability (Rehabilitation Act, ADA). Some courts have interpreted Title IX and the Equal Protection Clause to protect LGBT students, but no uniform standard or scope of protection has resulted from these limited decisions. Additionally, while 14 states enumerate protection for students on the basis of sexual orientation and an additional 10 supply protection on the basis of gender identity, students in most states are without protection of state law (see map here). The Student Nondiscrimination Act would provide a uniform standard of protection, one that would not be subject to the interpretation of federal courts or to the willingness of state legislatures. I hope to be able to provide many more updates to this post as the bill makes its way through Congress and the President and becomes the law of the land.

Justice Department Takes Up Anti-Gay Bully Case

Last summer we blogged about a peer harassment case filed against the Mohawk School District in upstate New York. The plaintiff, an openly-gay ninth grader named Jacob, claims that the district violated Title IX by failing to protect him from anti-gay bullying and harassment by his peers.

Recently, the Department of Justice filed for leave to intervene on Jacob's behalf. It plans to advance the argument that Title IX's prohibition against discrimination on the basis of sex extends to discrimination targeting a plaintiff for their failure to comply with gender stereotypes such as that which Jacob endured. This theory of Title IX has been applied by several courts in the past, but other courts (more often in employment rather than education cases) have ruled that gay plaintiffs are not protected by sex discrimination statute because they are targeted because of their sexual orientation rather than their sex.

While DoJ cannot dictate how courts interpret the laws it enforces, its interpretation is often more persuasive to courts than ordinary litigants'. Thus, the Obama administration's motion to intervene is a significant step toward universalizing a broader interpretation of Title IX that gives much-needed protection against bullying that targets LGBT students and those so perceived.

(Via Towleroad.)

Professor Settles Discrimination Case Against Penn State

Penn State and a former assistant professor have reached a settlement to terminate the professor's lawsuit alleging that she was not promoted due to discrimination on the basis of her sexual orientation. The plaintiff, Constance Matthews, had applied for promotion and tenure in 2004, after serving as an assistant professor in the College of Education since 1998. But the promotion and tenure committee denied her application, apparently due to concerns with her research, which focused on lesbian and gay issues. Matthews sued, arguing that the denial was motivated by discrimination because she deserved tenure on the basis of the quality of her research and service to the university.

Today it's reported that Matthews will drop her suit against Penn State. However, the terms of the agreement are sealed, and neither side is sharing any information.

If this sounds familiar, it's because it's not the first time we've blogged about a confidential settlement in a lawsuit raising sexual orientation discrimination claims against Penn State. Former basketball player Jennifer Harris's case, which challenged her dismissal from the team on the basis of her sexual orientation, ended similarly. In fact, Matthews's own lawyers recognized that Harris's case might help them establish a pattern of discrimination at the university level, and were able to convince a judge to let them subpoena materials about that case notwithstanding the confidentiality agreement between Harris and Penn State.

Cases often settle before a judge or jury can examine the facts, and that sometimes parties can negotiate more favorable settlements in exchange for agreeing to keep the terms confidential. But I still can't shake the feeling that something is amiss in the Happy Valley and the disappointment in another missed opportunity to expose possible discriminatory practices.

Update 8/26: this post was amended to correct an error that was brought to my attention by a reader. I had posted that Matthews's lawyers were unsuccessful (referring to this prior post) in their efforts to expose discovery materials from the Harris case, when in fact, they did prevail in a motion for reconsideration. I regret the error, especially in light of my co-blogger's post about the judge's reversal of his initial decision!) The materials Matthews's lawyers were able to subpoena from Portland and Penn State remain confidential, so it is impossible to speculate on the extent to which they factored in to the settlement negotiations between Matthews and the university.

NYCLU Files Lawsuit Over Anti-Gay Bullying

This summary is not available. Please click here to view the post.

School District Will Pay $25K to Settle Gay Harassment Suit

The Anoka-Hennepin School District in Minnesota recently agreed to a $25,000 settlement in response to a student's claims that he was verbally harassed by two of his teachers because they believed he was gay (additional press is here and here). According to a report by the Minnesota Human Rights Commission, which investigated the claims, a teacher named Diane Cleveland "singled him out on nearly a daily basis by making jokes, comments and innuendos about her perception of his sexual orientation" -- for example, that the student's "fence swings both ways," and that he had a "thing for older men." The second teacher, Walter Filson "would repeat, add his own jokes, and allow other students in the class to joke about the boy's perceived sexual orientation." The Commission also found that district did little to curb the harassment even after the student's mother complained. Filson was not removed from the classroom even after the district confirmed his participation, while Cleveland was only reassigned for a week and completed only 1 day of her assignment to work on curriculum development and "reflect on equality and diversity in the classroom." The student ended up transferring to another district, 25 miles from his home.

New York High School Sued Over Antigay Harassment

Lambda Legal has filed suit against Indian River High School (in upstate New York) on behalf of Charlie Pratt and his sister, Ashley Petranchuk. The lawsuit alleges that Charlie suffered harassment and abuse at the hands of his peers while school officials failed to intervene. Lambda charges that the school's anti-gay bias is also evidenced in the principal's refusal to let Ashley start a gay-straight alliance to support her brother.

This article in Outcome (Buffalo's Gay Newspaper) describes the harassment Charlie endured:

Students attacked him relentlessly with antigay and sexist slurs including names like "faggot," "sissy," "queer," and "fudgepacker," often in the presence of teachers who failed to intervene. Students also pushed him into walls and lockers, threatened him, threw food and other objects at him, spat on him, and vandalized his locker with antigay slurs. Staff members at the high school joined the harassment by ridiculing Charlie with stereotypically effeminate gestures in front of other students.

Then-principal James Kettrick – now the district’s superintendent ­­ refused to take appropriate action, and instead told Charlie and his parents, Bobbi and Todd Petranchuk, that Charlie should "tone it down" to avoid harassment. The principal also refused Bobbi Petranchuk’s request to train teachers to address antigay bullying, and he failed to change the school’s written policies to match state anti-harassment laws covering sexual orientation. Left with no other options, Charlie’s parents withdrew him from school for his own protection.

Lambda claims that the school's conduct violates the First Amendment and Equal Protection Clause, as well as Title IX and New York State's antidiscrimination law. With respect to the Title IX claim, this case seems like a slam dunk. Telling the victim to "tone it down" seems to me a clear example of "deliberate indifference" to known harassment.

Indiana HS OK's Girl's Tuxedo

An update on the prom story we blogged about last week: Indiana's Lebanon High School has lifted its requirement that girls wear formal dresses to the prom. The ACLU had challenged the policy in court on behalf of a lesbian client who intends to wear a tuxedo in consistency with her sexual orientation and preferred gender presentation.

It's Prom Season Again, Bring on the Lawsuits

Every year around this time it seems we get to post about a student's lawsuit challenging a school district's gender-based prom policies. This year's lawsuit targets Lebanon (Indiana) School District, which has refused to allow a lesbian student to wear a tuxedo to her high school prom. The student, represented by the ACLU, claims that the restriction violates her First Amendment right to freely express her sexual orientation, and is an illegal sex discrimination in violation of Title IX. A legal scholar quoted in the article points out that gender-based dress codes, such as those prohibiting boys from wearing earrings, have been upheld by courts, but that prom-specific dress codes have not received definitive treatment.

The fact that this policy appears to target the student because of her sexual orientation could help the ACLU distinguish it from the typical dress code case and may underscore her free expression claims in a way that a more general gender-based dress-code policy (such as one prohibiting all girls from wearing pants to school?) would not.

Moreover, as a student interviewed in the story pointed out, there is a certain irony in morals-based opposition to girls in tuxedos, which is more "conservative" attire than the often revealing and sexually-suggestive dresses that girls are allowed to wear. On the other hand, she aptly stated, "A tuxedo's not hurting anybody. Why should it matter?"